exv4w1




 


Exhibit 4.1




EXECUTION COPY




 






GENERAL MARITIME CORPORATION,




THE SUBSIDIARY GUARANTORS PARTIES HERETO,




AND




THE BANK OF NEW YORK MELLON,

AS TRUSTEE




12% Senior Notes due 2017




 






INDENTURE




Dated as of November 12, 2009




 






 












 



 


Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Definitions and Incorporation by Reference
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.1. Definitions
	 	 	1	 
	SECTION 1.2. Other Definitions
	 	 	33	 
	SECTION 1.3. Incorporation by Reference of Trust Indenture Act
	 	 	35	 
	SECTION 1.4. Rules of Construction
	 	 	36	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Securities
	 	 	36	 
	 
	 	 	 	 
	SECTION 2.1. Form, Dating and Terms
	 	 	36	 
	SECTION 2.2. Execution and Authentication
	 	 	44	 
	SECTION 2.3. Registrar and Paying Agent
	 	 	45	 
	SECTION 2.4. Paying Agent to Hold Money in Trust
	 	 	46	 
	SECTION 2.5. Securityholder Lists
	 	 	46	 
	SECTION 2.6. Transfer and Exchange
	 	 	46	 
	SECTION 2.7. Form of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors
	 	 	50	 
	SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers Pursuant
to Regulation S
	 	 	52	 
	SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities
	 	 	53	 
	SECTION 2.10. Outstanding Securities
	 	 	54	 
	SECTION 2.11. Temporary Securities
	 	 	54	 
	SECTION 2.12. Cancellation
	 	 	54	 
	SECTION 2.13. Payment of Interest; Defaulted Interest
	 	 	55	 
	SECTION 2.14. Computation of Interest
	 	 	56	 
	SECTION 2.15. CUSIP and ISIN Numbers
	 	 	56	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Covenants
	 	 	56	 
	 
	 	 	 	 
	SECTION 3.1. Payment of Securities; Payment of Additional Amounts
	 	 	56	 
	SECTION 3.2. SEC Reports
	 	 	58	 
	SECTION 3.3. Limitation on Indebtedness
	 	 	59	 
	SECTION 3.4. Limitation on Restricted Payments
	 	 	63	 
	SECTION 3.5. Limitation on Liens
	 	 	69	 
	SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries
	 	 	69	 
	SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock
	 	 	72	 
	SECTION 3.8. Limitation on Affiliate Transactions
	 	 	75	 
	SECTION 3.9. Change of Control
	 	 	77	 
	SECTION 3.10. Limitation on Sale of Capital Stock of Restricted Subsidiaries
	 	 	78	 




ii








 





	 	 	 	 	 
	 	 	Page
	SECTION 3.11. Future Subsidiary Guarantors
	 	 	79	 
	SECTION 3.12. Maintenance of Office or Agency
	 	 	79	 
	SECTION 3.13. Corporate Existence
	 	 	80	 
	SECTION 3.14. Payment of Taxes and Other Claims
	 	 	80	 
	SECTION 3.15. Payments for Consent
	 	 	80	 
	SECTION 3.16. Compliance Certificate
	 	 	81	 
	SECTION 3.17. Further Instruments and Acts
	 	 	81	 
	SECTION 3.18. Statement by Officers as to Default
	 	 	81	 
	SECTION 3.19. Covenant Suspension
	 	 	81	 
	SECTION 3.20. Calculation of Original Issue Discount
	 	 	82	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Successor Company
	 	 	82	 
	 
	 	 	 	 
	SECTION 4.1. Merger and Consolidation
	 	 	82	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Redemption of Securities
	 	 	84	 
	 
	 	 	 	 
	SECTION 5.1. Optional Redemption; Optional Tax Redemption
	 	 	84	 
	SECTION 5.2. Election to Redeem; Notice to Trustee
	 	 	85	 
	SECTION 5.3. Selection by Trustee of Securities to Be Redeemed
	 	 	85	 
	SECTION 5.4. Notice of Redemption
	 	 	86	 
	SECTION 5.5. Deposit of Redemption Price
	 	 	87	 
	SECTION 5.6. Securities Payable on Redemption Date
	 	 	87	 
	SECTION 5.7. Securities Redeemed in Part
	 	 	87	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Defaults and Remedies
	 	 	88	 
	 
	 	 	 	 
	SECTION 6.1. Events of Default
	 	 	88	 
	SECTION 6.2. Acceleration
	 	 	91	 
	SECTION 6.3. Other Remedies
	 	 	91	 
	SECTION 6.4. Waiver of Past Defaults
	 	 	91	 
	SECTION 6.5. Control by Majority
	 	 	92	 
	SECTION 6.6. Limitation on Suits
	 	 	92	 
	SECTION 6.7. Rights of Holders to Receive Payment
	 	 	92	 
	SECTION 6.8. Collection Suit by Trustee
	 	 	92	 
	SECTION 6.9. Trustee May File Proofs of Claim
	 	 	93	 
	SECTION 6.10. Priorities
	 	 	93	 
	SECTION 6.11. Undertaking for Costs
	 	 	93	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Trustee
	 	 	94	 
	 
	 	 	 	 
	SECTION 7.1. Duties of Trustee
	 	 	94	 
	SECTION 7.2. Rights of Trustee
	 	 	95	 




iii








 





	 	 	 	 	 
	 	 	Page
	SECTION 7.3. Individual Rights of Trustee
	 	 	97	 
	SECTION 7.4. Trustee’s Disclaimer
	 	 	97	 
	SECTION 7.5. Notice of Defaults
	 	 	97	 
	SECTION 7.6. Reports by Trustee to Holders
	 	 	98	 
	SECTION 7.7. Compensation and Indemnity
	 	 	98	 
	SECTION 7.8. Replacement of Trustee
	 	 	99	 
	SECTION 7.9. Successor Trustee by Merger
	 	 	100	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	100	 
	SECTION 7.11. Preferential Collection of Claims Against Company
	 	 	100	 
	SECTION 7.12. Appointment of Co-Trustees
	 	 	100	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	Discharge of Indenture; Defeasance
	 	 	102	 
	 
	 	 	 	 
	SECTION 8.1. Discharge of Liability on Securities; Defeasance
	 	 	102	 
	SECTION 8.2. Conditions to Defeasance
	 	 	103	 
	SECTION 8.3. Application of Trust Money
	 	 	104	 
	SECTION 8.4. Repayment to Company
	 	 	105	 
	SECTION 8.5. Indemnity for U.S. Government Obligations
	 	 	105	 
	SECTION 8.6. Reinstatement
	 	 	105	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Amendments, Supplements and Waivers
	 	 	105	 
	 
	 	 	 	 
	SECTION 9.1. Without Consent of Holders
	 	 	105	 
	SECTION 9.2. With Consent of Holders
	 	 	106	 
	SECTION 9.3. Compliance with Trust Indenture Act
	 	 	107	 
	SECTION 9.4. Revocation and Effect of Consents and Waivers
	 	 	108	 
	SECTION 9.5. Notation on or Exchange of Securities
	 	 	108	 
	SECTION 9.6. Trustee To Sign Amendments
	 	 	108	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	Subsidiary Guarantee
	 	 	108	 
	 
	 	 	 	 
	SECTION 10.1. Subsidiary Guarantee
	 	 	108	 
	SECTION 10.2. Limitation on Liability; Termination, Release and Discharge
	 	 	110	 
	SECTION 10.3. Right of Contribution
	 	 	110	 
	SECTION 10.4. No Subrogation
	 	 	111	 
	SECTION 10.5. Evidence of Subsidiary Guarantees
	 	 	111	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	111	 
	 
	 	 	 	 
	SECTION 11.1. Trust Indenture Act Controls
	 	 	111	 
	SECTION 11.2. Notices
	 	 	112	 
	SECTION 11.3. Communication by Holders with other Holders
	 	 	113	 
	SECTION 11.4. Certificate and Opinion as to Conditions Precedent
	 	 	113	 




iv








 





	 	 	 	 	 
	 	 	Page
	SECTION 11.5. Statements Required in Certificate or Opinion
	 	 	113	 
	SECTION 11.6. When Securities Disregarded
	 	 	114	 
	SECTION 11.7. Rules by Trustee, Paying Agent and Registrar
	 	 	114	 
	SECTION 11.8. Legal Holidays
	 	 	114	 
	SECTION 11.9. GOVERNING LAW; WAIVER OF JURY TRIAL
	 	 	114	 
	SECTION 11.10. Jurisdiction; Consent to Service of Process
	 	 	114	 
	SECTION 11.11. Currency Indemnity
	 	 	115	 
	SECTION 11.12. No Recourse Against Others
	 	 	116	 
	SECTION 11.13. Successors
	 	 	116	 
	SECTION 11.14. Multiple Originals
	 	 	116	 
	SECTION 11.15. Performance of Obligations under the Registration Rights Agreement
	 	 	116	 
	SECTION 11.16. Table of Contents; Headings
	 	 	116	 
	SECTION 11.17. Severability
	 	 	116	 






	 	 	 
	EXHIBIT A

	 	Form of the Unregistered Note
	EXHIBIT B

	 	Form of the Registered Note
	EXHIBIT C

	 	Form of Subsidiary Guarantee




v








 





CROSS-REFERENCE TABLE




	 	 	 	 	 
	TIA	 	 	Indenture
	Section	 	 	Section
	310(a)(1)
	 	 	7.10	 
	(a)(2)
	 	 	7.10	 
	(a)(3)
	 	 	N.A.	 
	(a)(4)
	 	 	N.A.	 
	(b)
	 	 	7.8; 7.10	 
	(c)
	 	 	N.A.	 
	311(a)
	 	 	7.11	 
	(b)
	 	 	7.11	 
	(c)
	 	 	N.A.	 
	312(a)
	 	 	2.5	 
	(b)
	 	 	11.3	 
	(c)
	 	 	11.3	 
	313(a)
	 	 	7.6	 
	(b)(1)
	 	 	N.A.	 
	(b)(2)
	 	 	7.6	 
	(c)
	 	 	7.6	 
	(d)
	 	 	7.6	 
	314(a)
	 	 	3.2; 3.16	 
	(b)
	 	 	N.A.	 
	(c)(1)
	 	 	11.4	 
	(c)(2)
	 	 	11.4	 
	(c)(3)
	 	 	N.A.	 
	(d)
	 	 	N.A.	 
	(e)
	 	 	11.5	 
	315(a)
	 	 	7.1	 
	(b)
	 	 	7.5; 13.2	 
	(c)
	 	 	7.1	 
	(d)
	 	 	7.1	 
	(e)
	 	 	6.11	 
	316(a)(last sentence)
	 	 	11.6	 
	(a)(1)(A)
	 	 	6.5	 
	(a)(1)(B)
	 	 	6.4	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	6.7	 
	317(a)(1)
	 	 	6.8	 
	(a)(2)
	 	 	6.9	 
	(b)
	 	 	2.4	 
	318(a)
	 	 	11.1	 





 

N.A. means Not Applicable.


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










 



 




          INDENTURE dated as of November 12, 2009, among GENERAL MARITIME CORPORATION, a Marshall
Islands corporation (the “Company”), THE SUBSIDIARY GUARANTORS (as defined herein) and THE
BANK OF NEW YORK MELLON, a New York banking corporation (the “Trustee”), as Trustee.




          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of (i) the Company’s 12% Senior Notes due 2017, issued on the date
hereof (the “Initial Securities”), (ii) if and when issued, an unlimited principal amount
of additional 12% Senior Notes due 2017 in a non-registered offering or 12% Senior Notes due 2017
in a registered offering of the Company that may be offered from time to time subsequent to the
Issue Date (the “Additional Securities”) and (iii) if and when issued, the Company’s 12%
Senior Notes due 2017 that may be issued from time to time in exchange for Initial Securities or
any Additional Securities in an offer registered under the Securities Act as provided in the
Registration Rights Agreement (as hereinafter defined) (the “Exchange Securities,” and
together with the Initial Securities and the Additional Securities, the “Securities”).




ARTICLE I




Definitions and Incorporation by Reference




          SECTION 1.1. Definitions.




          “Additional Assets” means:





	 	(1)	 	any property or assets (other than Indebtedness and Capital
Stock) used or useful by the Company or a Restricted Subsidiary in a Related
Business, including, without limitation, a hull under construction or rights
under a Vessel Construction Contract, any installment payment under a Vessel
Construction Contract, and any repairs, improvements, additions, enhancements,
drydocking or capital improvement of any Vessel;
	 
	 	(2)	 	the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or a Restricted Subsidiary of the Company; or
	 
	 	(3)	 	Capital Stock constituting a minority interest in any Person
that at such time is a Restricted Subsidiary of the Company;




provided, however, that, in the case of clauses (2) and (3), such Restricted Subsidiary is
primarily engaged in a Related Business.




          “Additional Securities” has the meaning ascribed to it in the second introductory
paragraph of this Indenture.




          “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified


[Signature Page to the Indenture]








 



2

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.




          “Applicable Premium” means, with respect to any Security on any applicable redemption
date, the greater of





(1) 1.0% of the principal amount of such Security; and




(2) the excess of:




(a) the present value at such redemption date of (i) the redemption price of such Security
at November 15, 2013 (such redemption price being set forth in Section 5.1) plus
(ii) all required interest payments due on such Security through November 15, 2013
(excluding any interest accrued to the redemption date) computed using a discount rate equal
to the Treasury Rate as of such redemption date plus 50 basis points; over




(b) the principal amount of such Security.



          “Asset Disposition” means any direct or indirect sale, lease (other than an operating
lease entered into in the ordinary course of business), transfer, issuance or other disposition, or
a series of related sales, leases, transfers, issuances or dispositions that are part of a common
plan, of shares of Capital Stock of a Subsidiary (other than directors’ qualifying shares or an
immaterial amount of shares required to be owned by other Persons pursuant to applicable law),
property or other assets (each referred to for the purposes of this definition as a “disposition”)
by the Company or any of its Restricted Subsidiaries, including any disposition by means of a
merger, consolidation or similar transaction.




          Notwithstanding the preceding, the following items shall not be deemed to be Asset
Dispositions:





	 	(1)	 	a disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to a Wholly-Owned Subsidiary;
	 
	 	(2)	 	the sale of Cash Equivalents;
	 
	 	(3)	 	a disposition of inventory in the ordinary course of business;
	 
	 	(4)	 	a disposition of obsolete, scrap or worn out assets that are no
longer useful in the conduct of the business of the Company and its Restricted
Subsidiaries and that is disposed of in each case in the ordinary course of
business;
	 
	 	(5)	 	transactions permitted under Section 4.1;










 



3


	 	(6)	 	an issuance of Capital Stock by a Restricted Subsidiary of the
Company to the Company or to a Wholly-Owned Subsidiary;
	 
	 	(7)	 	for purposes of Section 3.7 only, the making of a
Permitted Investment or a disposition subject to Section 3.4;
	 
	 	(8)	 	an Asset Swap effected in accordance with Section 3.7;
	 
	 	(9)	 	dispositions of assets in a single transaction or series of
related transactions with an aggregate fair market value of less than $5.0
million;
	 
	 	(10)	 	dispositions in connection with Permitted Liens;
	 
	 	(11)	 	the licensing or sublicensing of intellectual property or other
general intangibles and licenses, leases or subleases of other property in the
ordinary course of business which do not materially interfere with the business
of the Company and its Restricted Subsidiaries;
	 
	 	(12)	 	any charter or lien of equipment entered into in the ordinary
course of business and with respect to which the Company or a Restricted
Subsidiary is a lessor (except if it provides for the acquisition of such
assets by the lessee during or at the end of the term thereof for an amount
that is less than the fair market value thereof at the time the right to
acquire occurs); and
	 
	 	(13)	 	foreclosure on assets.





          “Asset Swap” means concurrent purchase and sale or exchange of Related Business Assets
between the Company or any of its Restricted Subsidiaries and another Person; provided that any
cash received must be applied in accordance with Section 3.7.




          “Attributable Indebtedness” in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate borne by the
Securities for the relevant lease period) 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).




          “Average Life” means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, 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 such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (2) the sum of all such payments.




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










 



4




          “Board of Directors” means, as to any Person, the board of directors or managers, as
applicable, of such Person (or, if such Person is a partnership, the board of directors or other
governing body of the general partner of such Person) or any duly authorized committee thereof.




          “Board Resolution” means, with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary or other officer performing similar functions of such
Person to have been duly adopted by the Board of Directors of such Person and to be in full force
and effect on the date of such certification, and delivered to the Trustee.




          “Business Day” means a day other than a Legal Holiday as defined in Section 11.8.




          “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participation 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.




          “Capitalized Lease Obligations” means an obligation that is required to be classified
and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP,
and the amount of Indebtedness represented by such obligation will be the capitalized amount of
such obligation at the time any determination thereof is to be made as determined in accordance
with GAAP, and the Stated Maturity thereof will be the date of the last scheduled payment of rent
or any other amount due under such lease prior to the first date such lease may be terminated
without penalty.




          “Cash Equivalents” means:





	 	(1)	 	securities issued or directly and fully guaranteed or insured
by the United States Government or any agency or instrumentality of the United
States (provided that the full faith and credit of the United States is pledged
in support thereof), having maturities of not more than one year from the date
of acquisition;
	 
	 	(2)	 	marketable general obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition of the United States (provided that the full faith and credit of
the United States is pledged in support thereof) and, at the time of
acquisition, having a credit rating of “A” or better from either Standard &
Poor’s Ratings Services or Moody’s Investors Service, Inc.;
	 
	 	(3)	 	certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits or bankers’ acceptances having maturities of
not more than one year from the date of acquisition thereof issued by any
commercial bank the long-term debt of which is rated at the time of acquisition
thereof at least “A” or the equivalent thereof by Standard & Poor’s Ratings










 



5


	 	 	 	Services, or “A” or the equivalent thereof by Moody’s Investors Service,
Inc., and having combined capital and surplus in excess of $500.0 million;
	 
	 	(4)	 	repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (1), (2) and (3)
entered into with any bank meeting the qualifications specified in clause (3)
above;
	 
	 	(5)	 	commercial paper rated at the time of acquisition thereof at
least “A-2” or the equivalent thereof by Standard & Poor’s Ratings Services or
“P-2” or the equivalent thereof by Moody’s Investors Service, Inc., or carrying
an equivalent rating by a nationally recognized rating agency, if both of the
two named rating agencies cease publishing ratings of investments, and in any
case maturing within one year after the date of acquisition thereof; and
	 
	 	(6)	 	interests in any investment company or money market fund which
invests primarily in instruments of the type specified in clauses (1) through
(5) above.





          “Change of Control” means:





	 	(1)	 	any “person” or “group” of related persons (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 Rules
13d-3 and 13d-5 under the Exchange Act, except that such person or group shall
be deemed to have “beneficial ownership” of all shares that any such person or
group 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 its successor by
merger, consolidation or purchase of all or substantially all of its assets)
(for the purposes of this clause, such person or group shall be deemed to
beneficially own any Voting Stock of the Company held by a parent entity, if
such person or group “beneficially owns” (as defined above), directly or
indirectly, more than 50% of the voting power of the Voting Stock of such
parent entity); or
	 
	 	(2)	 	the first day on which a majority of the members of the Board
of Directors (but not committees thereof) of the Company are not Continuing
Directors; or
	 
	 	(3)	 	the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole to any “person” (as such term is used
in










 



6


	 	 	 	Sections 13(d) and 14(d) of the Exchange Act) other than to a Permitted
Holder; or
	 
	 	(4)	 	the adoption by the stockholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company,





          provided, however, that a transaction in which the Company becomes a Subsidiary of another
Person (other than a Person that is an individual) shall not constitute a Change of Control if (1)
the shareholders of the Company immediately prior to such transaction “beneficially own” at least a
majority of the voting power of the outstanding Capital Stock of the Company immediately following
the consummation of such transaction and (2) immediately following the consummation of such
transaction, no “person”, other than such other Person (but including the holders of the Capital
Stock of such other Person), “beneficially owns” more than 50% of the voting power of the
outstanding Capital Stock of the Company.




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




          “Common Stock” means with respect to any Person, any and all shares, interest or other
participations in, and other equivalents (however designated and whether voting or nonvoting) of
such Person’s common stock whether or not outstanding on the Issue Date, and includes, without
limitation, all series and classes of such common stock.




          “Company” means the party named as such in this Indenture and its successors and
assigns, including any Successor Company which becomes such in accordance with Article IV.




          “Consolidated Coverage Ratio” means as of any date of determination, with respect to
any Person, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the
period of the most recent four consecutive fiscal quarters ending prior to the date of such
determination for which financial statements are in existence to (y) Consolidated Interest Expense
for such four fiscal quarters, provided, however, that:





	 	(1)	 	if the Company or any Restricted Subsidiary:






	 	(a)	 	has Incurred any Indebtedness since the
beginning of such period that remains outstanding on such date of
determination or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for
such period will 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 (i) the
average daily balance of such Indebtedness during such four fiscal
quarters or such shorter period for which such facility










 



7


	 	 	 	was outstanding or (ii) 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; or
	 
	 	(b)	 	has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of the period that is
no longer outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio involves a discharge of Indebtedness (in each case other
than Indebtedness Incurred under any revolving credit facility unless
such Indebtedness has been permanently repaid and the related
commitment terminated), Consolidated EBITDA and Consolidated Interest
Expense for such period will be calculated after giving effect on a pro
forma basis to such discharge of such Indebtedness, including with the
proceeds of such new Indebtedness or otherwise, as if such discharge
had occurred on the first day of such period;






	 	(2)	 	if since the beginning of such period the Company or any
Restricted Subsidiary will have made any Asset Disposition or if the
transaction giving rise to the need to calculate the Consolidated Coverage
Ratio is an Asset Disposition:






	 	(a)	 	the Consolidated EBITDA for such period will be
reduced by an amount equal to the Consolidated 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 the
Consolidated EBITDA (if negative) directly attributable thereto for
such period; and
	 
	 	(b)	 	Consolidated Interest Expense for such period
will be reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Company or any
Restricted Subsidiary 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);










 



8








	 	(3)	 	if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) will have made an Investment in
any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary
or is merged with or into the Company) or an acquisition of assets, including
any acquisition of assets occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or substantially all of
an operating unit, division or line of business (or for purposes of this
subsection, any Vessel), Consolidated EBITDA and Consolidated Interest Expense
for such period will be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness in connection with such
Investment or acquisition) as if such Investment or acquisition occurred on the
first day of such period; and
	 
	 	(4)	 	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) will
have Incurred any Indebtedness or discharged any Indebtedness, made any Asset
Disposition or any Investment or acquisition of assets that would have required
an adjustment pursuant to clause (1), (2) or (3) above if made by the Company
or a Restricted Subsidiary during such period, Consolidated EBITDA and
Consolidated Interest Expense for such period will be calculated after giving
pro forma effect thereto as if such transaction occurred on the first day of
such period.




For purposes of this definition, whenever pro forma effect is to be given to any calculation under
this definition, the pro forma calculations will be determined in good faith by a responsible
financial or accounting officer of the Company (including pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Securities Act). For purposes of
this definition, whenever pro forma effect is to be given to an acquisition or construction of a
Vessel or the Capital Stock of a vessel-owning company or the financing thereof, such Person may
(i) if the relevant Vessel is to be subject to a time charter with a remaining term longer than six
months, apply pro forma earnings (losses) for such period for such Vessel based upon such charter,
or (ii) if such Vessel is not to be subject to a time charter, is under time charter that is due to
expire within six months or less, or is to be subject to charter on a voyage charter basis (whether
or not any such charter is in place for such Vessel), then in each case apply earnings (losses) for
such period for such Vessel based upon the average of the historical earnings of comparable Vessels
in such Person’s fleet (as determined in good faith by its Board of Directors) during such period
or if the Board of Directors determines in good faith that there is no such comparable Vessel, then
based upon industry average earnings for comparable Vessels (as determined in good faith by its
Board of Directors). If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest expense on such Indebtedness will 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). If any Indebtedness that is being given pro forma
effect bears an interest rate at the option of the Company, the interest rate on such Indebtedness
shall be calculated by applying such optional rate actually








 



9


chosen by the Company or, if none, then based upon such optional rate chosen as the Company may
designate.




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





	 	(1)	 	Consolidated Interest Expense; plus
	 
	 	(2)	 	Consolidated Income Taxes; plus
	 
	 	(3)	 	consolidated depreciation expense; plus
	 
	 	(4)	 	consolidated impairment charges recorded in connection with the
application of Financial Accounting Standard No. 144 “Accounting for the
Impairment or Disposal of Long Lived Assets”; plus
	 
	 	(5)	 	any gain (loss) realized upon the sale or other disposition of
any property, plant or equipment of the Company or its consolidated Restricted
Subsidiaries (including pursuant to any Sale/Leaseback Transaction) and any
gain (loss) realized upon the sale or other disposition of any Capital Stock of
any Person; plus
	 
	 	(6)	 	other non-cash charges reducing Consolidated Net Income
(excluding any such non-cash charge to the extent it represents an accrual of
or reserve for cash charges in any future period or amortization of a prepaid
cash expense that was paid in a prior period not included in the calculation
(other than for drydocking expenses)); less
	 
	 	(7)	 	non-cash items increasing Consolidated Net Income for such
period (excluding any items which represent the reversal of any accrual of, or
reserve for, anticipated cash charges made in any prior period).




Notwithstanding the preceding sentence, clauses (2) through (4) and (6) and (7) relating to amounts
of a Restricted Subsidiary of a Person will be added to Consolidated Net Income to compute
Consolidated EBITDA of such Person only to the extent (and in the same proportion) that the net
income (loss) of such Restricted Subsidiary was included in calculating the Consolidated Net Income
of such Person and, to the extent the amounts set forth in clauses (2) through (4) and (6) and (7)
are in excess of those necessary to offset a net loss of such Restricted Subsidiary or if such
Restricted Subsidiary has net income for such period included in Consolidated Net Income, only if a
corresponding amount would be permitted at the date of determination to be dividended 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 that Restricted Subsidiary or its stockholders.










 



10




          “Consolidated Income Taxes” means, with respect to any Person for any period, taxes
imposed upon such Person or other payments required to be made by such Person by any governmental
authority which taxes or other payments are calculated by reference to the income or profits of
such Person or such Person and its Restricted Subsidiaries (to the extent such income or profits
were included in computing Consolidated Net Income for such period), regardless of whether such
taxes or payments are required to be remitted to any governmental authority.




          “Consolidated Interest Expense” means, for any period, the total interest expense of
the Company and its consolidated Restricted Subsidiaries, whether paid or accrued (excluding
capitalized interest expense related to vessel constructions or acquisitions), plus, to the extent
not included in such interest expense (without duplication):





	 	(1)	 	interest expense attributable to Capitalized Lease Obligations
and the interest component of any deferred payment obligations;
	 
	 	(2)	 	amortization of debt discount;
	 
	 	(3)	 	non-cash interest expense;
	 
	 	(4)	 	commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptance financing;
	 
	 	(5)	 	the interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries;
	 
	 	(6)	 	net realized costs associated with Interest Rate Agreements
(including amortization of fees); provided that if Interest Rate Agreements
result in net realized benefits rather than costs, such benefits shall be
credited to reduce Consolidated Interest Expense unless, pursuant to GAAP, such
benefits are otherwise reflected in Consolidated Net Income;
	 
	 	(7)	 	the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period (excluding
capitalized interest expense related to vessel constructions or acquisitions);
	 
	 	(8)	 	the product of (a) all dividends paid or payable in cash, Cash
Equivalents or Indebtedness or accrued during such period on any series of
Disqualified Stock of such Person or on Preferred Stock of its Restricted
Subsidiaries payable to a party other than the Company or a Wholly-Owned
Subsidiary, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined foreign, federal,
state, provincial and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP; and










 



11


	 	(9)	 	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 and its
Restricted Subsidiaries) in connection with Indebtedness Incurred by such plan
or trust; provided, however, that there will be excluded therefrom any such
interest expense of any Unrestricted Subsidiary to the extent the related
Indebtedness is not Guaranteed or paid by the Company or any Restricted
Subsidiary.





          “Consolidated Net Income” means, for any period, the net income (loss) of the Company
and its consolidated Restricted Subsidiaries determined in accordance with GAAP; provided, however,
that there will not be included (to the extent otherwise included therein) in such Consolidated Net
Income:





	 	(1)	 	any net income (loss) of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that:






	 	(a)	 	subject to the limitations contained in clauses
(3) through (11) below, the Company’s equity in the net income of any
such Person for such period will 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 to a Restricted Subsidiary, to the limitations
contained in clause (2) below); and
	 
	 	(b)	 	the Company’s equity in a net loss of any such
Person for such period will be included in determining such
Consolidated Net Income to the extent such loss has been funded with
cash from the Company or a Restricted Subsidiary;






	 	(2)	 	any net after-tax income (but not loss) of any Restricted
Subsidiary if such 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 limitations contained in clauses
(3) through (11) below, the Company’s equity in the net income of any
such Restricted Subsidiary for such period will be included in such
Consolidated Net Income up to the aggregate amount of cash actually
paid or 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










 



12


	 	 	 	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 will be included in determining
such Consolidated Net Income;






	 	(3)	 	any gain (loss) realized upon the sale or other disposition of
any property, plant or equipment of the Company or its consolidated Restricted
Subsidiaries (including pursuant to any Sale/Leaseback Transaction) and any
gain (loss) realized upon the sale or other disposition of any Capital Stock of
any Person;
	 
	 	(4)	 	consolidated amortization expense recorded in connection with
the application of Financial Accounting Standard No. 142 “Goodwill and Other
Intangibles”;
	 
	 	(5)	 	any writeoff or writedown of goodwill or other intangibles;
	 
	 	(6)	 	any net after-tax extraordinary gain or loss;
	 
	 	(7)	 	any non-recurring costs in connection with any closures of
offices, branches or facilities in an aggregate amount not exceeding $10.0
million during any period of four consecutive fiscal quarters;
	 
	 	(8)	 	any net unrealized gain or loss resulting in such period from
Hedging Obligations related to business or financial transactions of the
Company and for bona fide hedging purposes (as determined in good faith by the
Board of Directors or senior management of the Company);
	 
	 	(9)	 	any fees and expenses Incurred during such period, or any
amortization thereof for such period, in connection with any acquisition,
Investment, Asset Disposition, Incurrence or repayment of Indebtedness,
issuance of Capital Stock, refinancing transaction or amendment or modification
of any Indebtedness;
	 
	 	(10)	 	any non-cash compensation charges or other non-cash expenses or
charges arising from the grant of or issuance or repricing of stock, stock
options or other equity-based awards or any amendment, modification,
substitution or change of any such stock, stock options or other equity-based
awards; and
	 
	 	(11)	 	the cumulative effect of a change in accounting principles.





          “Consolidated Net Tangible Assets” of any Person means, as of any date of
determination, the sum of the assets of such Person after eliminating intercompany items,









 



13


determined on a consolidated basis in accordance with GAAP, including appropriate deductions
for any minority interest in tangible assets of such Person’s Subsidiaries, less (without
duplication) (i) the net book value of all of its licenses, patents, patent applications,
copyrights, trademarks, trade names, goodwill, non-compete agreements or organizational expenses
and other like intangibles, (ii) unamortized Indebtedness discount and expenses, (iii) all reserves
for depreciation, obsolescence, depletion and amortization of its properties and (iv) all other
proper reserves which in accordance with GAAP should be provided in connection with the business
conducted by such Person.




          “Continuing Directors” means, as of any date of determination, any member of the Board
of Directors of the Company who: (1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board at the time of such nomination
or election.




          “Corporate Trust Office” means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office at the date
hereof is located at 101 Barclay Street, 8W, New York, New York 10286, Attention: Corporate Trust
Division — Corporate Finance Unit, or such other address as the Trustee may designate from time to
time by written notice to the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time to time by written
notice to the Company).




          “Credit Facility” means, with respect to the Company or any Restricted Subsidiary, one
or more debt facilities (including, without limitation, the Senior Credit Agreement) or other
financing arrangements, including, without limitation, indentures or commercial paper facilities,
providing for revolving credit loans, term loans, letters of credit or long-term financing, in each
case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part
from time to time (and whether or not with the original administrative agent and lenders or another
administrative agent or agents or other lenders and whether provided under the original Senior
Credit Agreement or any other credit or other agreement or indenture).




          “Currency Agreement” means in respect of a Person any foreign exchange contract,
currency swap agreement or other similar agreement as to which such Person is a party or a
beneficiary.




          “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.




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




          “Definitive Securities” means certificated Securities.










 



14




          “Disqualified Stock” means, with respect to any Person, any Capital Stock of such
Person 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 for Indebtedness or Disqualified
Stock (excluding Capital Stock which is convertible or exchangeable solely at
the option of the Company or a Restricted Subsidiary); or
	 
	 	(3)	 	is redeemable at the option of the holder of the Capital Stock,
in whole or in part,




in each case on or prior to the date that is 91 days after the earlier of (a) the Stated Maturity
of the Securities or (b) the date on which there are no Securities outstanding, provided that only
the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to such date will be
deemed to be Disqualified Stock; provided, further, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each
defined in a substantially identical manner to the corresponding definitions in this Indenture)
shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities
into which it is convertible or for which it is ratable or exchangeable) provide that the Company
may not repurchase or redeem any such Capital Stock (and all such securities into which it is
convertible or for which it is ratable or exchangeable) pursuant to such provision prior to
compliance by the Company with Section 3.9 and Section 3.7 and such repurchase or
redemption complies with Section 3.4.




          “DTC” means The Depository Trust Company, its nominees and their respective successors
and assigns, or such other depository institution hereinafter appointed by the Company.




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




          “Exchange Offer” shall have the meaning set forth in the Registration Rights
Agreement.




          “Exchange Securities” has the meaning ascribed to it in the second introductory
paragraph of this Indenture.




          “Freight Hedging Agreements” means any forward freight agreement or comparable swap,
future or similar arrangement relating to derivative trading in freight or similar rates.




          “Fuel Hedging Agreements” 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.

















 





15 




          “GAAP” means generally accepted accounting principles in the United States of America
as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in this Indenture will be computed in
conformity with GAAP.




          “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other 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 other Person (whether arising by
virtue of partnership arrangements, or by agreement 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 purposes 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” will not include endorsements for collection or deposit in
the ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.





          “Guarantor Pari Passu Indebtedness” means Indebtedness of a Subsidiary Guarantor that
ranks equally in right of payment to its Subsidiary Guarantee.




          “Guarantor Subordinated Obligation” means, with respect to a Subsidiary Guarantor, any
Indebtedness of such Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) which is expressly subordinate in right of payment to the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee pursuant to a written agreement.




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




          “Incur” means issue, create, assume, Guarantee, incur or otherwise become liable for;
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)
will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary; and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.




          “Indebtedness” means, with respect to any Person on any date of determination (without
duplication, whether or not contingent):










 



16



	 	(1)	 	the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
	 
	 	(2)	 	the principal of and premium (if any) in respect of obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
	 
	 	(3)	 	the principal component of all obligations of such Person in
respect of letters of credit, bankers’ acceptances or other similar instruments
(including reimbursement obligations with respect thereto except to the extent
such reimbursement obligation relates to a trade payable and such obligation is
satisfied within 30 days of Incurrence);
	 
	 	(4)	 	the principal component of all obligations of such Person to
pay the deferred and unpaid purchase price of property (except trade payables),
which purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto;
	 
	 	(5)	 	Capitalized Lease Obligations and all Attributable Indebtedness
of such Person;
	 
	 	(6)	 	the principal component or liquidation preference of all
obligations of such Person with respect to the redemption, repayment or other
repurchase of any Disqualified Stock or, with respect to any Subsidiary, any
Preferred Stock (but excluding, in each case, any accrued dividends);
	 
	 	(7)	 	the principal component of all Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person; provided, however, that the amount of such
Indebtedness will be the lesser of (a) the fair market value of such asset at
such date of determination and (b) the amount of such Indebtedness of such
other Persons;
	 
	 	(8)	 	the principal component of Indebtedness of other Persons to the
extent Guaranteed by such Person; and
	 
	 	(9)	 	to the extent not otherwise included in this definition, net
obligations of such Person under Hedging Obligations (the amount of any such
obligations to be equal at any time to the termination value of such agreement
or arrangement giving rise to such obligation that would be payable by such
Person at such time).




The amount of Indebtedness of any Person at any date will 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.
Notwithstanding the foregoing, money borrowed and set aside at the time of the Incurrence









 



17


of any Indebtedness in order to pre-fund the payment of interest on such Indebtedness shall not be
deemed to be “Indebtedness”, provided that such money is held to secure the payment of such
interest.




          In addition, “Indebtedness” of any Person shall include Indebtedness described in the
preceding paragraph that would not appear as a liability on the balance sheet of such Person if:





	 	(1)	 	such Indebtedness is the obligation of a partnership or joint
venture that is not a Restricted Subsidiary (a “Joint Venture”);
	 
	 	(2)	 	such Person or a Restricted Subsidiary of such Person is a
general partner of the Joint Venture (a “General Partner”); and
	 
	 	(3)	 	there is recourse, by contract or operation of law, with
respect to the payment of such Indebtedness to property or assets of such
Person or a Restricted Subsidiary of such Person; and then such Indebtedness
shall be included in an amount not to exceed:






	 	(a)	 	the lesser of (i) the net assets of the General
Partner and (ii) the amount of such obligations to the extent that there
is recourse, by contract or operation of law, to the property or assets
of such Person or a Restricted Subsidiary of such Person; or
	 
	 	(b)	 	if less than the amount determined pursuant to
clause (a) immediately above, the actual amount of such Indebtedness
that is recourse to such Person or a Restricted Subsidiary of such
Person, if the Indebtedness is evidenced by a writing and is for a
determinable amount and the related interest expense shall be included
in Consolidated Interest Expense to the extent actually paid by the
Company or its Restricted Subsidiaries.





          “Independent Appraiser” means a Person:





	 	(1)	 	engaged in the business of appraising vessels who is generally
acceptable to institutional lenders to the shipping industry; and
	 
	 	(2)	 	who (a) is independent of the parties to the transaction in
question and their Affiliates and (b) is not connected with the Company, any of
the Restricted Subsidiaries or any of such Affiliates as an officer, director,
employee, promoter, underwriter, trustee, partner or person performing similar
functions.





          “Indenture” means this Indenture as amended or supplemented from time to time.




          “Initial Securities” has the meaning ascribed to it in the second introductory
paragraph of this Indenture.










 



18




          “Interest Rate Agreement” means with respect to any Person any interest rate
protection agreement, interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to which such Person is party or a
beneficiary.




          “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 or other
extension of credit (including by way of Guarantee or similar arrangement, but excluding any debt
or extension of credit represented by a bank deposit other than a time deposit and advances or
extensions of credit to customers in the ordinary course of business) 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 and all other items that are or
would be classified as investments on a balance sheet prepared in accordance with GAAP; provided
that none of the following will be deemed to be an Investment:





	 	(1)	 	Hedging Obligations entered into in compliance with the
Indenture;
	 
	 	(2)	 	endorsements of negotiable instruments and documents in the
ordinary course of business; and
	 
	 	(3)	 	an acquisition of assets, Capital Stock or other securities by
the Company or a Subsidiary for consideration to the extent such consideration
consists of Capital Stock (other than Disqualified Stock) of the Company.





          For purposes of Section 3.4:





	 	(1)	 	“Investment” will include the portion (proportionate to the
Company’s equity interest in a Restricted Subsidiary to be designated as an
Unrestricted Subsidiary) of the fair market value of the net assets of such
Restricted Subsidiary of the Company at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary; provided, however, that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company
will be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary in 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 (as conclusively determined by the Board of
Directors of the Company in good faith) of such Subsidiary at the time that
such Subsidiary is so re-designated a Restricted Subsidiary;
	 
	 	(2)	 	any property transferred to or from an Unrestricted Subsidiary
will 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; and










 



19








	 	(3)	 	if the Company or any Restricted Subsidiary sells or otherwise
disposes of any Capital Stock of any Restricted Subsidiary such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary, the Company will be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value (as conclusively
determined by the Board of Directors of the Company in good faith) of the
Capital Stock of such Subsidiary not sold or disposed of.





          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s Investors Service, Inc. and BBB- (or the equivalent) by Standard & Poor’s
Ratings Services, in each case, with a stable or better outlook.




          “Issue Date” means the date on which the Initial Securities are originally issued.




          “Joint Venture” means a partnership or joint venture that is not a Restricted
Subsidiary.




          “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).




          “Net Available Cash” from an Asset Disposition means cash payments actually received
(including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, 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 the properties or assets that are the subject of such Asset Disposition or
received in any other non-cash form) therefrom, in each case net of:





	 	(1)	 	all legal, accounting, investment banking, 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
accrued as a liability under GAAP (after taking into account any available tax
credits or deductions and any tax sharing agreements), 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 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 Subsidiaries or joint ventures as a result of such
Asset Disposition;
	 
	 	(4)	 	the deduction of appropriate amounts to be provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with










 



20


	 	 	 	the assets disposed of in such Asset Disposition and retained by the Company
or any Restricted Subsidiary after such Asset Disposition; and
	 
	 	(5)	 	all expenditures incurred to inspect, repair or modify a Vessel
and bring such Vessel to the condition and place of delivery in connection with
the sale of such Vessel as may be specified in the related purchase and sale
agreement or otherwise as the board of directors of the Company shall determine
as advisable in connection with such sale.





          “Net Cash Proceeds”, with respect to any issuance or sale of Capital Stock, means the
cash proceeds of such issuance or sale actually received net of attorneys’ fees, accountants’ fees,
underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage,
consultant and other fees and charges actually incurred in connection with such issuance or sale
and net of taxes paid or payable as a result of such issuance or sale (after taking into account
any available tax credit or deductions and any tax sharing arrangements).




          “Non-Recourse Debt” means Indebtedness of a Person





	 	(1)	 	at 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)	 	no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any Restricted Subsidiary to declare a
default under such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity; and
	 
	 	(3)	 	the terms of which provide that there is no recourse against
any of the assets of the Company or its Restricted Subsidiaries.





          “Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.




          “Note Register” means the register of Securities, maintained by the Trustee, pursuant
to Section 2.3.




          “Offering Memorandum” means the Offering Memorandum, dated November 6, 2009, relating
to the offer and sale of Securities.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, any Vice President, the Treasurer or the Secretary of the Company or a
Subsidiary Guarantor.










 



21




          “Officers’ Certificate” means a certificate signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of the Company.




          “Opinion of Counsel” means a written opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the
Trustee.




          “Pari Passu Indebtedness” means Indebtedness that ranks equally in right of payment to
the Securities.




          “Permitted Holders” means Peter C. Georgiopoulos, any of his siblings and any of their
respective spouses and lineal descendents and any of their respective Affiliates.




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





	 	(1)	 	a Restricted Subsidiary or a Person which 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, however, that such Person’s primary business is a Related Business;
	 
	 	(3)	 	cash and Cash Equivalents;
	 
	 	(4)	 	receivables owing to the Company or any Restricted Subsidiary
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however, 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)	 	loans or advances to employees, officers or directors of the
Company or any Restricted Subsidiary of the Company in the ordinary course of
business, in an aggregate amount at any one time outstanding not in excess of
$5.0 million (without giving effect to the forgiveness of any such loans or
advances); provided, however, that the Company and its Subsidiaries shall
comply in all material respects with the provisions of the Sarbanes Oxley Act
of 2002 and the rules and regulations promulgated in connection therewith
relating to such loans and advances;










 



22


	 	(7)	 	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 or pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency
of a debtor;
	 
	 	(8)	 	Investments made as a result of the receipt of non-cash
consideration from an Asset Disposition that was made pursuant to and in
compliance with Section 3.7;
	 
	 	(9)	 	Investments in existence on the Issue Date;
	 
	 	(10)	 	Hedging Obligations, which transactions or obligations are
Incurred in compliance with Section 3.3;
	 
	 	(11)	 	Guarantees issued in accordance with Section 3.3;
	 
	 	(12)	 	any Asset Swap made in accordance with Section 3.7;
	 
	 	(13)	 	any Investments received in compromise, settlement or
resolution of (A) obligations of trade creditors or customers, including,
without limitation, pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer; or (B) litigation, arbitration or other disputes with Persons who are
not Affiliates; and
	 
	 	(14)	 	in addition to the items referred to in clauses (1) through
(13) above, so long as no Event of Default has occurred and is continuing,
Investments by the Company or any of its Restricted Subsidiaries, when taken
together with other Investments made pursuant to this clause (14), in an
aggregate amount not to exceed at any time outstanding the greater of (A)
$150.0 million and (B) 10.0% of Consolidated Net Tangible Assets.





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





	 	(1)	 	Liens securing Indebtedness and other obligations of the
Company and its Subsidiary Guarantors and a Credit Facility permitted to be
Incurred under the Indenture;
	 
	 	(2)	 	(X) Liens securing Indebtedness Incurred in compliance with the
first paragraph or clause 13 of the second paragraph of Section 3.3 with
respect to any existing Vessel (which term, for purposes of this clause (2),
shall include the Capital Stock of a Person substantially all of the assets of
which is a Vessel and any Related Assets, as the context may require) of such
Person provided, however, that the principal amount of Indebtedness secured by
such a Lien shall not exceed 65% of the fair market value of










 



23








	 	 	 	such Vessel, determined based upon the average of written appraisals of
three Independent Appraisers, and (Y) Liens securing Indebtedness Incurred
to finance the construction, purchase or lease of, or repairs, improvements
or additions to, property of such Person, including a Vessel; provided,
however, as to this clause (Y), (A) subject to clause (B) below, in the case
of a Vessel, (i) except as provided in clauses (ii), (iii) and (iv) below,
the principal amount of Indebtedness secured by such a Lien does not exceed
(x) with respect to Indebtedness Incurred to finance the construction of
such Vessel, 65% of the sum of (1) the contract price pursuant to the Vessel
Construction Contract for such Vessel and (2) any other Ready for Sea Cost
for such Vessel, and (y) with respect to Indebtedness Incurred to finance
the acquisition of such Vessel, 65% of the sum of (1) the contract price for
the acquisition of such Vessel and (2) any other Ready for Sea Cost of such
Vessel, (ii) in the case of Indebtedness that matures within nine months
after the Incurrence of such Indebtedness (other than any Refinancing
Indebtedness of such Indebtedness that matures within nine months or
Indebtedness that matures within one year prior to the Stated Maturity of
the Securities), the principal amount of Indebtedness secured by such a Lien
shall not exceed 65% of the fair market value, as determined in good faith
by the Board of Directors, of such Vessel at the time such Lien is Incurred,
(iii) in the case of a Sale/Leaseback Transaction, the principal amount of
Indebtedness secured by such a Lien shall not exceed 65% of the fair market
value, as determined in good faith by the Board of Directors, of such Vessel
at the time such Lien is Incurred and (iv) in the case of Indebtedness
representing Capitalized Lease Obligations relating to a Vessel, the
principal amount of Indebtedness secured by such a Lien shall not exceed 65%
of the sum of (1) the fair market value, as determined in good faith by the
Board of Directors, of such Vessel at the time such Lien is Incurred and (2)
any Ready for Sea Cost for such Vessel and (B) in the case of Additional
Assets acquired directly or indirectly from Net Available Cash pursuant to
Section 3.7 the principal amount of Indebtedness secured by such a
Lien does not exceed the lesser of (i) 65% of the contract price for the
acquisition of such Additional Asset and (ii) the contract price for the
acquisition of such Additional Asset less the Net Available Cash used to
acquire such Additional Asset; provided further, however, as to this clause
(Y), that such Lien may not extend to any other property owned by such
Person or any of its Subsidiaries at the time the Lien is Incurred 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;
	 
	 	(3)	 	pledges or deposits by such Person under workers’ compensation
laws, unemployment insurance laws, other types of social security or similar
legislation, or good faith deposits in connection with bids, tenders,











 



24







	 	 	 	insurance obligations, 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
United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or
import or customs duties or for the payment of rent, in each case Incurred
in the ordinary course of business;
	 
	 	(4)	 	Liens imposed by law, including carriers’, warehousemen’s and
mechanics’ Liens;
	 
	 	(5)	 	Liens for taxes, assessments or other governmental charges not
yet subject to penalties for non-payment or which are being contested in good
faith by appropriate proceedings; provided appropriate reserves required
pursuant to GAAP have been made in respect thereof;
	 
	 	(6)	 	Liens in favor of issuers of surety or performance bonds or
letters of credit or 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 do not constitute Indebtedness;
	 
	 	(7)	 	encumbrances, ground leases, 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, building
codes or other restrictions as to the use of real properties or Liens
incidental to the conduct of the business of such Person or to the ownership of
its properties which do not in the aggregate materially impair their use in the
operation of the business of such Person;
	 
	 	(8)	 	Liens securing Hedging Obligations pursuant to customary
collateral provisions for Hedging Obligations of such type (in the case of
Freight Hedging Agreements only such cash and Cash Equivalents maintained in
deposit accounts with the clearing house clearing such hedge);
	 
	 	(9)	 	leases, licenses, subleases and sublicenses of assets
(including, without limitation, real property and intellectual property rights)
which do not materially interfere with the ordinary conduct of the business of
the Company or any of its Restricted Subsidiaries;
	 
	 	(10)	 	judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded, if required to be bonded, and any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment have not been finally terminated or the period within which
such proceedings may be initiated has not expired;










 



25


	 	(11)	 	Liens for the purpose of securing the payment of all or a part
of the purchase price of, or Capitalized Lease Obligations with respect to,
assets or property (other than Vessels) acquired or constructed in the ordinary
course of business, provided that:






	 	(a)	 	the aggregate principal amount of Indebtedness
secured by such Liens is otherwise permitted to be Incurred under the
Indenture and does not exceed the cost of the assets or property so
acquired or constructed; and
	 
	 	(b)	 	such Liens are created within 180 days of
construction or acquisition of such assets or property and do not
encumber any other assets or property of the Company or any Restricted
Subsidiary other than such assets or property and assets affixed or
appurtenant thereto;






	 	(12)	 	Liens arising solely by virtue of any statutory or common law
provisions relating to banker’s Liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a depositary
institution;
	 
	 	(13)	 	Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases and vessel charters entered into by the
Company and its Restricted Subsidiaries in the ordinary course of business;
	 
	 	(14)	 	Liens existing on the Issue Date;
	 
	 	(15)	 	Liens on property or shares of stock of a Person at the time
such Person becomes a Restricted Subsidiary; provided, however, that such Liens
are not created, Incurred or assumed in connection with, or in contemplation
of, such other Person becoming a Restricted Subsidiary; provided further,
however, that any such Lien may not extend to any other property owned by the
Company or any Restricted Subsidiary;
	 
	 	(16)	 	Liens on property at the time the Company or a Restricted
Subsidiary acquired the property, including any acquisition by means of a
merger or consolidation with or into the Company or any Restricted Subsidiary;
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 the
Company or any Restricted Subsidiary;
	 
	 	(17)	 	Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Company or a Wholly Owned Subsidiary;










 



26


	 	(18)	 	Liens securing the Securities, Subsidiary Guarantees or payment
obligations to the Trustee;
	 
	 	(19)	 	Liens securing Refinancing Indebtedness Incurred to refinance
Indebtedness that was previously so secured, provided that any such Lien is
limited to all or part of the same property or assets (plus improvements,
accessions, proceeds or dividends or distributions in respect thereof) that
secured (or, under the written arrangements under which the original Lien
arose, could secure) the Indebtedness being refinanced or is in respect of
property that is the security for a Permitted Lien hereunder;
	 
	 	(20)	 	Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary arising from Vessel chartering,
drydocking, maintenance, the furnishing of supplies and bunkers to Vessels,
repairs and improvements to Vessels, crews’ wages and maritime Liens;
	 
	 	(21)	 	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;
	 
	 	(22)	 	Liens for salvage and general average;
	 
	 	(23)	 	Liens arising under any retention of title, hire, purchase or
conditional sale agreement or arrangements having similar effect in respect of
goods supplied to the Company or a Restricted Subsidiary in the ordinary course
of business;
	 
	 	(24)	 	legal or equitable Liens deemed to exist solely by reason of a
negative pledge covenant and other covenants or undertakings of a like nature
(but excluding, for the avoidance of doubt, any Liens (other than such legal or
equitable Liens) Incurred in compliance thereof);
	 
	 	(25)	 	Liens on assets of the Company or any Restricted Subsidiary of
the Company that were substituted or exchanged as collateral for other assets
of the Company or any Restricted Subsidiary of the Company that are referred to
in any of the preceding clauses (2), (15) and (16) of this definition, provided
that the fair market value of the substituted or exchanged assets substantially
approximates, at the time of the substitution or exchange, the fair market
value of the other assets so referred to; and
	 
	 	(26)	 	in addition to the items referred to in clauses (1) through
(25) above, Liens securing Indebtedness (other than Subordinated Obligations
and Guarantor Subordinated Obligations) in an aggregate principal amount
outstanding at any one time not to exceed $25.0 million.










 



27







          For purposes of determining what category of Permitted Lien that any Lien shall be included
in, the Company in its sole discretion may classify such Lien on the date of its incurrence and
later reclassify all or a portion of such Lien in any manner that complies with this definition.




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




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




          “Public Equity Offering” means an offering for cash by the Company of its common
stock, or options, warrants or rights with respect to its common stock made pursuant to a
registration statement that has been declared effective by the SEC (other than on Form S-4 or S-8).




          “Rating Agencies” means Standard & Poor’s Ratings Services and Moody’s Investors
Service, Inc. or if Standard & Poor’s Ratings Services or Moody’s Investors Service, Inc. or both
shall not make a rating on the Securities publicly available, a nationally recognized statistical
rating agency or agencies, as the case may be, selected by the Company (as certified by a Board
Resolution) which shall be substituted for Standard & Poor’s Ratings Services or Moody’s Investors
Service, Inc. or both, as the case may be.




          “Ready for Sea Cost” means with respect to a Vessel or Vessels to be acquired or
leased (pursuant to a Capitalized Lease Obligation) by the Company or any Restricted Subsidiary of
the Company, 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 intended use, including any
and all inspections, appraisals, repairs, modifications, additions, permits and licenses in
connection with such acquisition or lease, which would be classified and accounted for as
“property, plant and equipment” in accordance with GAAP.




          “Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance,
replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge
mechanism) (collectively, “refinance,” “refinances,” and “refinanced” shall have a correlative
meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with the Indenture
(including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary
and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted
Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, provided that:





	 	(1)	 	(a) if the Stated Maturity of the Indebtedness being refinanced
is earlier than the Stated Maturity of the Securities, the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the










 



28


	 	 	 	Indebtedness being refinanced or (b) if the Stated Maturity of the
Indebtedness being refinanced is later than the Stated Maturity of the
Securities, the Refinancing Indebtedness has a Stated Maturity at least 91
days later than the Stated Maturity of the Securities;
	 
	 	(2)	 	the 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 is Incurred in an aggregate
principal amount (or if issued with original issue discount, an aggregate issue
price) that is equal to or less than the sum of the aggregate principal amount
(or if issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced (plus, without duplication,
any additional Indebtedness Incurred to pay interest or premiums required by
the instruments governing such existing Indebtedness and fees Incurred in
connection therewith); and
	 
	 	(4)	 	if the Indebtedness being refinanced is subordinated in right
of payment to the Securities or the Subsidiary Guarantee, such Refinancing
Indebtedness is subordinated in right of payment to the Securities or the
Subsidiary Guarantee on terms at least as favorable to the Holders of
Securities as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.





          “Registration Rights Agreements” means that certain registration rights agreement
dated as of the Issue Date by and among the Company, the Subsidiary Guarantors and the initial
purchasers set forth therein and, with respect to any Additional Securities, one or more
substantially similar registration rights agreements among the Company and the other parties
thereto, as such agreements may be amended from time to time.




          “Related Asset” means, with respect to a Vessel, (i) any insurance policies and
contracts from time to time in force with respect to such Vessel, (ii) the Capital Stock of any
Subsidiary of the Company owning such Vessel and related assets, (iii) any requisition compensation
payable in respect of any compulsory acquisition thereof, (iv) any earnings derived from the use or
operation thereof and/or any earnings account with respect to such earnings, (v) any charters,
operating leases and related agreements entered into in respect of such Vessel and any security or
guarantee in respect of the charterer’s or lessee’s obligations under such charter, lease or
agreement, (vi) any cash collateral account established with respect to such Vessel pursuant to the
financing arrangement with respect thereto, (vii) any building, conversion or repair contracts
relating to such Vessel and any security or guarantee in respect of the builder’s obligations under
such contracts and (viii) any security interest in, or agreement or assignment relating to , any of
the foregoing or any mortgage in respect of such Vessel.




          “Related Business” means any business which is the same as or related, ancillary or
complementary to any of the businesses of the Company and its Restricted Subsidiaries on the









 



29


Issue Date or any other business that the Board of Directors determines in good faith is an
appropriate business for the Company or a Restricted Subsidiary.




          “Related Business Asset” means assets used or useful in a Related Business.




          “Restricted Investment” means any Investment other than a Permitted Investment.




          “Restricted Securities” means Initial Securities and Additional Securities bearing one
of the restrictive legends described in 

Section 2.1(d).




          “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.




          “Sale/Leaseback Transaction” means an arrangement relating to property now owned or
hereafter acquired 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 United States Securities and Exchange Commission.




          “Secured Indebtedness” means Indebtedness that is secured by a Lien on the property or
assets of the relevant obligor.




          “Securities” has the meaning ascribed to it in the second introductory paragraph of
this Indenture.




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




          “Securities Custodian” means the custodian with respect to the Global Security (as
appointed by DTC), or any successor Person thereto and shall initially be the Trustee.




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




          “Senior Credit Agreement” means the Amended and Restated Credit Agreement dated as of
October 20, 2008 among General Maritime Subsidiary Corporation, the Company, Nordea Bank Finland
PLC, New York Branch, as administrative agent and collateral agent, and the lenders parties thereto
from time to time, as the same may be amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time (including increasing the amount loaned thereunder
provided that such additional Indebtedness is Incurred in accordance with Section 3.3); provided
that a Senior Credit Agreement shall relate to Indebtedness that consists exclusively of Pari Passu
Indebtedness or Guarantor Pari Passu Indebtedness.




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










 



30




          “Stated Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision, but shall not include any contingent
obligations to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.




          “Subordinated Obligation” means any Indebtedness of the Company (whether outstanding
on the Issue Date or thereafter Incurred) which is subordinate or junior in right of payment to the
Securities pursuant to a written agreement.




          “Subsidiary” of any Person means (a) any corporation, association or other business
entity (other than a partnership, joint venture, limited liability company or similar entity) of
which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof (or persons performing similar functions) or (b) any partnership, joint venture
limited liability company or similar entity of which more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited partnership interests,
as applicable, is, in the case of clauses (a) and (b), at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3)
one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a
Subsidiary will refer to a Subsidiary of the Company.




          “Subsidiary Guarantee” means, individually, any Guarantee of payment of the Securities
by a Subsidiary Guarantor pursuant to the terms of this Indenture and any supplemental indenture
hereto, and, collectively, all such Guarantees.




          “Subsidiary Guarantor” means each Restricted Subsidiary of the Company in existence on
the Issue Date and thereafter any Restricted Subsidiary that provides a Subsidiary Guarantee in
accordance with the terms of this Indenture; provided that upon release or discharge of such
Restricted Subsidiary from its Subsidiary Guarantee in accordance with this Indenture, such
Restricted Subsidiary ceases to be a Subsidiary Guarantor.




          “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) which has become publicly available at least two
business days prior to the applicable 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 November 15, 2013; provided, however, that if the period from the
redemption date to November 15, 2013 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 November 15, 2013 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. The Company will (a) calculate the Treasury Rate as of the second Business Day
preceding the applicable redemption date and (b) prior to such redemption date file with the










 



31

Trustee an Officers’ Certificate setting forth the Applicable Premium and the Treasury Rate and
showing the calculation of each in reasonable detail.




          “TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15
U.S.C. §§ 77aaa-77bbbb) as amended, as in effect on the date of this Indenture until such
time as this Indenture is qualified under the TIA, and thereafter as in effect on the date on which
this Indenture is qualified under the TIA; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after either such date, “TIA” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.




          “Trustee” means the party named as such in this Indenture until a successor replaces
it and, thereafter, means the successor.




          “Trust Officer” shall mean, when used with respect to the Trustee, any officer
assigned to the Corporate Trust Division — Corporate Finance Unit (or any successor division or
unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct
responsibility for the administration of this Indenture, and for purposes of Section 7.1(c)(2) and
the second sentence of Section 7.5 shall also include any officer of the Trustee to whom any
corporate trust matter is referred because of such person’s knowledge of and familiarity with the
particular subject.




          “Unrestricted Subsidiary” means:





	 	(1)	 	any Subsidiary of the Company that at the time of determination
shall be 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 or a Person becoming a Subsidiary through merger or
consolidation or Investment therein) to be an Unrestricted Subsidiary only if:





	 	(1)	 	such Subsidiary or any of its Subsidiaries does not own any
Capital Stock or Indebtedness of or have any Investment in, or own or hold any
Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary;
	 
	 	(2)	 	all the Indebtedness of such Subsidiary and its Subsidiaries
shall, at the date of designation, and will at all times thereafter, consist of
Non-Recourse Debt;
	 
	 	(3)	 	such designation and the Investment of the Company or a
Restricted Subsidiary in such Subsidiary complies with Section 3.4;










 



32


	 	(4)	 	such Subsidiary, either alone or in the aggregate with all
other Unrestricted Subsidiaries, does not operate, directly or indirectly, all
or substantially all of the business of the Company and its Subsidiaries;
	 
	 	(5)	 	such Subsidiary is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation:






	 	(a)	 	to subscribe for additional Capital Stock of
such Person; or
	 
	 	(b)	 	to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified levels of
operating results; and






	 	(6)	 	on the date such Subsidiary is designated an Unrestricted
Subsidiary, such Subsidiary is not a party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary with
terms substantially less favorable to the Company than those that might have
been obtained from Persons who are not Affiliates of the Company.





          Any such designation by the Board of Directors of the Company shall be evidenced to the
Trustee by delivering to the Trustee a resolution of the Board of Directors of the Company giving
effect to such designation and an Officers’ Certificate certifying that such designation complies
with the foregoing conditions. 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 this Indenture and any Indebtedness of such Subsidiary
shall be deemed to be Incurred as of such date.




          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, no
Default or Event of Default shall have occurred and be continuing or would occur as a consequence
thereof and the Company could Incur at least $1.00 of additional Indebtedness under the first
paragraph of Section 3.3 on a pro forma basis taking into account such designation.




          “U.S. Government Obligations” means securities that are (a) direct obligations of the
United States of America for the timely payment of which its full faith and credit is pledged or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with
respect to any such U.S. Government Obligations or a specific payment of principal of or interest
on any such U.S. Government Obligations held by such custodian for the account of the holder of
such depositary 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 depositary receipt from any
amount received by the custodian in respect of the U.S. Government










 



33

Obligations or the specific payment of principal of or interest on the U.S. Government
Obligations evidenced by such depositary receipt.




          “Vessel” means one or more shipping vessels whose primary purpose is the maritime
transportation of cargo and/or passengers or which are otherwise engaged, used or useful in any
business activities of the Company and its Restricted Subsidiaries and which are owned by and
registered (or to be owned by and registered) in the name of the Company or any of its Restricted
Subsidiaries or operated or to be operated by the Company or any of its Restricted Subsidiaries
pursuant to a lease or other operating agreement constituting a Capitalized Lease Obligation, in
each case together with all related spares, equipment and any additions or improvements.




          “Vessel Construction Contract” means any contract for the construction (or
construction and acquisition) of a Vessel entered into by the Company or any Restricted Subsidiary,
including any amendments, supplements or modifications thereto or change orders in respect thereof.




          “Voting Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled to vote in the election of directors, managers or trustees, as
applicable.




          “Wholly-Owned Subsidiary” means a Restricted Subsidiary of the Company, all of the
Capital Stock of which (other than directors’ qualifying shares or an immaterial amount of shares
required to be owned by other Persons pursuant to applicable law) is owned by the Company or
another Wholly-Owned Subsidiary.




          SECTION 1.2. Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Additional Amounts”

	 	 	3.1	(b)
	“Additional Restricted Securities”

	 	 	2.1	(b)
	“Affiliate Transaction”

	 	 	3.8	 
	“Agent Member”

	 	 	2.1	(f)
	“Asset Disposition Offer”

	 	 	3.7	(b)
	“Asset Disposition Offer Amount”

	 	 	3.7	(c)(1)
	“Asset Disposition Offer Period”

	 	 	3.7	(c)(1)












 



34


	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Asset Disposition Purchase Date”

	 	 	3.7(c)(1)
	“Authenticating Agent”

	 	 	2.2	 
	“Change in Tax Law”

	 	 	5.1(d)
	“Change of Control Offer”

	 	 	3.9(b)
	“Change of Control Payment”

	 	 	3.9(b)(1)
	“Change of Control Payment Date”

	 	 	3.9(b)(2)
	“Company Order”

	 	 	2.2	 
	“covenant defeasance option”

	 	 	8.1(b)
	“cross acceleration provision”

	 	 	6.1(6)(b)
	“Defaulted Interest”

	 	 	2.13	 
	“Event of Default”

	 	 	6.1	 
	“Excess Proceeds”

	 	 	3.7(b)
	“Exchange Global Note”

	 	 	2.1(b)
	“Global Securities”

	 	 	2.1(b)
	“IAI”

	 	 	2.1(b)
	“Institutional Accredited Investor Note”

	 	 	2.1(b)
	“Institutional Accredited Investor Global Note”

	 	 	2.1(b)
	“judgment default provision”

	 	 	6.1(8)
	“legal defeasance option”

	 	 	8.1(b)
	“Legal Holiday”

	 	 	11.8	 
	“Obligations”

	 	 	10.1	 
	“Pari Passu Notes”

	 	 	3.7(b)
	“payment default”

	 	 	6.1(6)
	“Paying Agent”

	 	 	2.3	 
	“Payor”

	 	 	3.1(b)












 



35


	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Private Placement Legend”

	 	 	2.1(d)
	“QIB”

	 	 	2.1(b)
	“Registrar”

	 	 	2.3	 
	“Regulation S”

	 	 	2.1(b)
	“Regulation S Global Note”

	 	 	2.1(b)
	“Regulation S Legend”

	 	 	2.1(d)
	“Regulation S Note”

	 	 	2.1(b)
	“Relevant Tax Jurisdiction”

	 	 	3.1(b)
	“Resale Restriction Termination Date”

	 	 	2.1(d)
	“Restricted Payment”

	 	 	3.4	 
	“Restricted Securities Legend”

	 	 	2.2(d)
	“Rule 144A”

	 	 	2.1(b)
	“Rule 144A Global Note”

	 	 	2.1(b)
	“Rule 144A Notes”

	 	 	2.1(b)
	“Special Interest Payment Date”

	 	 	2.13(a)
	“Special Record Date”

	 	 	2.13(a)

	“Successor Company”

	 	 	4.1	 
	“Total Loss”

	 	 	3.3	 






          SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This Indenture is subject to the mandatory provisions of the TIA which are incorporated by
reference in and made a part of this Indenture. The following TIA terms have the following
meanings:




          “Commission” means the SEC;




          “indenture securities” means the Securities;




          “indenture security holder” means a Securityholder;




          “indenture to be qualified” means this Indenture;




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










 



36




          “obligor” on the Securities means the Company and any other obligor on the Securities.




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




          SECTION 1.4. 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;




     (4) “including” means including without limitation;




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




     (6) unsecured Indebtedness shall not be deemed to be subordinate or junior to Secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness;




     (7) the principal amount of any noninterest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;




     (8) the principal amount of any Preferred Stock shall be (i) the maximum liquidation
value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is greater; and




     (9) the words “hereof,” “herein,” “hereunder” and similar words refer to this Indenture
as a whole and not to any particular provisions of this Indenture; and any subsection,
Section, Article and Exhibit references are to this Indenture unless otherwise specified.



ARTICLE II




The Securities




          SECTION 2.1. Form, Dating and Terms.




          (a) The aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture is unlimited. The Initial Securities issued on the date hereof will be in an
aggregate principal amount of $300,000,000. In addition, the Company may issue,










 



37



without the
consent of or notice to Holders, from time to time in accordance with the provisions of this
Indenture, including, without limitation, Section 3.3 hereof, Additional Securities and
Exchange Securities. Furthermore, Securities may be authenticated and delivered upon registration
or transfer, or in lieu of, other Securities pursuant to Section 2.6, 2.9,
2.11 or 9.5 or in connection with an Asset Disposition Offer pursuant to
Section 3.7 or a Change of Control Offer pursuant to Section 3.9.




          The Initial Securities, Additional Securities and Exchange Securities shall be known and
designated as “12% Senior Notes due 2017” of the Company.




          With respect to any Additional Securities, the Company shall set forth in (a) a Board
Resolution and (b)(i) an Officer’s Certificate or (ii) one or more indentures supplemental hereto,
the following information:





     (1) the aggregate principal amount of such Additional Securities to be authenticated
and delivered pursuant to this Indenture;




     (2) the issue price and the issue date of such Additional Securities, including the
date from which interest shall accrue and be first payable; and




     (3) whether such Additional Securities shall be Restricted Securities issued in the
form of Exhibit A hereto and/or shall be issued in the form of Exhibit B hereto.



          Additional Securities shall have identical terms and conditions as the Initial Notes, other
than issue date, issue price, first interest payment date and, to the extent applicable,
restrictive legends. Exchange Securities shall have identical terms and conditions as the Initial
Notes, other than issue date, issue price, first interest payment date and restrictive legends, and
holders of Exchange Securities shall not be entitled to the benefits of the Registration Rights
Agreement.




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




          (b) The Initial Securities are being offered and sold by the Company pursuant to a Purchase
Agreement, dated November 6, 2009, among the Company, the Subsidiary Guarantors, J.P. Morgan
Securities Inc. and the other initial purchasers named therein. The Initial Securities and any
Additional Securities (if issued as Restricted Securities) (the “Additional Restricted
Securities”) will be resold initially only to (A) qualified institutional buyers (as defined in
Rule 144A under the Securities Act (“Rule 144A”)) in reliance on Rule 144A (“QIBs”)
and (B) Persons other than U.S. Persons (as defined in Regulation S under the
Securities Act (“Regulation S”)) in reliance on Regulation S. Such Initial Securities
and Additional Restricted Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and institutional “accredited investors” (as defined in
Rules










 



38



501(a)(1), (2), (3) and (7) under the Securities Act) who are not QIBs (“IAIs”) in
accordance with Rule 501 of the Securities Act in accordance with the procedure described herein.




          Initial Securities and Additional Restricted Securities offered and sold to qualified
institutional buyers in the United States of America in reliance on Rule 144A (the “Rule 144A
Notes”) shall be issued in the form of a permanent global Security, without interest coupons,
substantially in the form of Exhibit A, which is hereby incorporated by reference and made
a part of this Indenture, including appropriate legends as set forth in Section 2.1(d) (the
“Rule 144A Global Note”), deposited with the Trustee, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note
may be represented by more than one certificate, if so required by DTC’s rules regarding the
maximum principal amount to be represented by a single certificate. The aggregate principal amount
of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.




          Initial Securities and Additional Securities offered and sold outside the United States of
America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form
of a permanent global Security, without interest coupons, substantially in the form of Exhibit
A (the “Regulation S Global Note”) deposited with the Trustee, as custodian for DTC,
duly executed by the Company and authenticated by the Trustee as hereinafter provided. The
Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s
rules regarding the maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Regulation S Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee,
as hereinafter provided.




          Initial Securities and Additional Securities resold to IAIs (the “Institutional
Accredited Investor Notes”) in the United States of America shall be issued in the form of a
permanent global Security, without interest coupons, substantially in the form of Exhibit A
(the “Institutional Accredited Investor Global Note”) deposited with the Trustee, as
custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Institutional Accredited Investor Global Note may be represented by more than one
certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Institutional Accredited Investor
Global Note may from time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for DTC or its nominee, as hereinafter provided.




          Exchange Securities exchanged for interests in the Rule 144A Notes, the Regulation S Notes and
the Institutional Accredited Investor Notes will be issued in the form of a permanent global
Security, without interest coupons, substantially in the form of Exhibit B, which is hereby
incorporated by reference and made a part of this Indenture, deposited with the Trustee as
hereinafter provided, including the appropriate legend set forth in Section 2.1(d) (the
“Exchange Global Note”). The Exchange Global Note may be represented by more than one
certificate, if so required by DTC’s rules regarding the maximum principal amount to be
represented by a single certificate.










 



39




          The Rule 144A Global Note, the Regulation S Global Note, the Institutional Accredited Investor
Global Note and the Exchange Global Note are sometimes collectively herein referred to as the
“Global Securities.”




          Payments in respect of Securities represented by a Global Security (including principal,
premium, if any, and interest) will be made by the transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depository. The Company will
make all payments in respect of a Definitive Security (including principal, premium, if any, and
interest) by mailing a check to the registered address of each Holder thereof; provided, however,
that payments on the Securities may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Securities, by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such other date as the
Trustee may accept in its discretion).




          The Securities may have notations, legends or endorsements required by law, stock exchange
rule or usage, in addition to those set forth on Exhibit A and Exhibit B and in
Section 2.1(d). The Company shall approve the forms of the Securities and any notation,
endorsement or legend on them. Each Security shall be dated the date of its authentication. The
terms of the Securities set forth in Exhibit A and Exhibit B are part of the terms
of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to be bound by such terms.




          (c) Denominations. The Securities shall be issuable only in fully registered form,
without coupons, and only in denominations of $2,000 and any integral multiple of $1,000 in excess
thereof.




          (d) Restrictive Legends. Subject to Section 2.6, unless and until (i) an Initial
Security is sold under an effective registration statement or (ii) an Initial Security is exchanged
for an Exchange Security in connection with an effective registration statement, in each case
pursuant to the Registration Rights Agreement or a similar agreement,




          (A) the Rule 144A Global Note and the Institutional Accredited Investor Global Note shall
bear the following legend (the “Private Placement Legend”) on the face thereof:





“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. 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, SUCH
REGISTRATION.




THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON
BEHALF OF ANY INVESTOR ACCOUNT FOR









 



40



WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS ONE YEAR (OR SUCH SHORTER PERIOD IN ACCORDANCE WITH RULE 144) AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF
THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT, 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
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 RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
$250,000, 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 THE
ISSUER’S AND THE TRUSTEE’S 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. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.




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 OR
HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN DEFINED IN SECTION
3(3), SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (“ERISA”), OR ANY PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS
SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
OR PROVISIONS
UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE
SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE
UNDERLYING









 



41


ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR
ARRANGEMENT, 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) the Regulation S Global Note shall bear the following legend (the “Regulation S
Legend” and, together with the Private Placement Legend, a “Restricted Securities
Legend”) on the face thereof:





“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.




BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT
PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”), (2)
BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS FORTY DAYS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, 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
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, 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 THE









 



42



ISSUER’S
AND THE TRUSTEE’S 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.




THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER
OF (A) THE DAY ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS
DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED
HEREIN, THE TERMS “OFFSHORE TRANSACTION”, “UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.




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 OR
HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN DEFINED IN SECTION
3(3), SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (“ERISA”), OR ANY PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS
SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS
THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY
WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR
ARRANGEMENT, OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A
NON-EXEMPT 181 PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.”



          (C) The Global Securities, whether or not an Initial Security, shall bear the following
legend on the face thereof:





“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), 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.









 



43



TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.”



          (e) Each Security issued hereunder that has more than a de minimis amount of original issue
discount for U.S. federal income tax purposes shall bear a legend (the “OID Legend”) in
substantially the following form at the top of the front page thereof:





THIS NOTE HAS BEEN ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1272
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED). UPON WRITTEN REQUEST, THE COMPANY WILL
PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE FOLLOWING INFORMATION: (1) THE ISSUE
PRICE AND DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE AND (3)
THE YIELD TO MATURITY OF THE NOTE. HOLDERS SHOULD CONTACT GENERAL MARITIME CORPORATION, 35
WEST 56th STREET, NEW YORK, NEW YORK 10019, ATTN: SECRETARY.



          (f) Book-Entry Provisions




          (i) This Section 2.1(f) shall apply only to Global Securities deposited with the
Trustee, as Securities Custodian for DTC.




          (ii) Each Global Security initially shall (x) be registered in the name of DTC for such
Global Security or the nominee of DTC, (y) be delivered to the Trustee as Securities Custodian for
DTC and (z) bear legends as set forth in Section 2.1(d).




          (iii) Members of, or participants in, DTC (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by DTC or by the
Trustee as the custodian of DTC or under such Global Security, and DTC may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by DTC or impair, as between DTC
and its Agent Members, the operation of customary practices of DTC governing the exercise of the
rights of a Holder of a beneficial interest in any Global Security.




          (iv) In connection with the transfer of an entire Global Security to beneficial owners
pursuant to subsection (f) of this Section 2.1, such Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Security, an equal aggregate principal amount of Definitive
Securities of authorized denominations.










 



44




          (v) The registered Holder of a Global Security may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the Securities.




          (vi) Any Holder of a Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interests in such Global Security may be effected only through a book-entry
system maintained by (a) the Holder of such Global Security (or its agent) or (b) any Holder of a
beneficial interest in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.




          (g) Definitive Securities. (i) Except as provided below, owners of beneficial
interests in Global Securities will not be entitled to receive Definitive Securities. In addition,
Definitive Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (a) DTC notifies the Company that it is unwilling or
unable to continue as depositary for such Global Security or DTC ceases to be a clearing agency
registered under the Exchange Act, at a time when DTC is required to be so registered in order to
act as depositary, and in each case a successor depositary is not appointed by the Company within
90 days of such notice or, (b) the Company executes and delivers to the Trustee and Registrar an
Officers’ Certificate stating that such Global Security shall be so exchangeable or (c) an Event of
Default has occurred and is continuing and the Registrar has received a request from DTC.




          (ii) Any Definitive Security delivered in exchange for an interest in a Global Security
pursuant to Section 2.1(f)(iv) shall, except as otherwise provided by Section
2.6(c), bear the applicable legend regarding transfer restrictions applicable to the Definitive
Security set forth in Section 2.1(d).




          SECTION 2.2. Execution and Authentication. One Officer shall sign the Securities for the Company by manual or facsimile signature. If
an Officer whose signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.




          A Security shall not be valid until an authorized signatory of the Trustee manually
authenticates the Security. The signature of the Trustee on any certificate of authentication or a
Security shall be conclusive evidence and the only evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated the date of its
authentication.




          At any time and from time to time after the execution and delivery of this Indenture, the
Trustee shall authenticate and deliver: (1) Initial Securities for original issue on the Issue Date
in an aggregate principal amount of $300,000,000, (2) Additional Securities for original issue and
(3) Exchange Securities for issue only in an Exchange Offer pursuant to the Registration Rights
Agreement, and only in exchange for Initial Securities or Additional
Securities of an equal principal amount, in each case upon and in accordance with a written
order of the Company signed by two Officers or by an Officer and either an Assistant Treasurer or
an Assistant Secretary of the Company delivered to the Trustee (the “Company Order”). Such
Company Order shall specify the amount of the Securities to be authenticated and the date on










 



45



which
the original issue of Securities is to be authenticated and whether the Securities are to be
Initial Securities, Additional Securities or Exchange Securities, and to whom or upon whose order
the Securities are to be delivered.




          The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to
the Company to authenticate the Securities. Unless limited by the terms of such appointment, any
such Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent.




          In case the Company or any Subsidiary Guarantor, pursuant to Article IV or Section
10.2, shall be consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an entirety to any Person,
and the successor Person resulting from such consolidation, or surviving such merger, or into which
the Company or any Subsidiary Guarantor shall have been merged, or the Person which shall have
received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article IV, any of the
Securities authenticated or delivered prior to such consolidation, merger, conveyance, transfer,
lease or other disposition may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like tenor as the
Securities surrendered for such exchange and of like principal amount; and the Trustee, upon
Company Order of the successor Person, shall authenticate and deliver Securities as specified in
such order for the purpose of such exchange. If Securities shall at any time be authenticated and
delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or
substitution for or upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the exchange of all Securities
at the time outstanding for Securities authenticated and delivered in such new name.




          SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or agency where
Securities may be presented for payment (the “Paying Agent”). The Company shall cause each
of the Registrar and the Paying Agent to maintain an office or agency in the Borough of Manhattan,
The City of New York. The Registrar shall keep a register of the Securities and of their transfer
and exchange (the “Note Register”). The Company may have one or more co-registrars and one
or more additional paying agents. The term “Paying Agent” includes any additional paying agent.




          The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Indenture, which shall incorporate the
terms of the TIA. The agreement shall implement the provisions of this Indenture that relate
to such agent. The Company shall notify the Trustee of the name and address of each such agent.
The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or
Paying Agent and to the Trustee. The Registrar or Paying Agent may resign at any time upon written
notice to the Company and the Trustee. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such and shall be entitled to appropriate compensation










 



46



therefor
pursuant to Section 7.7. The Company or any of its Restricted Subsidiaries may act as
Paying Agent, Registrar, co-registrar or transfer agent.




          The Company initially appoints the Trustee as Registrar and Paying Agent for the Securities.




          SECTION 2.4. Paying Agent to Hold Money in Trust. By no later than 10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with the Paying Agent a sum
sufficient in immediately available funds to pay such principal or interest when due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent
shall hold in trust for the benefit of Securityholders or the Trustee all money held by such Paying
Agent for the payment of principal of or interest on the Securities and shall notify the Trustee in
writing of any default by the Company or any Subsidiary Guarantor in making any such payment. If
the Company or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent
(other than the Trustee) to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.




          SECTION 2.5. Securityholder 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 Securityholders. If the Trustee is not
the Registrar, or to the extent otherwise required under the TIA, the Company shall furnish to the
Trustee, in writing at least five 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 Securityholders.




          SECTION 2.6. Transfer and Exchange.




          (a) The following provisions shall apply with respect to any proposed transfer of a Rule 144A
Note or an Institutional Accredited Investor Note prior to the date which is one year (or such
shorter period ending on the date on which such Rule 144A Note or Institutional Accredited Investor
Note first becomes tradable by a non-affiliated Holder thereof without restriction as to volume)
after the later of the date of its original issue and the last date on which
the Company or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the “Resale Restriction Termination Date”):





     (i) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a
beneficial interest therein to a QIB shall be made upon the representation of the transferee
in the form as set forth on the reverse of the Security that it is purchasing for its own
account or an account with respect to which it exercises sole investment discretion and that
it and any such account is a “qualified institutional buyer” within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the









 



47



Company as it has requested
pursuant to Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;




     (ii) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a
beneficial interest therein to an IAI shall be made upon receipt by the Trustee or its agent
of a certificate substantially in the form set forth in Section 2.7 from the
proposed transferee and, if requested by the Company or the Trustee, the delivery of an
opinion of counsel, certification and/or other information satisfactory to each of them; and




     (iii) a transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a
beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Trustee
or its agent of a certificate substantially in the form set forth in Section 2.8
from the proposed transferee and, if requested by the Company or the Trustee, the delivery
of an opinion of counsel, certification and/or other information satisfactory to each of
them.



          (b) The following provisions shall apply with respect to any proposed transfer of a
Regulation S Note prior to the expiration of the Restricted Period:





     (i) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall
be made upon the representation of the transferee, in the form of assignment on the reverse
of the certificate, that it is purchasing the Security for its own account or an account
with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;




     (ii) a transfer of a Regulation S Note or a beneficial interest therein to an IAI
shall be made upon receipt by the Trustee or its agent of a certificate substantially in the
form set forth in Section 2.7 from the proposed transferee and, if requested by the
Company or the Trustee, the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and




     (iii) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a certificate substantially
in the form set forth in Section 2.8 hereof from the proposed transferee and, if
requested by the Company or the Trustee, receipt by the Trustee or its agent of an opinion
of counsel, certification and/or other information satisfactory to each of them.



          After the expiration of the Restricted Period, interests in the Regulation S Note may be
transferred in accordance with applicable law without requiring the certification set forth in
Section 2.7, Section 2.8 or any additional certification.




          (c) Restricted Securities Legend. Upon the transfer, exchange or replacement of
Securities not bearing a Restricted Securities Legend, the Registrar shall deliver Securities that










 



48



do not bear a Restricted Securities Legend. Upon the transfer, exchange or replacement of
Securities bearing a Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless there is delivered to the Registrar an Opinion of
Counsel to the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities Act.




          (d) Exchange from Global Note Bearing Restricted Securities Legend to Global Note Not
Bearing Restricted Securities Legend. To the extent permitted by law after the six-month
anniversary of the Issue Date and upon compliance with the following procedures, beneficial
interests in a Global Note bearing the Restricted Securities Legend (a “Restricted Global
Note”) may, at the Company’s sole discretion, be exchanged for beneficial interests in a Global
Note not bearing the Restricted Securities Legend (an “Unrestricted Global Note”). In order
to effect such exchange, the Company shall provide written notice to the Trustee instructing the
Trustee to (1) direct the Depositary to transfer the specified amount of the outstanding beneficial
interests in a particular Restricted Global Note to an Unrestricted Global Note and provide the
Depositary with all such information as is necessary for the Depositary to appropriately credit and
debit the relevant Holder accounts and (2) provide prior written notice to all Holders of such
exchange, which notice must include the date such exchange is proposed to occur, the CUSIP number
of the relevant Restricted Global Note and the CUSIP number of the Unrestricted Global Note into
which such Holders’ beneficial interests shall be exchanged. As a condition to any such exchange
pursuant to this Section 2.6(d), the Trustee shall be entitled to receive from the Company,
and rely upon conclusively without any liability, an Officers’ Certificate and an Opinion of
Counsel to the Company, in form and in substance reasonably satisfactory to the Trustee, to the
effect that such transfer of beneficial interests to the Unrestricted Global Note shall be effected
in compliance with the Securities Act. The Company may request from Holders such information it
reasonably determines is required in order to be able to deliver such Officers’ Certificate and
Opinion of Counsel, including certification from Holders that they are not Affiliates of the
Company and have not knowingly acquired their beneficial interests in the Restricted Global Note
from any Affiliate of the Company. Upon such exchange of beneficial interests pursuant to this
Section 2.6(d), the Registrar shall reflect on its books and records the date of such
transfer and a decrease and increase, respectively, in the principal amount of the applicable
Restricted Global Note and the Unrestricted Global Note, respectively, equal to the principal
amount of beneficial interests transferred. Following any such transfer pursuant to this
Section 2.6(d) of all of the beneficial interests in a Restricted Global Note, such
Restricted Global Note shall be cancelled.




          (e) The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.1 or this Section 2.6. The Company
shall have the right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable prior written notice to the
Registrar.





     (f) Obligations with Respect to Transfers and Exchanges of Securities.




     (i) To permit registrations of transfers and exchanges, the Company shall, subject to
the other terms and conditions of this Article II, execute and the Trustee shall
authenticate Definitive Securities and Global Securities at the Registrar’s or
co-registrar’s request.









 



49



     (ii) No service charge shall be made to a Holder for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charges payable upon exchange or
transfer pursuant to Sections 3.7, 3.9 or 9.5).




     (iii) The Registrar or co-registrar shall not be required to register the transfer of
or exchange of any Security for a period beginning (1) 15 days before the mailing of a
notice of an offer to repurchase or redeem Securities and ending at the close of business on
the day of such mailing or (2) 15 days before an interest payment date and ending on such
interest payment date.




     (iv) Prior to the due presentation for registration of transfer of any Security, the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat
the person in whose name a Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected by notice
to the contrary.




     (v) Any Definitive Security delivered in exchange for an interest in a Global Security
pursuant to Section 2.1(f) shall, except as otherwise provided by Section
2.6(c), bear the applicable legend regarding transfer restrictions applicable to the
Definitive Security set forth in Section 2.1(d).




     (vi) All Securities issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or exchange.



          (g) No Obligation of the Trustee




          (i) None of the Trustee, the Paying Agent or the Registrar shall have any responsibility or
obligation to any beneficial owner of a Global Security, an Agent Member or other Person with
respect to the accuracy of the records of DTC or other depositary or its nominee or any Agent
Member, with respect to any ownership interest in the Securities or with respect to the delivery to
any Agent Member, beneficial owner or other Person (other than DTC
or other depositary) of any notice (including any notice of redemption) or the payment of any
amount or delivery of any Securities (or other security or property) under or with respect to such
Securities. All notices and communications to be given to the Holders and all payments to be made
to Holders under the Securities and this Indenture shall be given or made only to or upon the order
of the registered Holders (which shall be DTC or other depositary or its nominee in the case of a
Global Security). The rights of beneficial owners in any Global Security shall be exercised only
through DTC or other depositary subject to the applicable rules and procedures of DTC or other
depositary. The Trustee, the Paying Agent and the Registrar may rely and shall be fully protected
in relying upon information furnished by DTC or other depositary with respect to its members,
participants and any beneficial owners.










 



50




          (ii) None of the Trustee, the Paying Agent or the Registrar shall have any obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any interest in any Security
(including any transfers between or among DTC participants, members or beneficial owners in any
Global Security) 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.




          (iii) None of the Trustee, the Paying Agent or the Registrar shall have any responsibility or
liability for any acts or omissions of DTC or other depositary with respect to such Global
Security, for the records of any such depositary, including records in respect of beneficial
ownership interests in respect of any such Global Security, for any transactions between DTC or
other depositary and any Agent Member or between or among DTC or other depositary, any such Agent
Member and/or any holder or owner of a beneficial interest in such Global Security, or for any
transfers of beneficial interests in any such Global Security.




          SECTION 2.7. Form of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors.




[Date]




General Maritime Corporation

c/o The Bank of New York Mellon

[      ]




Dear Sirs:




          This
certificate is delivered to request a transfer of $                     principal amount of the 12%
Senior Notes due 2017 (the “Securities”) of General Maritime Corporation (the
“Company”).



          Upon transfer, the Securities would be registered in the name of the new beneficial owner as
follows:




          Name:                                                             




          Address:                                                             




          Taxpayer ID Number:                                         




          The undersigned represents and warrants to you that:




          1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the “Securities Act”)) purchasing for our
own account or for the account of such an institutional “accredited investor” at least $250,000
principal amount of the Securities, and we are acquiring the Securities not with a view to, or for
offer or sale in connection with, any distribution in violation of the Securities Act. We










 



51



have
such knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risk of our investment in the Securities and we invest in or purchase securities similar
to the Securities in the normal course of our business. We and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.




          2. We understand that the Securities have not been registered under the Securities Act and,
unless so registered, may not be sold except as permitted in the following sentence. We agree on
our own behalf and on behalf of any investor account for which we are purchasing Securities to
offer, sell or otherwise transfer such Securities prior to the date that is one year after the
later of the date of original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Securities (or any predecessor thereto) (the “Resale Restriction
Termination Date”) only (a) to the Company, (b) pursuant to a registration statement which has
been declared effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act, to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a “QIB”) that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is being made in reliance
on Rule 144A, (d) pursuant to offers and sales 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 Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing
for its own account or for the account of such an institutional “accredited investor,” in each case
in a minimum principal amount of Securities of $250,000 or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control and in compliance
with any applicable state securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the
Securities is proposed to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee substantially in the
form of this letter to the Company and the Trustee, which shall provide, among other things, that
the transferee is an institutional “accredited investor” (within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) and that it is acquiring such Securities for investment
purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to any offer, sale or other transfer prior
to the Resale Termination Date of the Securities pursuant to clauses (d), (e) or (f)
above to require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.




	 	 	 	 	 
	 

	 	TRANSFEREE:	 	 
	 

	 	 	 	 
	 
	 

	 	BY:	 	 
	 

	 	 	 	 











 



52


          SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers Pursuant
to Regulation S.




[Date]




General Maritime Corporation

The Bank of New York Mellon

[      ]





	 	Re:	 	 General Maritime Corporation

12% Senior Notes due 2017 (the “Securities”)





Ladies and Gentlemen:




          In
connection with our proposed sale of $___ aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the United States Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, we represent that:





     (a) the offer of the Securities was not made to a person in the United States;




     (b) either (i) at the time the buy order was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States or (ii) the transaction was executed in, on or
through the facilities of a designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged with a buyer in
the United States;




     (c) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and




     (d) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.



          In addition, if the sale is made during a restricted period and the provisions of Rule
903(b)(2) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has
been made in accordance with the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the
case may be.




     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.









 



53


          Very truly yours,




          [Name of Transferor]




          By:                                     




     





               Authorized Signature



          SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities. If a mutilated Security is surrendered to the Registrar or if the Holder of a Security
claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and
the Trustee shall authenticate a replacement Security if the requirements of Section 8-405 of the
Uniform Commercial Code are met, such that the Securityholder (a) satisfies the Company or the
Trustee within a reasonable time after such Securityholder has notice of such loss, destruction or
wrongful taking and the Registrar does not register a transfer prior to receiving such
notification, (b) makes such request to the Company or Trustee prior to the Security being acquired
by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected
purchaser”) and (c) satisfies any other reasonable requirements of the Trustee. If required by the
Trustee or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of
the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar
and any co-registrar from any loss which any of them may suffer if a Security is replaced, and, in
the absence of notice to the Company, any Subsidiary Guarantor or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.




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




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




          Every new Security issued pursuant to this Section in lieu of any mutilated, destroyed, lost
or stolen Security shall constitute an original additional contractual obligation of the Company,
any Subsidiary Guarantor (if applicable) and any other obligor upon the
Securities, whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.




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










 



54




          SECTION 2.10. Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security shall be deemed to be outstanding in the event the Company
or an Affiliate of the Company holds the Security, provided, however, that (i) for purposes of
determining which are outstanding for consent or voting purposes hereunder, the provisions of
Section 11.6 shall apply and (ii) in determining whether the Trustee shall be protected in
making a determination whether the Holders of the requisite principal amount of outstanding
Securities are present at a meeting of Holders of Securities for quorum purposes or have consented
to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver,
amendment or modification hereunder, or relying upon any such quorum, consent or vote, only
Securities which a Trust Officer of the Trustee actually knows to be held by the Company or an
Affiliate of the Company shall not be considered outstanding.




          If a Security is replaced pursuant to Section 2.9, it ceases to be outstanding unless
the Trustee and the Company receive proof satisfactory to them that the replaced Security is held
by a bona fide purchaser.




          If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
redemption date or maturity date money sufficient to pay all principal and interest payable on that
date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them ceases to accrue.




          SECTION 2.11. Temporary Securities. In the event that Definitive Securities are to be issued under the terms of this Indenture,
until such Definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. Temporary Securities shall be substantially in the form
of Definitive Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities. After the preparation of Definitive Securities, the temporary
Securities shall be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose and such exchange
shall be without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute, and the
Trustee shall authenticate and make available for delivery in exchange therefor, one or more
Definitive Securities representing an equal principal amount of Securities. Until so exchanged,
the Holder of temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as a Holder of Definitive Securities.




          SECTION 2.12. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or cancellation and dispose
of such Securities in accordance with its internal policies including delivery of a certificate (a
“Certificate of Destruction”) describing such





 











 





 55



Securities disposed (subject to the record retention requirements of the Exchange Act). The
Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee
for cancellation for any reason other than in connection with a transfer or exchange.




          SECTION 2.13. Payment of Interest; Defaulted Interest. Interest on any Security which
is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid
to the Person in whose name such Security (or one or more predecessor Securities) is registered at
the close of business on the regular record date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 2.3.



          Any interest on any Security which is payable, but is not paid when the same becomes due and
payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable
to the Holder on the regular record date by virtue of having been such Holder, and such defaulted
interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein collectively called “Defaulted
Interest”) shall be paid by the Company, at its election in each case, as provided in
clause (a) or (b) below:




     (a)  The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on a Special Record Date (as defined below) for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such notice) of the proposed payment (the
“Special Interest Payment Date”), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a record date (the “Special Record
Date”) for the payment of such Defaulted Interest, which date shall be not more than 15
days and not less than 10 days prior to the Special Interest Payment Date and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date therefor to be given
in the manner provided for in Section 11.2, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so given, such
Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).




     (b)  The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such









 



56



exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.



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



          SECTION 2.14. Computation of Interest. Interest on the Securities shall be computed
on the basis of a 360-day year of twelve 30-day months.



          SECTION 2.15. CUSIP and ISIN Numbers. The Company in issuing the Securities may use
“CUSIP”, “ISIN” or other numbers (if then generally in use) and, if so, the Trustee shall use such
“CUSIP”, “ISIN” or other numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such “CUSIP”, “ISIN” or
other numbers. The Company shall promptly notify the Trustee in writing of any change in the
“CUSIP”, “ISIN” or other numbers.



ARTICLE III




Covenants




          SECTION 3.1. Payment of Securities; Payment of Additional Amounts. (a) Payment of
Securities. The Company shall promptly pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture immediately available funds sufficient to pay all principal
and interest then due.



          The Company shall pay interest on overdue principal at the rate specified therefor in the
Securities, and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful.



          (b) Payment of Additional Amounts. If any taxes, assessments or other governmental
charges are imposed by any jurisdiction where the Company, a Subsidiary 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
Securities, 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 Securities, the Payor will pay to each Holder of a Security, 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









 



57



specified in such Security to which such Holder is entitled; provided the Payor will not be
required to make any payment of Additional Amounts for or on account of:




	 	(1)	 	any tax, assessment or other governmental charge which would
not have been imposed but for (a) 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 (b) the presentation of a Security
(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 Security been presented for such 30-day period);
	 
	 	(2)	 	any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge;
	 
	 	(3)	 	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 Security to comply with a reasonable and timely request of the
Payor addressed to the Holder to provide information, documents 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
	 
	 	(4)	 	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 Security where, had the beneficial owner of the Security been the Holder of the
Security, it would not have been entitled to payment of Additional Amounts by reason of any of
clauses (1) to (4) inclusive above.




          The Payor will provide the Trustee with the official acknowledgment of the taxing authority of
the Relevant Tax Jurisdiction (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 Securities or the Paying Agents, as
applicable, upon request therefor.









 



58


          The Company and the Subsidiary 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 Securities or any other
document or instrument referred to therein (other than a transfer of the Securities), or the
receipt of any payments with respect to the Securities, excluding any such taxes, charges or
similar levies imposed by any jurisdiction other than (a) any jurisdiction where the Company or any
Subsidiary Guarantor is organized or otherwise considered by a taxing authority to be a resident
for tax purposes or (b) 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 Securities or any
other such document or instrument following the occurrence of any Event of Default with respect to
the Securities.



          At least 30 days prior to each date on which any payment under or with respect to the
Securities is due and payable, if the Company becomes obligated to pay Additional Amounts with
respect to such payment, the Company will deliver to the Trustee an Officers’ Certificate stating
the fact that such Additional Amounts will be payable, and the amounts so payable and will set
forth such other information as is necessary to enable the Trustee to pay such Additional Amounts
to the Holders of the Securities on the payment date.



          All references in this Indenture to principal of, premium, if any, and interest on the
Securities will include any Additional Amounts payable by the Payor in respect of such principal,
such premium, if any, and such interest.



          The foregoing obligations will survive any termination, defeasance or discharge of this
Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a Payor is
organized or any political subdivision or taxing authority or agency thereof or therein.



          SECTION 3.2. SEC Reports. Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, to the extent not prohibited by the
Exchange Act, the Company will file with the SEC the annual reports and the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act with respect
to U.S. issuers within the time periods specified therein or in the relevant forms with respect to
an accelerated filer. In the event that the Company is not permitted to file such reports,
documents and information with the SEC pursuant to the Exchange Act, the Company will nevertheless
make available such Exchange Act information to the Trustee and the holders of the Securities as if
the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act
within the time periods specified therein or in the relevant forms with respect to an accelerated
filer.



          If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the
financial information required by the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes to the financial
statements, and in Management’s Discussion and Analysis of Results of Operations and Financial
Condition of the financial condition and results of operations of the Company and its Restricted
Subsidiaries.









 



59


          Delivery of the foregoing reports, information and documents to the Trustee and any other
material to the Trustee hereunder 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 3.3. Limitation on Indebtedness. The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, Incur any Indebtedness; provided, however, that the Company
and the Subsidiary Guarantors may Incur Indebtedness if on the date thereof the Consolidated
Coverage Ratio for the Company and its Restricted Subsidiaries is at least 2.25 to 1.00.



          The first paragraph of this Section 3.3 will not prohibit the Incurrence of the
following Indebtedness:




	 	(1)	 	Indebtedness of the Company and its Subsidiary Guarantors
Incurred pursuant to the Credit Facilities in an aggregate amount up to $750.0
million at any time outstanding, less the aggregate amount of Net Cash Proceeds
applied to repayments and commitment reductions under the Credit Facilities, in
accordance with Section 3.7;
	 
	 	(2)	 	Indebtedness of the Company or any Restricted Subsidiary
Incurred to finance the replacement (through construction or acquisition) of
one or more Vessels, and any assets that shall become Related Assets (and any
Refinancing Indebtedness with respect to such Vessels or assets), upon a total
loss, destruction, condemnation, confiscation, requisition, seizure,
forfeiture, or other taking of title to or use of such Vessel (provided that
such loss, destruction, condemnation, confiscation, requisition, seizure,
forfeiture or other taking of title to or use of such Vessel was covered by
insurance or resulted in the actual payment of compensation, indemnification or
similar payments to such Person (collectively, a “Total Loss”)) in an
aggregate amount no greater than the Ready for Sea Cost for such replacement
Vessel, in each case less all compensation, damages and other payments
(including insurance proceeds other than in respect of business interruption
insurance) actually received by the Company or any Restricted Subsidiary from
any Person in connection with the Total Loss in excess of amounts actually used
to repay Indebtedness secured by the Vessel subject to the Total Loss;
	 
	 	(3)	 	Guarantees by the Company or Subsidiary Guarantors of
Indebtedness Incurred by the Company or a Subsidiary Guarantor in accordance
with the provisions of this Indenture; provided that in the event such
Indebtedness that is being Guaranteed is a Subordinated Obligation or a
Guarantor Subordinated Obligation, then the related Guarantee shall be
subordinated in right of payment to the Securities or the Subsidiary Guarantee,
as the case may be;










 



60


	 	(4)	 	Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the
Company or any Restricted Subsidiary, provided, however;






	 	(a)	 	if the Company is the obligor on such
Indebtedness and the obligee is not a Subsidiary Guarantor, such
Indebtedness is expressly subordinated to all obligations with respect
to the Securities; and
	 
	 	(b)	 	(i) any subsequent issuance or transfer of
Capital Stock or any other event which results in any such Indebtedness
being beneficially held by a Person other than the Company or a
Restricted Subsidiary of the Company; and







	 
	 	(ii)	 	any sale or other transfer of any
such Indebtedness to a Person other than the Company or a
Restricted Subsidiary of the Company,






	 	 	 	shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness by the Company or such Subsidiary, as the case may be;
	 
	 	(5)	 	Indebtedness represented by (a) the Securities issued on the
Issue Date and the Subsidiary Guarantees related thereto and the related
Exchange Securities and exchange guarantees issued in a Exchange Offer pursuant
to the Registration Rights Agreement, (b) any Indebtedness outstanding on the
Issue Date and (c) any Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (5) or clauses (2), (6) or (8) or
Incurred pursuant to the first paragraph of this Section 3.3;
	 
	 	(6)	 	Indebtedness of a Restricted Subsidiary Incurred and
outstanding on the date on which such Restricted Subsidiary was acquired by, or
merged into, the Company or any Restricted Subsidiary (including, for the
avoidance of doubt, Indebtedness under Hedging Obligations; and excluding
Indebtedness Incurred (a) to provide all or any portion of the funds utilized
to consummate the transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted Subsidiary or was
otherwise acquired by the Company or (b) otherwise in connection with, or in
contemplation of, such acquisition); provided that at the time such Restricted
Subsidiary is acquired by the Company, the Company would have been able to
Incur $1.00 of additional Indebtedness pursuant to the first paragraph of this
Section 3.3 after giving effect to the Incurrence of such Indebtedness
pursuant to this clause (6);
	 
	 	(7)	 	Indebtedness under Hedging Obligations Incurred by the Company
and its Restricted Subsidiaries related to business or financial transactions
of the Company or its Restricted Subsidiaries and for bona fide hedging










 



61


	 	 	 	purposes (as determined in good faith by the Board of Directors or senior
management of the Company);
	 
	 	(8)	 	Indebtedness of the Company or any Restricted Subsidiary
Incurred in relation to: (i) regular maintenance required to maintain the
classification of any of the Vessels owned, time chartered or bareboat
chartered to or by the Company or any Restricted Subsidiary; (ii) scheduled
dry-docking of any of the Vessels owned by the Company or any Restricted
Subsidiary for normal maintenance purposes; and (iii) any expenditures which
will or may reasonably expected to be recoverable from insurance on such
Vessels;
	 
	 	(9)	 	Indebtedness Incurred in respect of workers’ compensation
claims, unemployment insurance, health insurance and other employee benefits,
property, casualty or liability insurance, self-insurance obligations, bankers’
acceptances, performance, surety and similar bonds and completion guarantees
provided by the Company or a Restricted Subsidiary in the ordinary course of
business;
	 
	 	(10)	 	Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred or assumed in connection
with the disposition of any business, assets or Capital Stock of a Restricted
Subsidiary, but only to the extent that the maximum aggregate liability in
respect of all such Indebtedness does not at any time exceed the gross proceeds
to be received by the Company and its Restricted Subsidiaries in connection
with such disposition;
	 
	 	(11)	 	Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument (except in the
case of daylight overdrafts) drawn against insufficient funds, provided,
however, that such Indebtedness is extinguished within five Business Days of
Incurrence; and
	 
	 	(12)	 	the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capitalized Lease Obligations,
mortgage financings or purchase money obligations, in each case Incurred for
the purpose of financing all or any part of the purchase price or cost of
construction or improvements of property used in the business of the Company or
any of its Restricted Subsidiaries, and Attributable Indebtedness, in an
aggregate principal amount, including all Refinancing Indebtedness Incurred to
refund, defease, renew, extend, refinance or replace any Indebtedness Incurred
pursuant to this clause (12), not to exceed at any time outstanding the greater
of (A) $25.0 million and (B) 2.0% of Consolidated Net Tangible Assets; and










 



62


	 	(13)	 	in addition to the items referred to in clauses (1) through
(12) above, Indebtedness of the Company and its Restricted Subsidiaries in an
aggregate outstanding principal amount which, when taken together with the
principal amount of all other Indebtedness Incurred pursuant to this clause
(13) and then outstanding, will not exceed $25.0 million.





          For purposes of determining compliance with, and the outstanding principal amount of any
particular Indebtedness Incurred pursuant to, and in compliance with, this Section 3.3:





	 	(1)	 	subject to clause (2) below, in the event that Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
the first and second paragraphs of this Section 3.3, the Company, in
its sole discretion, will classify such item of Indebtedness (or any portion
thereof) on the date of Incurrence and may later classify such item of
Indebtedness (or any portion thereof) in any manner that complies with this
Section 3.3 and only be required to include the amount and type of such
Indebtedness in one of such clauses;
	 
	 	(2)	 	all Indebtedness outstanding on the Issue Date under the Senior
Credit Agreement shall be deemed Incurred under clause (1) of the second
paragraph of this Section 3.3 and not the first paragraph or clause (5)
of the second paragraph of this Section 3.3;
	 
	 	(3)	 	Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness which is otherwise included in the determination of a
particular amount of Indebtedness shall not be included;
	 
	 	(4)	 	if obligations in respect of letters of credit are Incurred
pursuant to a Credit Facility and are being treated as Incurred pursuant to
clause (1) of the second paragraph of this Section 3.3 and the letters
of credit relate to other Indebtedness, then such other Indebtedness shall not
be included;
	 
	 	(5)	 	Indebtedness permitted by this Section 3.3 need not be
permitted solely by reference to one provision permitting such Indebtedness but
may be permitted in part by one such provision and in part by one or more other
provisions of this Section 3.3 permitting such Indebtedness; and
	 
	 	(6)	 	the amount of Indebtedness issued at a price that is less than
the principal amount thereof will be equal to the amount of the liability in
respect thereof determined in accordance with GAAP.





          Accrual of interest, accrual of dividends, the accretion of value, the payment of interest in
the form of additional Indebtedness and the payment of dividends in the form of additional shares
of Preferred Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this
Section 3.3. The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value of the Indebtedness in the case of any Indebtedness issued with original









 



63



issue discount and (ii) the principal amount or liquidation preference thereof, together with
any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.



          If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of
such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Company as of such
date (and, if such Indebtedness is not permitted to be Incurred as of such date under this
Section 3.3, the Company shall be in Default of this Section 3.3).



          For purposes of determining compliance with any U.S. dollar-denominated restriction on the
Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in
the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to
refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause
the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such Indebtedness being
refinanced. Notwithstanding any other provision of this Section 3.3, the maximum amount of
Indebtedness that the Company may Incur pursuant to this Section 3.3 shall not be deemed to
be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal
amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different
currency from the Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated
that is in effect on the date of such refinancing.



          SECTION 3.4. Limitation on Restricted Payments. The Company shall not, and shall not
permit any of its Restricted Subsidiaries, directly or indirectly, to:




	 	(1)	 	declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company or any of its Restricted
Subsidiaries) except:






	 	(a)	 	dividends or distributions payable in Capital
Stock of the Company (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock; and
	 
	 	(b)	 	dividends or distributions payable to the
Company or a Restricted Subsidiary of the Company (and if such
Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its other
holders of common Capital Stock on a pro rata basis);






	 	(2)	 	purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company or any direct or indirect parent of the Company
held by Persons other than the Company or a Restricted Subsidiary of the










 



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	 	 	 	Company (other than in exchange for Capital Stock of the Company (other than
Disqualified Stock));
	 
	 	(3)	 	purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Obligations or Guarantor Subordinated
Obligations (other than the purchase, repurchase or other acquisition of
Subordinated Obligations or Guarantor Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of purchase,
repurchase or acquisition); or
	 
	 	(4)	 	make any Restricted Investment in any Person;




(any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Restricted Investment referred to in clauses (1) through (4) shall be referred to
herein as a “Restricted Payment”), if at the time the Company or such Restricted Subsidiary
makes such Restricted Payment:





	 	(a)	 	a Default shall have occurred and be continuing
(or would result therefrom); or
	 
	 	(b)	 	the Company is not able to Incur an additional
$1.00 of Indebtedness pursuant to the first paragraph of Section
3.3 after giving effect, on a pro forma basis, to such Restricted
Payment; or
	 
	 	(c)	 	the aggregate amount of such Restricted Payment
and all other Restricted Payments declared or made subsequent to the
Issue Date would exceed the sum of:






	 	(i)	 	50% of Consolidated Net Income
for the period (treated as one accounting period) from the first
day of the fiscal quarter in which the Issue Date occurs to the
end of the most recent fiscal quarter ending prior to the date
of such Restricted Payment for which financial statements are in
existence (or, in case such Consolidated Net Income is a
deficit, minus 100% of such deficit);
	 
	 	(ii)	 	100% of the aggregate Net Cash
Proceeds, and the fair market value of any property other than
cash (determined by the Board of Directors of the Company in
good faith), received by the Company subsequent to the Issue
Date from the issue or sale of its Capital Stock (other than
Disqualified Stock) or other capital contributions, including
upon the exercise of options or warrants therefor, in each case
other than from a Subsidiary of the Company;










 



65


	 	(iii)	 	the amount by which Indebtedness
of the Company or its Restricted Subsidiaries 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 or its Restricted
Subsidiaries convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the amount
of any cash, or other property, distributed by the Company upon
such conversion or exchange); and
	 
	 	(iv)	 	the amount equal to the net
reduction in Restricted Investments made by the Company or any
of its Restricted Subsidiaries in any Person resulting from:






	 	(A)	 	repurchases or
redemptions of such Restricted Investments by such
Person, proceeds realized upon the sale of such
Restricted Investment to an unaffiliated purchaser,
repayments of loans or advances, unconditional releases
of Guarantees, or other transfers of assets (including
by way of dividend or distribution) by such Person to
the Company or any Restricted Subsidiary of the Company;
or
	 
	 	(B)	 	the redesignation
of Unrestricted Subsidiaries as Restricted Subsidiaries
(valued in each case as provided in the definition of
“Investment”) not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments
previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary,






	 	 	 	which amount in each case under this clause (iv) was included
in the calculation of the amount of Restricted Payments;
provided, however, that no amount will be included under this
clause (iv) to the extent it is already included in
Consolidated Net Income.





          The provisions of the preceding paragraph will not prohibit:





	 	(1)	 	any Restricted Payment made by exchange for, or out of the
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; provided, however, that (a) such purchase or redemption will be
excluded in subsequent calculations of the amount of Restricted










 



66


	 	 	 	Payments and (b) the Net Cash Proceeds from such sale will be excluded from
clause (c)(ii) of the preceding paragraph;
	 
	 	(2)	 	any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Subordinated Obligations of the Company or
Guarantor Subordinated Obligations made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Subordinated Obligations of the
Company or Guarantor Subordinated Obligations, respectively, that qualifies as
Refinancing Indebtedness; provided, however, that such purchase or redemption
will be excluded in subsequent calculations of the amount of Restricted
Payments;
	 
	 	(3)	 	any purchase, repurchase, redemption, defeasance or other
acquisition or retirement of Disqualified Stock of the Company or a Restricted
Subsidiary made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Disqualified Stock of the Company or such Restricted
Subsidiary, as the case may be, that, in each case, is permitted to be Incurred
pursuant to Section 3.3; provided, however, that such purchase,
repurchase, redemption, defeasance, acquisition or retirement will be excluded
from subsequent calculations of the amount of Restricted Payments;
	 
	 	(4)	 	so long as no Default or Event of Default has occurred and is
continuing, any purchase or redemption of Subordinated Obligations or Guarantor
Subordinated Obligations from Net Available Cash to the extent permitted under
Section 3.7; provided, however, that such purchase or redemption will
be excluded in subsequent calculations of the amount of Restricted Payments;
	 
	 	(5)	 	dividends paid within 60 days after the date of declaration if
at such date of declaration such dividend would have complied with this
provision; provided, however, that such dividends will be included in
subsequent calculations of the amount of Restricted Payments;
	 
	 	(6)	 	so long as no Default or Event of Default has occurred and is
continuing,
	 
	 	 	 	(a) the purchase, redemption or other acquisition, cancellation or
retirement for value of Capital Stock, or options, warrants, equity
appreciation rights or other rights to purchase or acquire Capital Stock of
the Company or any Restricted Subsidiary of the Company or any direct or
indirect parent of the Company held by any existing or former employees or
management of the Company or any Subsidiary of the Company or their assigns,
estates or heirs, in each case in connection with the repurchase provisions
under employee stock option or stock purchase agreements or other agreements
to compensate management employees; provided that such redemptions or
repurchases pursuant to this clause will










 



67


	 	 	 	not exceed $3.0 million in the aggregate during any calendar year (provided
that to the extent that any portion of the $3.0 million annual limit on such
redemptions or repurchases is not utilized in any year, such unused portion
may be carried forward and be utilized in one or more subsequent years),
plus the amount of any capital contributions to the Company as a result of
sales of Capital Stock, or options, warrants, equity appreciation rights or
other rights to purchase or acquire Capital Stock, of the Company or any
direct or indirect parent of the Company to such persons (provided, however,
that the Net Cash Proceeds from such sale will be excluded from clause
(c)(ii) of the preceding paragraph), plus the amount of any “key man”
insurance proceeds received by the Company or any Restricted Subsidiary;
	 
	 	 	 	(b) loans or advances to employees, officers or directors of the Company or
any Subsidiary of the Company the proceeds of which are used to purchase
Capital Stock of the Company, in an aggregate amount not to exceed
$5.0 million at any one time outstanding; provided that the Company and its
Subsidiaries shall comply in all material respects with the provisions of
the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith relating to such loans and advances;
	 
	 	 	 	provided, in each case, that the amount of any such repurchase or redemption
or loans or advances will be included in subsequent calculations of the
amount of Restricted Payments;
	 
	 	(7)	 	so long as no Default or Event of Default has occurred and is
continuing, the declaration and payment of dividends to holders of any class or
series of Disqualified Stock of the Company issued in accordance with the terms
of this Indenture; provided that the payment of such dividends will be included
in subsequent calculations of the amount of Restricted Payments;
	 
	 	(8)	 	repurchases of Capital Stock deemed to occur upon the exercise
of stock options if such Capital Stock represents a portion of the exercise
price thereof and cash payments in lieu of the issuance of fractional shares in
connection with the exercise of options, warrants or other convertible
securities; provided, however, that such repurchases will be excluded from
subsequent calculations of the amount of Restricted Payments;
	 
	 	(9)	 	the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated Obligation (i) at a
purchase price not greater than 101% of the principal amount of such
Subordinated Obligation in the event of a Change of Control in accordance with
provisions similar to Section 3.9 or (ii) at a purchase price not
greater than 100% of the principal amount thereof in accordance with provisions
similar to Section 3.7; provided that, prior to or simultaneously with
such










 



68


	 	 	 	purchase, repurchase, redemption, defeasance or other acquisition or
retirement, the Company has made the Change of Control Offer or Asset
Disposition Offer, as applicable, as provided in such section with respect
to the Securities and has completed the repurchase or redemption of all
Securities validly tendered for payment in connection with such Change of
Control Offer or Asset Disposition Offer; provided further that such
acquisitions or retirements will be included in subsequent calculations of
the amount of Restricted Payments;
	 
	 	(10)	 	cancellation of loans and advances owing to the Company or a
Restricted Subsidiary from members of management of the Company or a Restricted
Subsidiary in connection with a repurchase of Capital Stock (other than
Disqualified Stock) of the Company or a Restricted Subsidiary pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or other agreement or arrangement approved by the Board of
Directors to the extent such loans and advances were provided to such member of
management as consideration for the purchase of the Capital Stock so
repurchased; provided that the Company and its Subsidiaries shall comply in all
material respects with the provisions of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith relating to such
cancellation of loans and advances; provided, further, that the amount of such
loans and advances cancelled will be included in subsequent calculations of the
amount of Restricted Payments;
	 
	 	(11)	 	repurchases of Capital Stock deemed to occur upon the exercise
of stock options, warrants or other convertible securities if such Capital
Stock represents a portion of the exercise price thereof; provided that the
amount of such repurchases will be excluded in subsequent calculations of the
amount of Restricted Payments;
	 
	 	(12)	 	in connection with an acquisition by the Company or by any of
its Restricted Subsidiaries, the return to the Company or any of its Restricted
Subsidiaries of Capital Stock of the Company or any of its Restricted
Subsidiaries constituting a portion of the purchase price consideration in
settlement of indemnification claims; provided that the amount of such
consideration will be excluded in subsequent calculations of the amount of
Restricted Payments;
	 
	 	(13)	 	the purchase by the Company of fractional shares of Capital
Stock arising out of stock dividends, splits or combinations or business
combinations; provided that the amount of such purchase will be excluded in
subsequent calculations of the amount of Restricted Payments; and
	 
	 	(14)	 	so long as no default has occurred and is continuing,
Restricted Payments (other than purchases, redemptions or other acquisitions of
any Capital










 



69


	 	 	 	Stock that is restricted under clause (2) of the preceding paragraph) in an
amount not to exceed $30.0 million; provided that the amount of such
Restricted Payments will be included in subsequent calculations of the
amount of Restricted Payments.





          The amount of all Restricted Payments (other than cash) shall be the fair market value on the
date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount
and any non-cash Restricted Payment shall be determined conclusively by the Board of Directors
acting in good faith by resolution, such determination to be based upon an opinion or appraisal
issued by an investment banking firm of national standing if such fair market value is estimated to
exceed $25.0 million, or, in the case of a Vessel, to be based upon the average of written
appraisals of three Independent Appraisers. Not later than the date of making any Restricted
Payment in excess of $15.0 million that will be included in subsequent calculations of the amount
of Restricted Payments, the Company shall deliver to the Trustee an Officers’ Certificate stating
that such Restricted Payment is permitted and setting forth the basis upon which the calculations
required by Section 3.4 were computed, together with a copy of any fairness opinion or
appraisal required by this Indenture.



          SECTION 3.5. Limitation on Liens. The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, Incur or suffer to exist any Lien
(other than Permitted Liens) upon any of its property or assets (including Capital Stock), whether
owned on the Issue Date or acquired after that date, securing any Indebtedness, unless
contemporaneously with the Incurrence of the Liens effective provision is made to secure the
Indebtedness due under this Indenture and the Securities or, in respect of Liens on any Restricted
Subsidiary’s property or assets, any Subsidiary Guarantee of such Restricted Subsidiary, equally
and ratably with (or senior in priority to in the case of Liens with respect to Subordinated
Obligations or Guarantor Subordinated Obligations, as the case may be) the Indebtedness secured by
such Lien for so long as such Indebtedness is so secured.



          SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise
cause or permit to exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to:




	 	(1)	 	pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company or any
Restricted Subsidiary (it being understood that the priority of any Preferred
Stock in receiving dividends or liquidating distributions prior to dividends or
liquidating distributions being paid on Common Stock shall not be deemed a
restriction on the ability to make distributions on Capital Stock);
	 
	 	(2)	 	make any loans or advances to the Company or any Restricted
Subsidiary (it being understood that the subordination of loans or advances
made to the Company or any Restricted Subsidiary to other Indebtedness Incurred










 



70


	 	 	 	by the Company or any Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or advances); or
	 
	 	(3)	 	transfer any of its property or assets to the Company or any
Restricted Subsidiary (it being understood that such transfers shall not
include any type of transfer described in clause (1) or (2) above).





          The preceding provisions will not prohibit:




	 	(i)	 	any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Issue Date, including,
without limitation, this Indenture and the Senior Credit Agreement in
effect on such date;
	 
	 	(ii)	 	any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any Capital
Stock or Indebtedness Incurred by a Restricted Subsidiary on or before
the date on which such Restricted Subsidiary was acquired by the Company
or a Restricted Subsidiary (other than Capital Stock or Indebtedness
Incurred as consideration in, or to provide all or any portion of the
funds 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 or in contemplation
of the transaction) and outstanding on such date, provided that any such
encumbrance or restriction shall not extend to any assets or property of
the Company or any other Restricted Subsidiary other than the assets and
property so acquired and that, in the case of Indebtedness, was
permitted to be Incurred pursuant to this Indenture;
	 
	 	(iii)	 	in the case of clause (3) of the first paragraph
of this Section 3.6, any encumbrance or restriction:






	 	(a)	 	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,
or the assignment or transfer of any such lease, license or
other contract;
	 
	 	(b)	 	contained in mortgages, pledges
or other security agreements permitted under this Indenture
securing Indebtedness of the Company or a Restricted Subsidiary
to the extent such encumbrances or restrictions restrict the
transfer of the property subject to such mortgages, pledges or
other security agreements; or










 



71


	 	(c)	 	pursuant to customary provisions
restricting dispositions of real property interests set forth in
any reciprocal easement agreements of the Company or any
Restricted Subsidiary;






	 	(iv)	 	purchase money obligations for property acquired
in the ordinary course of business that impose encumbrances or
restrictions of the nature described in clause (3) of the first
paragraph of this Section 3.6 on the property so acquired;
	 
	 	(v)	 	any restriction with respect to a Restricted
Subsidiary (or any of its property or assets) imposed pursuant to an
agreement entered into for the direct or indirect sale or disposition of
all or substantially all the Capital Stock or assets of such Restricted
Subsidiary (or the property or assets that are subject to such
restriction) pending the closing of such sale or disposition;
	 
	 	(vi)	 	encumbrances or restrictions arising or existing
by reason of applicable law or any applicable rule, regulation or order;
	 
	 	(vii)	 	Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
	 
	 	(viii)	 	Liens and agreements related thereto that were permitted to be
incurred under Section 3.5 that limit the right of the debtor to
dispose of the assets subject to such Liens;
	 
	 	(ix)	 	customary provisions in joint venture agreements
and other similar agreements entered into in connection with a Related
Business;
	 
	 	(x)	 	customary provisions restricting the transfer of
any Capital Stock of an Unrestricted Subsidiary;
	 
	 	(xi)	 	net worth provisions in leases and other
agreements entered into in the ordinary course of business;
	 
	 	(xii)	 	customary provisions restricting the transfer of
copyrighted or patented materials consistent with industry practice; and
	 
	 	(xiii)	 	encumbrances or restrictions contained in indentures or debt
instruments or other debt arrangements Incurred or Preferred Stock
issued by Subsidiary Guarantors in accordance with Section 3.3,
(i) that are not more restrictive, taken as a whole, than those
applicable to the Company in either this Indenture or the Senior Credit
Agreement on the Issue Date (which results in










 



72


	 	 	 	encumbrances or restrictions comparable to those applicable to the
Company at a Restricted Subsidiary level) or (ii) that the Company
determines in good faith are customary in comparable financings and
will not adversely affect in any material respect the Company’s
ability to make principal or interest payments on the Securities as
and when due.





          SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock. (a) The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition
unless:




	 	(1)	 	the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Disposition at least equal to
the fair market value, as determined in good faith by the Board of Directors
(including as to the value of all non-cash consideration), of the shares and
assets subject to such Asset Disposition;
	 
	 	(2)	 	at least 75% of the consideration from such Asset Disposition
received by the Company or such Restricted Subsidiary, as the case may be, is
in the form of cash or Cash Equivalents; and
	 
	 	(3)	 	subject to the requirement to make an Asset Disposition Offer
as described below, an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company or such Restricted Subsidiary, as
the case may be, to any one of the following:






	 	(a)	 	to prepay, repay or purchase Indebtedness (other
than Disqualified Stock or Subordinated Obligations) of the Company or
Indebtedness (other than any Preferred Stock or Guarantor Subordinated
Obligation) of a Restricted Subsidiary (in each case other than
Indebtedness owed to the Company or an Affiliate of the Company) within
365 days from the later of the date of such Asset Disposition or the
receipt of such Net Available Cash; provided, however, that, in
connection with any prepayment, repayment or purchase of Indebtedness
pursuant to this clause (a), the Company or such Restricted Subsidiary
will retire such Indebtedness and will cause the related commitment (if
any) to be permanently reduced in an amount equal to the principal
amount so prepaid, repaid or purchased;
	 
	 	(b)	 	to acquire or invest in Additional Assets or make
installment or progress payments in respect of such Additional Assets
within 365 days from the later of the date of such Asset Disposition or
the receipt of such Net Available Cash; and
	 
	 	(c)	 	to make capital expenditures,










 



73


	 	 	 	provided that pending the final application of any such Net Available Cash
in accordance with clause (a) or clause (b) above, the Company and its
Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise
invest such Net Available Cash in any manner not prohibited by this
Indenture.





          A binding contract to apply Net Available Cash in accordance with clauses (b) and (c) above
will toll the 365-day period in respect of such Net Available Cash for a period not to exceed
180 days from the expiration of the 365-day period, provided that such binding contract shall be
treated as a permitted application of Net Available Cash from the date of such binding contract
until and only until the earlier of (i) the date on which such acquisition or expenditure is
consummated and (ii) otherwise, the 180th day following the expiration of the 365-day period
(clause (i) or clause (ii) as applicable, the “Reinvestment Termination Date”). If such acquisition
or expenditure is not consummated on or before the Reinvestment Termination Date and the Company
(or the applicable Restricted Subsidiary, as the case may be) shall not have applied such Net
Available Cash pursuant to clauses (1) through (3) above on or before the Reinvestment Termination
Date, such binding contract shall be deemed not to have been a permitted application of the Net
Available Cash.



          (b) Any Net Available Cash from Asset Dispositions that are not applied or invested as
provided in the preceding paragraphs of this Section 3.7 will be deemed to constitute
“Excess Proceeds.” On the 366th day after an Asset Disposition (subject to
tolling as described in the preceding paragraph), if the aggregate amount of Excess Proceeds
exceeds $20.0 million, the Company will be required to make an offer (“Asset Disposition
Offer”) to all Holders of Securities and to the extent required by the terms of other Pari
Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar
provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the
proceeds from any Asset Disposition (“Pari Passu Notes”), to purchase the maximum principal
amount of Securities and any such Pari Passu Notes to which the Asset Disposition Offer applies
that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to
100% of the principal amount of the Securities and Pari Passu Notes plus accrued and unpaid
interest to the date of purchase, in accordance with the procedures set forth in this Indenture or
the agreements governing the Pari Passu Notes, as applicable, in each case in minimum principal
amount of $2,000 and integral multiples of $1,000 in excess thereof. To the extent that the
aggregate amount of Securities and Pari Passu Notes so validly tendered and not properly withdrawn
pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained
in this Indenture. If the aggregate principal amount of Securities surrendered by Holders thereof
and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities and Pari Passu Notes to be purchased on a
pro rata basis on the basis of the aggregate principal amount of tendered Securities and Pari Passu
Notes. Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be
reset at zero.



          (c)(1) The Asset Disposition Offer will remain open for a period of 20 Business Days following
its commencement, except to the extent that a longer period is required by









 



74



applicable law (the “Asset Disposition Offer Period”). No later than five Business
Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition
Purchase Date”), the Company will purchase the principal amount of Securities and Pari Passu
Notes required to be purchased pursuant to this Section 3.7 (the “Asset Disposition
Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly
tendered, all Securities and Pari Passu Notes validly tendered in response to the Asset Disposition
Offer.



          (2) If the Asset Disposition Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest will be paid to the
Person in whose name a Security is registered at the close of business on such record date, and no
additional interest will be payable to Holders of the Securities who tender Securities pursuant to
the Asset Disposition Offer.



          (3) On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount
of Securities and Pari Passu Notes or portions of Securities and Pari Passu Notes so validly
tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the
Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Securities
and Pari Passu Notes so validly tendered and not properly withdrawn, in each case in minimum
principal amount of $2,000 and integral multiples of $1,000 in excess thereof. The Company will
deliver to the Trustee an Officers’ Certificate stating that such Securities or portions thereof
were accepted for payment by the Company in accordance with the terms of this Section 3.7
and, in addition, the Company will deliver all certificates and notes required, if any, by the
agreements governing the Pari Passu Notes. The Company or the Paying Agent, as the case may be,
will promptly (but in any case not later than five Business Days after termination of the Asset
Disposition Offer Period) mail or deliver to each tendering Holder of Securities or holder or
lender of Pari Passu Notes, as the case may be, an amount equal to the purchase price of the
Securities or Pari Passu Notes so validly tendered and not properly withdrawn by such holder or
lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly
issue a new Security, and the Trustee, upon delivery of an Officers’ Certificate from the Company
will authenticate and mail or deliver such new Security to such Holder, in a principal amount equal
to any unpurchased portion of the Security surrendered; provided that each such new Security will
be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. In
addition, the Company will take any and all other actions required by the agreements governing the
Pari Passu Notes. Any Security not so accepted will be promptly mailed or delivered by the Company
to the Holder thereof. The Company will publicly announce the results of the Asset Disposition
Offer on the Asset Disposition Purchase Date.



          For the purposes of this Section 3.7, the following will be deemed to be cash:




	 	(1)	 	the assumption, repayment or retirement by the transferee of
Indebtedness (other than Subordinated Obligations or Disqualified Stock) of the
Company or Indebtedness (other than Guarantor Subordinated Obligations or
Preferred Stock) of any Restricted Subsidiary of the Company and the release of
the Company or such Restricted Subsidiary from all liability on










 



75


	 	 	 	such Indebtedness in connection with such Asset Disposition (in which case
the Company will, without further action, be deemed to have applied such
deemed cash to Indebtedness in accordance with clause (a) above);
	 
	 	(2)	 	securities, notes or other obligations received by the Company
or any Restricted Subsidiary of the Company from the transferee that are
converted by the Company or such Restricted Subsidiary into cash or Cash
Equivalents within 180 days from the receipt of such obligations; and
	 
	 	(3)	 	equity securities that are publicly traded on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market.





          The Company will not, and will not permit any Restricted Subsidiary to, engage in any Asset
Swaps, unless:




	 	(1)	 	at the time of entering into such Asset Swap and immediately
after giving effect to such Asset Swap, no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof;
	 
	 	(2)	 	in the event such Asset Swap involves the transfer by the
Company or any Restricted Subsidiary of assets having an aggregate fair market
value, as determined by the Board of Directors of the Company in good faith, in
excess of $5.0 million, the terms of such Asset Swap have been approved by a
majority of the members of the Board of Directors of the Company; and
	 
	 	(3)	 	in the event such Asset Swap involves the transfer by the
Company or any Restricted Subsidiary of assets having an aggregate fair market
value, as determined by the Board of Directors of the Company in good faith, in
excess of $30.0 million, the Company has received a written opinion from an
independent investment banking firm of nationally recognized standing (or, in
the case of Vessels, three Independent Appraisers), that such Asset Swap is
fair to the Company or such Restricted Subsidiary, as the case may be, from a
financial point of view.





          (d) 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 Securities pursuant to this Section 3.7. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 3.7, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Indenture by virtue of any conflict.



          SECTION 3.8. Limitation on Affiliate Transactions. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or conduct any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of
any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless:









 



76



	 	(1)	 	the terms of such Affiliate Transaction are not materially less
favorable to the Company or such Restricted Subsidiary, as the case may be,
than those that could be obtained in a comparable transaction at the time of
such transaction in arm’s-length dealings with a Person who is not such an
Affiliate;
	 
	 	(2)	 	in the event such Affiliate Transaction involves an aggregate
consideration in excess of $10.0 million, the terms of such transaction have
been approved by a majority of the members of the Board of Directors of the
Company and by a majority of the members of such Board having no personal stake
in such transaction, if any (and such majority or majorities, as the case may
be, determines that such Affiliate Transaction satisfies the criteria in clause
(1) above); and
	 
	 	(3)	 	in the event such Affiliate Transaction involves an aggregate
consideration in excess of $25.0 million, the Company has received a written
opinion from an independent investment banking firm of nationally recognized
standing (or, in the case of Vessels, three Independent Appraisers) that such
Affiliate Transaction is not materially less favorable than those that might
reasonably have been obtained in a comparable transaction at such time on an
arm’s-length basis from a Person that is not an Affiliate.





          The preceding paragraph will not apply to:




	 	(1)	 	any Restricted Payment (other than a Restricted Investment)
permitted to be made pursuant to this Section 3.4;
	 
	 	(2)	 	any issuance of securities, or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans and other reasonable
fees, compensation, benefits and indemnities paid or entered into by the
Company or its Restricted Subsidiaries in the ordinary course of business to or
with officers, directors or employees of the Company and its Restricted
Subsidiaries;
	 
	 	(3)	 	loans or advances to employees, officers or directors of the
Company or any Restricted Subsidiary of the Company in the ordinary course of
business not to exceed $5.0 million in the aggregate outstanding at any one
time with respect to all loans or advances made since the Issue Date (without
giving effect to the forgiveness of any such loan); provided, however, that the
Company and its Subsidiaries shall comply in all material respects with the
provisions of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith relating to such loans and advances;










 



77


	 	(4)	 	any transaction between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries;
	 
	 	(5)	 	the payment of reasonable and customary fees paid to, and
indemnity provided on behalf of, officers, directors, employees or consultants
of the Company or any Restricted Subsidiary of the Company; and
	 
	 	(6)	 	the performance of obligations of the Company or any of its
Restricted Subsidiaries under the terms of any agreement to which the Company
or any of its Restricted Subsidiaries is a party on the Issue Date and
disclosed in the Offering Memorandum, as these agreements may be amended,
modified, supplemented, extended or renewed from time to time; provided,
however, that any future amendment, modification, supplement, extension or
renewal entered into after the Issue Date will be permitted to the extent that
its terms are not more disadvantageous to the Holders of the Securities than
the terms of the agreements in effect on the Issue Date.





          SECTION 3.9. Change of Control. (a) If a Change of Control occurs, each Holder of
Securities will have the right to require the Company to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities at a
purchase price in cash equal to 101% of the principal amount of the Securities 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 due on the relevant interest payment date); provided,
however, that notwithstanding the foregoing, the Company shall not be obligated to repurchase the
Securities pursuant to this Section 3.9 if the Company has exercised its right to redeem
all of the Securities pursuant to the terms of Section 5.1.



          (b) Within 30 days following any Change of Control, the Company will mail a notice (the
“Change of Control Offer”) to each registered Holder with a copy to the Trustee stating:




	 	(1)	 	that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder’s Securities at a
purchase price in cash equal to 101% of the principal amount of such Securities
plus accrued and unpaid interest, if any, to the date of purchase (subject to
the right of Holders of record on a record date to receive interest on the
relevant interest payment date) (the “Change of Control Payment”);
	 
	 	(2)	 	the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed) (the “Change of
Control Payment Date”); and
	 
	 	(3)	 	the procedures determined by the Company, consistent with this
Indenture, that a Holder must follow in order to have its Securities
repurchased.










 



78







          (c) On the Change of Control Payment Date, the Company will, to the extent lawful:




	 	(1)	 	accept for payment all Securities or portions of Securities
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) properly
tendered pursuant to the Change of Control Offer;
	 
	 	(2)	 	deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Securities or portions of Securities so
tendered; and
	 
	 	(3)	 	deliver or cause to be delivered to the Trustee the Securities
so accepted together with an Officers’ Certificate stating the aggregate
principal amount of Securities or portions of Securities being purchased by the
Company.





          (d) The Paying Agent will promptly mail to each Holder of Securities so tendered the Change of
Control Payment for such Securities, and the Trustee will promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each such new Security
will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.



          (e) If the Change of Control Payment Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, if any, will be paid to
the Person in whose name a Security is registered at the close of business on such record date, and
no additional interest will be payable to Holders who tender pursuant to the Change of Control
Offer.



          (f) The Company will not be required to make a Change of Control Offer upon 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 in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn
under such Change of Control Offer.



          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
Securities pursuant to this Section 3.9. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Indenture, the Company will comply
with the applicable securities laws and regulations and will not be deemed to have breached its
obligations described in this Indenture by virtue of the conflict.



          SECTION 3.10. Limitation on Sale of Capital Stock of Restricted Subsidiaries. The
Company shall not, and shall not permit any Restricted Subsidiary to, transfer, convey, sell, lease
or otherwise dispose of any Voting Stock of any Restricted Subsidiary or to issue any of its Voting
Stock (other than, if necessary, shares of its Voting Stock constituting directors’









 



79



qualifying shares or an immaterial amount of shares required to be owned by other Persons
pursuant to applicable law) to any Person except:




	 	(1)	 	to the Company or a Wholly-Owned Subsidiary; or
	 
	 	(2)	 	in compliance with Section 3.7 and immediately after
giving effect to such issuance or sale, such Restricted Subsidiary either
continues to be a Restricted Subsidiary or if such Restricted Subsidiary would
no longer be a Restricted Subsidiary, then the Investment of the Company in
such Person (after giving effect to such issuance or sale) would have been
permitted to be made under Section 3.4 as if made on the date of such
issuance or sale.





          Notwithstanding the preceding paragraph, the Company or any Restricted Subsidiary may sell all
the Voting Stock of a Restricted Subsidiary as long as the Company complies with the terms of
Section 3.7.



          SECTION 3.11. Future Subsidiary Guarantors. After the Issue Date, the Company will cause a
sufficient number of existing and future Restricted Subsidiaries to be Subsidiary Guarantors such
that at all times (x) the Subsidiary Guarantors, together with the Company (on a stand alone
basis), in aggregate represent at least 97% of the combined total assets of the Company and its
Restricted Subsidiaries, calculated as of the end of the most recent fiscal quarter and (y) the
Subsidiary Guarantors, together with the Company (on a stand alone basis), in aggregate represent
at least 97% of the combined revenues of the Company and its Restricted Subsidiaries, calculated
for the four full fiscal quarters ending at the end of the most recent fiscal quarter, in each case
for which financial statements are provided as required under Section 3.2. For purposes of
the calculations in the preceding sentence, with respect to any determination date, the Company and
each of its subsidiaries shall be deemed to have total assets equal to its total assets as of the
end of its most recent fiscal quarter preceding such determination date, and revenues equal to its
revenues for the four full fiscal quarters ended at the end of the most recent fiscal quarter
preceding such determination date, in each case for which financial statements have been provided
and giving pro forma effect to any material acquisitions or dispositions. If on any determination
date, the Subsidiary Guarantors do not meet the requirements under both clauses (x) and (y) in the
first sentence of this paragraph, the Company shall cause a sufficient number of Restricted
Subsidiaries to promptly (and in any event within 90 days) become Subsidiary Guarantors under this
Indenture by executing supplemental indentures substantially in the form of Exhibit C hereto, and
any non-compliance with the first sentence of this paragraph during such 90-day period shall not
constitute a Default or Event of Default.



          SECTION 3.12. Maintenance of Office or Agency. The Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency where the Securities may be
presented or surrendered for payment, where, if applicable, the Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or









 



80



shall fail to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Trustee’s Corporate Trust Office, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.



          The Company may also from time to time designate one or more other offices or agencies (in or
outside of the Borough of Manhattan, The City of New York) where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind any such designation;
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 Borough of Manhattan, The City of New York
for such purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other office or agency.



          SECTION 3.13. Corporate Existence. Subject to Article IV and Section
10.2, the Company will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and that of each Restricted Subsidiary and the corporate
rights (charter and statutory) licenses and franchises of the Company and each Restricted
Subsidiary; provided, however, that the Company shall not be required to preserve any such
existence (except the Company), right, license or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and each of its Restricted Subsidiaries, taken as a whole, and that the
loss thereof would not have a material adverse effect on the ability of the Company to perform its
obligations under the Securities or this Indenture, provided, further, the Company may merge in
accordance with Sections 4.1 and 10.2.



          SECTION 3.14. Payment of Taxes and Other Claims. The Company will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon
the income, profits or property of the Company or any Subsidiary and (ii) all lawful claims for
labor, materials and supplies, which, if unpaid, might by law become a material liability or lien
upon the property of the Company or any Restricted Subsidiary, except for any Lien permitted to be
incurred pursuant to the definition of “Permitted Liens”; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company), are being maintained in accordance with GAAP or where the
failure to pay or discharge the same would not have a material adverse effect on the ability of the
Company to perform its obligations under the Securities or this Indenture.



          SECTION 3.15. Payments for Consent. Neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fees or otherwise, to any Holder of any Securities for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid or is paid to all Holders of the Securities that
consent, waive or agree to amend in the time frame set forth in the









 



81



solicitation documents relating to such consent, waiver or amendment. A consent to any amendment,
supplement or waiver under this Indenture by any Holder given in connection with a tender of such
Holders’ Security shall not be rendered invalid by any such tender.



          SECTION 3.16. Compliance Certificate. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company an Officers’ Certificate stating that in
the course of the performance by the signers of their duties as Officers of the Company they would
normally have knowledge of any Default or Event of Default and whether or not the signers know of
any Default or Event of Default that occurred during such period. If they do, the certificate
shall describe the Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA § 314(a)(4).



          SECTION 3.17. Further Instruments and Acts. Upon the reasonable request of the
Trustee, the Company will execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.



          SECTION 3.18. Statement by Officers as to Default. The Company shall deliver to the
Trustee, as soon as possible and in any event within thirty days after the Company becomes aware of
the occurrence of any Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers’ Certificate setting forth the details of such
Event of Default or default and the action which the Company proposes to take with respect thereto.



          SECTION 3.19. Covenant Suspension. Following the first day when (i) the Securities have an
Investment Grade Rating from both of the Ratings Agencies and (ii) no Default has occurred and is
continuing at such time (the occurrence of the events described in the foregoing clauses (i) and
(ii) being collectively referred to as a “Covenant Suspension Event”), the Company and its
Restricted Subsidiaries will not be subject to Sections 3.3, 3.6, 3.7,
3.8, 3.10 and 4.1(3) of this Indenture (collectively, the “Suspended
Covenants”). If at any time after a Covenant Suspension Event, the Securities’ credit rating is
withdrawn or downgraded from an Investment Grade Rating by one or both of the Rating Agencies (the
date of such withdrawal or downgrade being referred to as the “Reversion Date”), then the
Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended and
be applicable to the Company and its Restricted Subsidiaries pursuant to the terms of this
Indenture (including in connection with performing any calculation or assessment to determine
compliance with the terms of this Indenture). The period of time between the Covenant Suspension
Event and the Reversion Date is referred to as the “Suspension Period”. Notwithstanding
the reinstatement of the Suspended Covenants, no Default, Event of Default or breach of any kind
shall be deemed to exist under this Indenture, the Securities or the Subsidiary Guarantees with
respect to the Suspended Covenants based on any actions taken or events occurring during the
Suspension Period, regardless of whether such actions or events would have been permitted if the
applicable Suspended Covenants remained in effect during such period.



          On the Reversion Date, all Indebtedness Incurred, during the Suspension Period will be
classified as having been incurred pursuant to Section 3.3 (to the extent such









 



82



Indebtedness would be permitted to be incurred thereunder as of the Reversion Date and after
giving effect to Indebtedness incurred prior to the Suspension Period and outstanding on the
Reversion Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant
to Section 3.3, such Indebtedness will be deemed to have been outstanding on the Issue
Date, so that it is classified as permitted under Section 3.3(5)(b) (other than
Indebtedness described in Section 3.3(5)(a)).



          Calculations made after the Reversion Date of the amount available to be made as Restricted
Payments under Section 3.4 will be made as though Section 3.4 had been in effect
since the Issue Date and throughout the Suspension Period.



          The Company will notify the Trustee in an Officers’ Certificate of a Covenant Suspension Event
and of a Reversion Date, promptly upon the occurrence thereof but in any event within ten (10)
Business Days after the occurrence thereof.



          No Subsidiary that is a Restricted Subsidiary on such first date that the Company and its
Restricted Subsidiaries are no longer subject to the Suspended Covenants may be redesignated as an
Unrestricted Subsidiary until such time as the Suspended Covenants are reinstated.



          SECTION 3.20. 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 outstanding
Securities as of the end of such year and (ii) such other specific information relating to such
original issue discount as may be required to be provided to the Trustee or to the holders of the
Securities pursuant to the Code and the regulations issued thereunder.



ARTICLE IV




Successor Company 




          SECTION 4.1. Merger and Consolidation. The Company will not consolidate with or merge
with or into, or convey, transfer or lease all or substantially all its assets to, any Person,
unless:




	 	(1)	 	the resulting, surviving or transferee Person (the
“Successor Company”) will be a corporation, partnership, trust or
limited liability company organized and existing under the laws of the Marshall
Islands, the United States of America, any State of the United States or the
District of Columbia, any member state of the European Union, Liberia, Malta,
Bermuda, Bahamas, Panama, British Virgin Islands, Cayman Islands, Isle of Man,
Norway, Hong Kong, Taiwan, Antigua and Barbuda, Barbados, Belize, Cyprus,
Gibraltar (UK), Jamaica, Netherlands Antilles, St. Vincent, Singapore or any
other country recognized by the United










 



83


	 	 	 	States of America with an investment grade credit rating from either
Standard & Poor’s Ratings Services or Moody’s Investors Service, Inc., and
the Successor Company (if not the Company) will 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
Securities and this Indenture and will expressly assume, by written
agreement, all the obligations of the Company under the Registration Rights
Agreement;
	 
	 	(2)	 	immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the Successor Company
or any Subsidiary of the Successor Company as a result of such transaction as
having been Incurred by the Successor Company or such Subsidiary at the time of
such transaction), no Default or Event of Default shall have occurred and be
continuing;
	 
	 	(3)	 	immediately after giving effect to such transaction, the
Successor Company would be able to Incur at least an additional $1.00 of
Indebtedness pursuant to the first paragraph of Section 3.3;
	 
	 	(4)	 	each Subsidiary Guarantor (unless it is the other party to the
transactions above, in which case clause (1) shall apply) shall have by
supplemental indenture confirmed that its Subsidiary Guarantee shall apply to
such Person’s obligations in respect of this Indenture and the Securities and
shall have by written agreement confirmed that its obligations under the
Registration Rights Agreement shall continue to be in effect; and
	 
	 	(5)	 	the Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture (if any)
comply with this Indenture.





          For purposes of this Section 4.1, the sale, lease, conveyance, assignment, transfer,
or other disposition of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.



          The Successor Company will succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture, but, in the case of a lease of all or substantially
all its assets, the predecessor Company will not be released from the obligation to pay the
principal of and interest on the Securities or its other obligations under this Indenture.



          Notwithstanding the preceding clause (3), (x) any Restricted Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and assets to









 



84



the Company or another Restricted Subsidiary and (y) the Company or any Restricted Subsidiary
may merge with an Affiliate formed solely for the purpose of reconstituting the Company in another
jurisdiction to realize tax or other benefits.



          Notwithstanding anything to the contrary in this Indenture, a Restricted Subsidiary may
reconstitute itself in another jurisdiction, or merge with or into another Restricted Subsidiary,
for the purpose of reflagging a Vessel that it owns or bareboat charters so long as at all times
each Restricted Subsidiary remains organized under the laws of the Marshall Islands, Liberia,
Malta, Taiwan, the United States of America, any State of the United States of America or the
District of Columbia or any other country recognized by the United State of America.



ARTICLE V




Redemption of Securities




          SECTION 5.1. Optional Redemption; Optional Tax Redemption. Except as set forth below,
the Securities are not redeemable prior to maturity at the option of the Company.



          (a) On and after November 15, 2013, the Company may redeem all or, from time to time, a part
of the Securities upon not less than 30 nor more than 60 days’ notice, at the following redemption
prices (expressed as a percentage of principal amount) plus accrued and unpaid interest on the
Securities, if any, to the applicable date of redemption (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 12-month period beginning on November 15 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2013

	 	 	106.000	%
	2014

	 	 	103.000	%
	2015 and thereafter

	 	 	100.000	%






          (b) Prior to November 15, 2013, the Company may redeem all or, from time to time, a part of
the Securities upon not less than 30 nor more than 60 days’ notice, at a redemption price equal to
100% of the principal amount of the Securities redeemed plus the Applicable Premium plus accrued
and unpaid interest, if any, 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).









 



85


          (c) Prior to November 15, 2012, the Company may on any one or more occasions redeem up to 35%
of the aggregate principal amount of the Securities with the Net Cash Proceeds of one or more
Public Equity Offerings at a redemption price of 112.000% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the 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);
provided that




	 	(1)	 	at least 65% of the aggregate principal amount of the
Securities remains outstanding after each such redemption; and
	 
	 	(2)	 	the redemption occurs within 180 days after the closing of such
Public Equity Offering.





          (d) The Payor will be entitled to redeem the Securities, in whole or in part, if 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 such laws, regulations or rulings,
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 Payor is or would be required on the next succeeding interest
payment date to pay Additional Amounts with respect to the Securities as set forth in Section
3.1, and the payment of such Additional Amounts cannot be avoided by the use of any reasonable
measures available to the Payor. In the case of the Company, the Change in Tax Law must become
effective on or after the date of the Offering Memorandum. In the case of a Subsidiary Guarantor,
or a successor of either the Company or a Subsidiary Guarantor, the Change in Tax Law must become
effective after the date that such entity first makes payment on the Securities. Further, the
Payor must deliver to the Trustee at least 30 days before the applicable redemption date an Opinion
of Counsel of recognized standing to the effect that the Payor has or will become obligated to pay
Additional Amounts as a result of such Change in Tax Law. The Payor must also provide the Holders
with notice of the intended redemption at least 30 days and no more than 60 days before the
applicable redemption date. The redemption price will equal the principal amount of the Security
plus accrued and unpaid interest thereon, if any to the applicable redemption date and Additional
Amounts, if any, then due and which otherwise would be payable.



          SECTION 5.2. Election to Redeem; Notice to Trustee. The election of the Company to
redeem any Securities pursuant to Section 5.1 shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company, the Company shall, upon not later than the
earlier of the date that is 45 days prior to the redemption date fixed by the Company or the date
on which notice is given to the Holders (except as provided in Section 5.4 or unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such redemption date
and of the principal amount of Securities to be redeemed and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 5.3.



          SECTION 5.3. Selection by Trustee of Securities to Be Redeemed. If less than all the
Securities are to be redeemed at any time pursuant to an optional redemption, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the









 



86



redemption date by the Trustee, from the outstanding Securities not previously called for
redemption, in compliance with the requirements of the principal securities exchange, if any, on
which such Securities are listed, or, if such Securities are not so listed, on a pro rata basis, by
lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as
complies with applicable legal requirements) and which may provide for the selection for redemption
of portions of the principal of the Securities; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to less than $2,000.



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



          For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to redemption of Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Security which has been or is
to be redeemed.



          SECTION 5.4. Notice of Redemption. Notice of redemption shall be given in the manner
provided for in Section 11.2 not less than 30 nor more than 60 days prior to the redemption
date, to each Holder of Securities to be redeemed. The Trustee shall give notice of redemption in
the Company’s name and at the Company’s expense; provided, however, that the Company shall deliver
to the Trustee, at least 45 days prior to the redemption date, an Officers’ Certificate requesting
that the Trustee give such notice at the Company’s expense and setting forth the information to be
stated in such notice as provided in the following items.



          All notices of redemption shall state:




	 	(1)	 	the redemption date,
	 
	 	(2)	 	the redemption price and the amount of accrued interest to the
redemption date payable as provided in Section 5.6, if any,
	 
	 	(3)	 	if less than all outstanding Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption,

	 
	 	(4)	 	in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the redemption
date, upon surrender of such Security, the Holder will receive, without charge,
a new Security or Securities of authorized denominations for the principal
amount thereof remaining unredeemed,

	 
	 	(5)	 	that on the redemption date the redemption price (and accrued
interest, if any, to the redemption date payable as provided in
Section 5.6) will become due and payable upon each such Security, or
the portion thereof, to be











 



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	 	 	 	redeemed, and, unless the Company defaults in making the redemption payment,
that interest on Securities called for redemption (or the portion thereof)
will cease to accrue on and after said date,

	 
	 	(6)	 	the place or places where such Securities are to be surrendered
for payment of the redemption price and accrued interest, if any,

	 
	 	(7)	 	the name and address of the Paying Agent,

	 
	 	(8)	 	that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price,

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

	 
	 	(10)	 	the paragraph of the Securities pursuant to which the
Securities are to be redeemed.






          SECTION 5.5. Deposit of Redemption Price. Prior to 9 a.m., New York City time, on any
redemption date, redemption date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 2.4) an amount of money sufficient to pay the redemption price of, and accrued
interest on, all the Securities which are to be redeemed on that date.



          SECTION 5.6. Securities Payable on Redemption Date. Notice of redemption having been
given as aforesaid, the Securities so to be redeemed shall, on the redemption date, become due and
payable at the redemption price therein specified (together with accrued interest, if any, to the
redemption date), and from and after such date (unless the Company shall default in the payment of
the redemption price and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the redemption price, together with accrued interest, if any, to the
redemption date (subject to the rights of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date). If the optional redemption date is on or
after an interest record date and on or before the related interest payment date, the accrued and
unpaid interest, if any, shall be paid to the Person in whose name the Security is registered at
the close of business on such record date.



          If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
redemption date at the rate borne by the Securities.



          SECTION 5.7. Securities Redeemed in Part.  Any Security which is to be redeemed only
in part (pursuant to the provisions of this Article) shall be surrendered at the office or agency
of the Company maintained for such purpose pursuant to Section 3.12 (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute, and the Trustee









 



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shall authenticate and make available for delivery to the Holder of such Security at the
expense of the Company, a new Security or Securities, of any authorized denomination as requested
by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered, provided, that each such new Security will
be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof. It is
understood that, notwithstanding anything in this Indenture to the contrary, only an authentication
order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to
authenticate such new Security.



ARTICLE VI




Defaults and Remedies




          SECTION 6.1. Events of Default. Each of the following is an “Event of Default”:




	 	(1)	 	default in any payment of interest or additional interest (as
required by the Registration Rights Agreement) on any Security when due,
continued for 30 days;
	 
	 	(2)	 	default in the payment of principal of or premium, if any, on
any Security when due at its Stated Maturity, upon optional redemption, upon
required repurchase, upon declaration or otherwise;
	 
	 	(3)	 	failure by the Company or any Subsidiary Guarantor to comply
with its obligations under Article IV or Section 10.2;
	 
	 	(4)	 	failure by the Company to comply with Sections 3.2,
3.3, 3.4, 3.5, 3.6, 3.7, 3.8,
3.9, 3.10, 3.11, 3.12, 3.13,
3.14 and 3.15 (in each case, other than a failure to purchase
Securities which will constitute an Event of Default under clause (2) above and
other than a failure to comply with Section 4.1 or Section 10.2
which is covered by clause (3)) and such failure continues for 30 days after
the notice specified below;
	 
	 	(5)	 	the Company defaults in the performance of or a breach by the
Company of any other covenant or agreement in this Indenture or under the
Securities (other than those referred to in (1), (2), (3) or (4) above) and
such default continues for 60 days after the notice specified below;
	 
	 	(6)	 	default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), other than Indebtedness owed to the Company or a
Restricted Subsidiary, whether such Indebtedness or










 



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	 	 	 	guarantee now exists, or is created after the date of this Indenture, which
default:






	 	(a)	 	is caused by a failure to pay principal of, or
interest or premium, if any, on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness
(“payment default”); or
	 
	 	(b)	 	results in the acceleration of such
Indebtedness prior to its Stated Maturity (the “cross acceleration
provision”);






	 	 	 	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 $20.0 million or more;
	 
	 	(7)	 	(a) the Company or any Significant Subsidiary or a group of
Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:






	 	(i)	 	commences a
voluntary case or proceeding with respect to itself;
	 
	 	(ii)	 	consents to the
entry of judgment, decree or order for relief against it
in an involuntary case or proceeding;
	 
	 	(iii)	 	consents to the
appointment of a Custodian of it or for any substantial
part of its property;
	 
	 	(iv)	 	makes a general
assignment for the benefit of its creditors;






	 	 	 	or takes any comparable action under any foreign laws relating to
insolvency; or
	 
	 	 	 	(b) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:






	 	(i)	 	is for relief
against the Company or any Significant Subsidiary or a
group of Restricted Subsidiaries that, taken together
(as of the latest audited consolidated financial
statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary
in an involuntary case;










 



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	 	(ii)	 	appoints a
Custodian of the Company or any Significant Subsidiary
or a group of Restricted Subsidiaries that, taken
together (as of the latest audited consolidated
financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary
or for any substantial part of its property; or
	 
	 	(iii)	 	orders the
winding up or liquidation of the Company or any
Significant Subsidiary or a group of Restricted
Subsidiaries that, taken together (as of the latest
audited consolidated financial statements for the
Company and its Restricted Subsidiaries) would
constitute a Significant Subsidiary;






	 	 	 	or any similar relief is granted under any foreign laws and the order,
decree or relief remains unstayed and in effect for 60 days;
	 
	 	(8)	 	failure by the Company or any Significant Subsidiary or group
of Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary to pay final judgments
aggregating in excess of $20.0 million (net of any amounts that a reputable and
creditworthy insurance company has acknowledged liability for in writing),
which judgments are not paid, discharged or stayed for a period of 60 days (the
“judgment default provision”); or
	 
	 	(9)	 	any Subsidiary Guarantee of a Significant Subsidiary or group
of Restricted Subsidiaries that taken together as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries would constitute a Significant Subsidiary ceases to be in full
force and effect (except as contemplated by the terms of this Indenture) or is
declared null and void in a judicial proceeding or any Subsidiary Guarantor
that is a Significant Subsidiary or group of Subsidiary Guarantors that taken
together as of the latest audited consolidated financial statements for the
Company and its Restricted Subsidiaries would constitute a Significant
Subsidiary denies or disaffirms its obligations under this Indenture or its
Subsidiary Guarantee.




However, a Default under clauses (4) and (5) of this Section 6.1 will not constitute an
Event of Default until the Trustee or the Holders of 25% in principal amount of the outstanding
Securities notify the Company of the Default and the Company does not cure such default within the
time specified in clauses (4) and (5) of this Section 6.1 after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that such notice is a
“Notice of Default”.










 



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          SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default
described in clause (7) of Section 6.1) occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall,
declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the
Securities to be due and payable. Upon such a declaration, such principal, premium and accrued and
unpaid interest will be due and payable immediately. In the event of a declaration of acceleration
of the Securities because an Event of Default described in clause (6) of Section 6.1 has
occurred and is continuing, the declaration of acceleration of the Securities shall be
automatically annulled if the event of default or payment default triggering such Event of Default
pursuant to clause (6) of Section 6.1 shall be remedied or cured by the Company or a
Restricted Subsidiary of the Company or waived by the holders of the relevant Indebtedness within
20 days after the declaration of acceleration with respect thereto and if (1) the annulment of the
acceleration of the Securities would not conflict with any judgment or decree of a court of
competent jurisdiction and (2) all existing Events of Default, except nonpayment of principal,
premium or interest on the Securities that became due solely because of the acceleration of the
Securities, have been cured or waived. If an Event of Default described in clause (7) of
Section 6.1 above occurs and is continuing, the principal of, premium, if any, and accrued
and unpaid interest on all the Securities will become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. The Holders of a majority
in principal amount of the outstanding Securities may waive all past defaults (except with respect
to nonpayment of principal, premium or interest) and rescind any such acceleration with respect to
the Securities and its consequences if (1) rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (2) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, and interest on the Securities that have become
due solely by such declaration of acceleration, have been cured or waived.



          SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of (or premium, if any)
or interest on the Securities or to enforce the performance of any provision of the Securities or
this Indenture.



          The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in 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. No remedy
is exclusive of any other remedy. All available remedies are cumulative.



          SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in principal amount
of the outstanding Securities by notice to the Trustee may (a) waive, by their consent (including,
without limitation consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities), an existing Default or Event of Default and its consequences except (i) a
Default or Event of Default in the payment of the principal of, or premium, if any, or interest on
a Security or (ii) a Default or Event of Default in respect of a provision that under Section
9.2 cannot be amended without the consent of each Securityholder affected and (b) rescind any
such acceleration with respect to the Securities and its consequences if rescission









 



92



would not conflict with any judgment or decree of a court of competent jurisdiction. When a
Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.



          SECTION 6.5. Control by Majority. The Holders of a majority in principal amount of
the outstanding Securities may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture
or, subject to Sections 7.1 and 7.2, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all
losses, liabilities and expenses caused by taking or not taking such action.



          SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a Securityholder
may not pursue any remedy with respect to this Indenture or the Securities unless:




	 	(1)	 	such Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing;
	 
	 	(2)	 	Holders of at least 25% in principal amount of the outstanding
Securities have requested in writing that the Trustee pursue the remedy;
	 
	 	(3)	 	such Holders have offered to the Trustee reasonable security or
indemnity against any loss, liability or expense;
	 
	 	(4)	 	the Trustee has not complied with such request within 60 days
after receipt of the request and the offer of security or indemnity; and
	 
	 	(5)	 	the Holders of a majority in principal amount of the
outstanding Securities have not given the Trustee a direction that is
inconsistent with such request within such 60-day period.





          A Securityholder may not use this Indenture to prejudice the rights of another Securityholder
or to obtain a preference or priority over another Securityholder.



          SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture (including, without limitation, Section 6.6), the right of any
Holder to receive payment of principal of, premium (if any) or interest on the Securities held by
such Holder, on or after the respective due dates expressed in the Securities, 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 6.8. Collection Suit by Trustee. If an Event of Default specified in clauses
(1) or (2) of Section 6.1 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company for the whole amount then









 



93



due and owing (together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.7.



          SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may 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 and the Securityholders allowed in any judicial proceedings relative to the Company,
its Subsidiaries or its or their respective creditors or properties and, unless prohibited by law
or applicable regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section
7.7.



          SECTION 6.10. Priorities. If the Trustee collects any money or property pursuant to
this Article VI, it shall pay out the money or property, and after an Event of Default any
money or other property distributable in respect of the Company’s obligations under this Indenture
shall be paid, in the following order:




     FIRST: to the Trustee (including any predecessor Trustee) for amounts due under
Section 7.7;




     SECOND: to Securityholders for amounts due and unpaid on the Securities for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and interest,
respectively; and




     THIRD: to the Company.



          The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this Section. At least 15 days before such record date, the Company shall mail to each
Securityholder and the Trustee a notice that states the record date, the payment date and amount to
be paid.



          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 Trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees, 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 the Company, a suit by a
Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding
principal amount of the Securities.









 



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ARTICLE VII




Trustee




          SECTION 7.1. Duties of Trustee. (a)  If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person’s own affairs; provided that if an Event
of Default occurs and is continuing, the Trustee will be under no obligation to exercise the rights
or powers under this Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against loss,
liability or expense.



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




	 	(1)	 	the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
	 
	 	(2)	 	in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates, opinions or orders furnished to
the Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provisions hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine such certificates and opinions to determine whether or not they conform
on their face to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts,
statements, opinions or conclusions stated therein).





          (c)  No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:




	 	(1)	 	this paragraph does not limit the effect of paragraphs (b) or
(g) of this Section;
	 
	 	(2)	 	the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
	 
	 	(3)	 	the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.5.





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









 



95


          (e)  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.



          (f)  Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.



          (g)  No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.



          (h)  Every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section and to
the provisions of the TIA.



          (i)  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 and such
Officer’s name is evidenced on an Officers’ Certificate setting forth the names of individuals
and/or titles of officers authorized to take specified actions pursuant to this Indenture.



          (j)  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 pursuant to this
Indenture unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses (including reasonable attorneys’ fees and expenses) and
liabilities that might be incurred by it in compliance with such request or direction.



          (k)  Subject to Section 7.1(c), the Trustee shall not be responsible for the application of
any money by any Paying Agent other than the Trustee.



          (l)  No provision of this Indenture shall be deemed to impose any duty or obligation on the
Trustee to perform any act or acts, receive or obtain any interest in property or exercise any
interest in property, or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts, to receive or
obtain any such interest in property or to exercise any such right, power, duty or obligation; and
no permissive or discretionary power or authority available to the Trustee shall be construed to be
a duty.



          SECTION 7.2. Rights of Trustee. Subject to Section 7.1:



          (a)  The Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee need not investigate any fact or matter stated in the
document.









 



96


          (b)  Whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder at
the direction of the Company or any Subsidiary Guarantor, the Trustee may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes,
suffers or omits to take in good faith in reliance on an Officers’ Certificate or Opinion of
Counsel.



          (c)  The Trustee may execute any of the trusts or power hereunder or perform any duties
hereunder either directly or by or through attorneys and agents and the Trustee shall not be
responsible for the misconduct or negligence on the part of any attorney or agent appointed with
due care by it hereunder.



          (d)  The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its discretion or its rights or powers conferred upon
it by this Indenture, unless the Trustee’s conduct constitutes willful misconduct or gross
negligence.



          (e)  The Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Securities shall be full
and complete authorization and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or opinion of such
counsel.



          (f)  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.



          (g)  The Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i), during any period it is serving as Registrar and Paying Agent for the Securities, any
Event of Default occurring pursuant to Section 6.1(i) and 6.1(ii) , or (ii) any
Default or Event of Default of which a Trust Officer shall have (A) received written notification
at the Corporate Trust Office of the Trustee and such notice references the Securities and this
Indenture or (B) obtained “actual knowledge.” “Actual knowledge” shall mean the actual fact or
statement of knowing by a Trust Officer without independent investigation with respect thereto.



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









 



97


          (i)  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.



          (j)  Any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.



          (k)  The Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its control, including, without limitation, any provision of
any future law or regulation or any future act of any governmental authority, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or
communication services; accidents; labor disputes; acts of civil or military authority and
governmental action.



          SECTION 7.3. Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Authenticating
Agent, Paying Agent, Registrar, co-registrar or co-paying agent or any other agent of the Company
may do the same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.



          SECTION 7.4. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes
no representation as to the validity, sufficiency or adequacy of this Indenture or the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the Company’s use of the
proceeds from the Securities. The Trustee shall not be responsible for any statement of the
Company in this Indenture, including the recitals contained herein, or in any document issued in
connection with the sale of the Securities or in the Securities other than the Trustee’s
certificate of authentication, and the Trustee assumes no responsibility for their correctness.
The Trustee shall have no duty to see to the performance or observance of or to perform or observe
any of the covenants and agreements on the part of the Company, any Subsidiary guarantor or any
other Person to be performed or observed. The Trustee shall not be responsible for making any
calculation or computation in respect of any matter referred to in this Indenture.



          SECTION 7.5. Notice of Defaults. If a Default or Event of Default occurs and is
continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall transmit by first
class mail to each Securityholder, as their names appear on the Note Register notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, premium (if any), or interest on any Security (including
payments pursuant to the optional redemption or required repurchase provisions of such Security, if
any), the Trustee may withhold the notice if and so long as its board of directors, the executive
committee or a trust committee of its board of directors or Trust Officers in good faith determines
that withholding the notice is in the interests of Securityholders.









 



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          SECTION 7.6. Reports by Trustee to Holders. As promptly as practicable after each
May 15 beginning with the May 15 following the date of this Indenture, and in any event prior to
July 15 in each year, the Trustee shall mail to each Securityholder a brief report dated as of such
May 15 that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b). The
Trustee shall also transmit by mail all reports required by TIA § 313(c).



          A copy of each report at the time of its mailing to Securityholders shall be filed with the
SEC and each stock exchange (if any) on which the Securities are listed. The Company agrees to
notify promptly the Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.



          SECTION 7.7. Compensation and Indemnity. The Company and each Subsidiary Guarantor
shall pay to the Trustee from time to time reasonable compensation for its acceptance of this
Indenture and all services rendered by it hereunder as the Company and the Trustee shall from time
to time agree in writing. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, costs of preparing and reviewing reports, certificates and other documents, costs of
preparation and mailing of notices to Securityholders, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee’s agents, counsel, accountants and experts. The Company and each
Subsidiary Guarantor shall jointly and severally indemnify each of the Trustee or any predecessor
Trustee and their officers, agents, directors and employees for, and hold them harmless against any
and all loss, liability, damages, claims or expense (including reasonable attorneys’ fees and
expenses and taxes (other than taxes based upon, measured by or determined by the income of the
Trustee)) incurred by it without gross negligence or willful misconduct on its part in connection
with the administration of this trust and the performance of its duties hereunder, including the
costs and expenses of enforcing this Indenture (including this Section 7.7) and of
defending itself against any claims (whether asserted by any Securityholder, the Company or
otherwise). The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall provide reasonable
cooperation at the Company’s expense in the defense. The Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel. The Company shall not be under any
obligation to pay for any written settlement without its consent, which consent shall not be
unreasonably delayed, conditioned or withheld. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own
willful misconduct or gross negligence.



          To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Securities on all money and property held or collected by the Trustee other than money
or property held in trust to pay principal of and interest on particular Securities. Such lien
shall survive the satisfaction, discharge and termination for any reason of this Indenture and the
resignation or removal of the Trustee.



          The Company’s and the Subsidiary Guarantors’ payment obligations pursuant to this Section
shall survive the satisfaction and discharge and termination for any reason of this









 



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Indenture and the resignation or removal of the Trustee. In addition to, and without
prejudice to the other rights hereunder, when the Trustee incurs expenses or renders services after
the occurrence of a Default specified in clause (7) of Section 6.1, the expenses (including
the fees and expenses of its agent and counsel) and the compensation for the services are intended
to constitute expenses of administration under any Bankruptcy Law.



          “Trustee” for purposes of this Section shall include any predecessor Trustee;
provided, however, that the negligence, willful misconduct or bad faith of a Trustee hereunder
shall not affect the rights of any other Trustee hereunder.



          SECTION 7.8. Replacement of Trustee. The Trustee or any successor hereunder may
resign at any time by so notifying the Company. The Holders of a majority in principal amount of
the Securities may remove the Trustee by so notifying the Company and the Trustee in writing and
may appoint a successor Trustee. The Company shall remove the Trustee if:




	 	(1)	 	the Trustee fails to comply with Section 7.10;
	 
	 	(2)	 	the Trustee is adjudged bankrupt or insolvent;
	 
	 	(3)	 	a receiver or other public officer takes charge of the Trustee
or its property; or
	 
	 	(4)	 	the Trustee otherwise becomes incapable of acting.





          If the Trustee resigns or is removed by the Company or by the Holders of a majority in
principal amount of the Securities and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall promptly appoint 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
Securityholders. 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 7.7.



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



          If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign
is stayed as provided in Section 310(b) of the TIA, any Securityholder who has been a bona fide
Holder of a Security for at least six months may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.









 



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          Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s and the
Subsidiary Guarantors’ obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee.



          SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another Person or banking association, the resulting, surviving or transferee Person without any
further act shall be the successor Trustee.



          In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture, any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have.



          SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy
the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at
least $100 million as set forth in its most recent published annual report of condition. The
Trustee shall comply with 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 securities or
certificates of interest or participation in other securities of the Company or any Subsidiary
Guarantor 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 shall
comply with 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.



          SECTION
7.12. Appointment of Co-Trustees.



          At any time upon the occurrence or during the continuation of an Event of Default, the
Trustee shall to the extent permitted under the TIA have power to appoint, and, upon the written
request of the Trustee or of the Securityholders of at least twenty-five per cent (25%) in
principal amount of the Securities then Outstanding, the Company and each applicable Subsidiary
Guarantor shall for such purpose join with the Trustee in the execution and delivery of all
instruments and agreements reasonably necessary or proper to appoint, one or more Persons approved
by the Trustee either to act as co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section 7.12. If
the Company or any applicable Subsidiary Guarantor does not join in such appointment within









 



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fifteen (15) days after the receipt by it of a request so to do, the Trustee alone shall have
power to make such appointment.



          Should any written instrument or instruments from the Company or any Subsidiary Guarantor be
reasonably required by any co-trustee or separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the Company and/or such
Subsidiary Guarantor.



          Every co-trustee or separate trustee shall, to the extent permitted by law and applicable
regulation, but to such extent only, be appointed subject to the following conditions:



          (a)  the Securities shall be authenticated and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;



          (b)  the rights, powers, duties and obligations hereby conferred or imposed upon the Trustee
in respect of any property covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, or by such co-trustee or separate trustee, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that under any law or
applicable regulation of any jurisdiction in which any particular act is to be performed the
Trustee shall be incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-trustee or separate
trustee, but solely at the direction of the Trustee;



          (c)  the Trustee at any time, by an instrument in writing executed by it, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this Section
7.12. The Company and each applicable Subsidiary Guarantor shall join with the Trustee in the
execution and delivery of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section 7.12; and



          (d)  neither the Trustee nor any co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder.



          Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture
and the conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture, specifically including every provision of
this Indenture relating to the conduct of, affecting the liability of, or affording protection or
rights (including the rights to compensation, reimbursement and indemnification hereunder) to, the
Trustee. Every such instrument shall be filed with the Trustee.



          Any separate trustee or co-trustee may at any time constitute the Trustee its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by law and









 



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applicable regulations, to do any lawful act under or in respect of this Indenture on its
behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of his, her or its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted by law and applicable
regulations, without appointment of a new or successor trustee.



ARTICLE VIII




Discharge of Indenture; Defeasance




          SECTION 8.1. Discharge of Liability on Securities; Defeasance. (a)  Subject to
Section 8.1(c), when (i)(x) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.9) for cancellation or (y) all
outstanding Securities not theretofore delivered for cancellation have become due and payable,
whether at maturity or upon redemption or will become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption pursuant to Article 5 hereof by reason of the mailing of a notice
of redemption or otherwise, and the Company or any Subsidiary Guarantor irrevocably deposits or
causes to be deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders money in U.S. dollars, non-callable U.S. Government Obligations, or a combination thereof,
in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay
and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption; (ii) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other material instrument to which the
Company or any Subsidiary Guarantor is a party or by which the Company or any Guarantor is bound;
(iii) the Company or any Subsidiary Guarantor has paid or caused to be paid all sums payable under
this Indenture and the Securities; and (iv) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward the payment of such Securities
at maturity or the redemption date, as the case may be, then the Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company (accompanied by an Officers’
Certificate and an Opinion of Counsel stating that all conditions precedent specified herein
relating to the satisfaction and discharge of this Indenture have been complied with) and at the
cost and expense of the Company.



          (b)  Subject to Sections 8.1(c) and 8.2, the Company at any time may terminate
(i) all its obligations under the Securities and this Indenture (“legal defeasance
option”), and after giving effect to such legal defeasance, any omission to comply with such
obligations shall no longer constitute a Default or Event of Default or (ii) its obligations under
Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8,
3.9, 3.10, 3.11, 3.15 and 4.1(3) and 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 covenant, 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 with such covenants shall no
longer constitute a Default or an Event of Default under Section 6.1(4) and 6.1(5)
and the operation of Sections 









 



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6.1(6), 6.1(7) (but only with respect to a Significant Subsidiary or group of
Restricted Subsidiaries that would constitute a Significant Subsidiary), 6.1(8) and
6.1(9), and the events specified in such Sections shall no longer constitute an Event of
Default (clause (ii) being referred to as the “covenant defeasance option”), but except as
specified above, the remainder of this Indenture and the Securities shall be unaffected thereby.
The Company may exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option. If the Company exercises its covenant defeasance option, the Company
may elect to have any Subsidiary Guarantees in effect at such time terminate.




          If the Company exercises its legal defeasance option, payment of the Securities may not be
accelerated because of an Event of Default, and the Subsidiary Guarantees in effect at such time
shall terminate. If the Company exercises its covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default specified in Section
6.1(4), 6.1(5), (as such Section relates to 3.2, 3.3, 3.4,
3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, and
3.15), 6.1(5), 6.1(6), 6.1(7) (but only with respect to a
Significant Subsidiary or group of Restricted Subsidiaries that would constitute a Significant
Subsidiary), 6.1(8) or 6.1(9) or because of the failure of the Company to comply
with Section 4.1(3).



          Upon satisfaction of the conditions set forth herein and upon request of the Company, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.



          (c)  Notwithstanding the provisions of Sections 8.1(a) and (b), the Company’s
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6,
2.9, 2.10, 2.11, 3.1, 3.15, 3.16, 3.17,
3.18, 3.19, 3.20, 3.21, 6.7, 7.7, 7.8 and
in this Article VIII shall survive until the Securities have been paid in full.
Thereafter, the Company’s obligations in Sections 7.7, 8.4 and 8.5 shall
survive.



          SECTION 8.2. Conditions to Defeasance. The Company may exercise its legal defeasance
option or its covenant defeasance option only if:




	 	(1)	 	the Company irrevocably deposits in trust with the Trustee for
the benefit of the Holders money in U.S. dollars or U.S. Government Obligations
or a combination thereof for the payment of principal, premium, if any, and
interest on the Securities to maturity or redemption, as the case may be;

	 
	 	(2)	 	the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the Securities to
maturity;

	 
	 	(3)	 	no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;

	 
	 	(4)	 	such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default under, this Indenture or
any other











 



104


	 	 	 	material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound;

	 
	 	(5)	 	the Company shall have delivered to the Trustee an Opinion of
Counsel (subject to customary assumptions and exclusions) to the effect that
(A) the Securities and (B) assuming no intervening bankruptcy of the Company
between the date of deposit and the 91st day following the deposit and that no
Holder of the Securities is an insider of the Company, 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’ right generally;

	 
	 	(6)	 	the Company delivers to the Trustee an Opinion of Counsel
(subject to customary assumptions and exclusions) to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;

	 
	 	(7)	 	in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) in the United States stating that (i) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) 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 will not
recognize income, gain or loss for federal income tax purposes as a result of
such 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;

	 
	 	(8)	 	in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) in the United States to the effect that the Holders
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit and covenant defeasance had not
occurred; and

	 
	 	(9)	 	the Company delivers to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities and this Indenture as contemplated
by this Article VIII have been complied with.






          SECTION 8.3. Application of Trust Money. The Trustee shall hold in trust money or
U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall









 



105



apply the deposited money and the money from U.S. Government Obligations through the Paying
Agent and in accordance with this Indenture to the payment of principal of and interest on the
Securities.



          SECTION 8.4. Repayment to Company. Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Order any money or
U.S. Government Obligations held by it as provided in this Article VIII which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect legal defeasance or covenant defeasance, as applicable,
provided that the Trustee shall not be required to liquidate any U.S. Government Obligations in
order to comply with the provisions of this paragraph.



          Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal of or interest on
the Securities that remains unclaimed for two years, and, thereafter, Securityholders entitled to
the money must look to the Company for payment as general creditors.



          SECTION 8.5. Indemnity for U.S. Government Obligations. The Company shall pay and
shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on such U.S.
Government Obligations.



          SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company
under this Indenture and the Securities 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 or U.S. Government Obligations in accordance with this
Article VIII; provided, however, that, if the Company has made any payment of interest on
or principal of any Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.



ARTICLE IX




Amendments, Supplements and Waivers 




          SECTION 9.1. Without Consent of Holders. The Company, the Subsidiary Guarantors and
the Trustee may amend this Indenture, the Securities or the Subsidiary Guarantees without notice to
or consent of any Securityholder:




	 	(1)	 	to cure any ambiguity, defect or inconsistency;










 



106


	 	(a)	 	to comply with (i) Article IV in respect of the
assumption by a Successor Company of an obligation of the Company or Subsidiary
Guarantors under this Indenture and the Securities and (ii) Article IV
and Article X in respect of the assumption by a Person of the
obligations of a Subsidiary Guarantor under its Subsidiary Guarantee and this
Indenture;
	 
	 	(2)	 	to provide for uncertificated Securities in addition to or in
place of certificated Securities (provided that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Securities are described in Section
163(f) (2) (B) of the Code);
	 
	 	(3)	 	to add Guarantees with respect to the Securities or to release
a Subsidiary Guarantor in accordance with this Indenture; provided, however,
that the designation is in accord with the applicable provisions of this
Indenture;
	 
	 	(4)	 	to secure the Securities;
	 
	 	(5)	 	to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
	 
	 	(6)	 	to make any change that does not adversely affect the rights of
any Securityholder in any material respect;
	 
	 	(7)	 	to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of this Indenture under the Trust
Indenture Act;
	 
	 	(8)	 	provide for the appointment of a successor trustee; provided
that the successor trustee is otherwise qualified and eligible to act as such
under the terms of this Indenture; or
	 
	 	(9)	 	conform the text of this Indenture, the Securities or the
Subsidiary Guarantees to any provision of the “Description of notes” in the
Offering Memorandum to the extent that such provision in the “Description of
notes” was intended to be a verbatim recitation of a provision of this
Indenture, the Securities or the Subsidiary Guarantees.





          After an amendment or supplement under this Section becomes effective, the Company shall mail
to Securityholders a notice briefly describing such amendment or supplement. The failure to give
such notice to all Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment or supplement under this Section.



          SECTION 9.2. With Consent of Holders. The Company, the Subsidiary Guarantors and the
Trustee may amend or supplement this Indenture, the Securities or the Subsidiary Guarantees without
notice to any Securityholder but with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding (including,









 



107



without limitation, consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Securities). However, without the consent of each Securityholder affected, an
amendment, supplement or waiver may not:




	 	(1)	 	reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
	 
	 	(2)	 	reduce the stated rate of, or extend the stated time for,
payment of interest on any Security;
	 
	 	(3)	 	reduce the principal of or extend the Stated Maturity of any
Security;
	 
	 	(4)	 	reduce the premium payable upon the redemption or repurchase of
any Security or change the time at which any Security may be redeemed or
repurchased as described under Article V, Section 3.9,
Section 3.7 or any similar provision, whether through an amendment or
waiver of provisions in the covenants, definitions or otherwise;
	 
	 	(5)	 	make any Security payable in currency other than that stated in
the Security;
	 
	 	(6)	 	impair the right of any Holder to receive payment of, premium,
if any, principal of and interest on such Holder’s Securities 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 Securities; or
	 
	 	(7)	 	make any change in the amendment provisions which require each
Holder’s consent or in the waiver provisions.





          It shall not be necessary for the consent of the Holders under this Section to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof. A consent to any amendment, supplement or waiver under
this Indenture by any Holder of the Securities given in connection with a tender of such Holder’s
Securities will not be rendered invalid by such tender.



          After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment, supplement or waiver.
The failure to give such notice to all Securityholders, or any defect therein, shall not impair or
affect the validity of an amendment, supplement or waiver under this Section.



          SECTION 9.3. Compliance with Trust Indenture Act. From the date on which this
Indenture is qualified under the Trust Indenture Act, every amendment, supplement or waiver to this
Indenture or the Securities shall comply with the TIA as then in effect.









 



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          SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent to an
amendment, supplement or a waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent or waiver is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent or waiver as to
such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective. After an amendment,
supplement or waiver becomes effective, it shall bind every Securityholder. An amendment,
supplement or waiver shall become effective upon receipt by the Trustee of the requisite number of
written consents.



          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Securityholders entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at
such record date (or their duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such action, whether or
not such Persons continue to be Holders after such record date. No such consent shall become valid
or effective more than 120 days after such record date.



          SECTION 9.5. Notation on or Exchange of Securities. If an amendment or supplement
changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Security regarding the
changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate
a new Security that reflects the changed terms. Failure to make the appropriate notation or to
issue a new Security shall not affect the validity of such amendment or supplement.



          SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or
waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If
it does, the Trustee may but need not sign it. In signing such amendment, supplement or waiver the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and
(subject to Sections 7.1 and 7.2) shall be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel stating that such amendment, supplement or waiver
is authorized or permitted by this Indenture.



ARTICLE X




Subsidiary Guarantee




          SECTION 10.1. Subsidiary Guarantee. Each Subsidiary Guarantor hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly
and severally with each other Subsidiary Guarantor, to each Holder of the Securities and the
Trustee the full and punctual payment when due, whether at maturity, by acceleration, by









 



109



redemption or otherwise, of the principal of, premium, if any, and interest on the Securities
and all other monetary obligations of the Company under this Indenture and the Registration Rights
Agreement (all the foregoing being hereinafter collectively called the “Obligations”).
Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Obligations may
be extended or renewed, in whole or in part, without notice or further assent from it, and that it
will remain bound under this Article X notwithstanding any extension or renewal of any
Obligation.



          Each Subsidiary Guarantor waives, to the extent permitted by law, presentation to, demand of
payment from and protest to the Company of any of the Obligations and also waives notice of protest
for nonpayment. Each Subsidiary Guarantor waives, to the extent permitted by law, notice of any
default under the Securities or the Obligations.



          Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require
that any resort be had by any Holder to any security held for payment of the Obligations.



          Except as expressly set forth in Section 4.2, Section 10.2 and Article
VIII, the obligations of each Subsidiary Guarantor hereunder shall not, to the extent permitted
by law, be subject to any reduction, limitation, impairment or termination for any reason (other
than payment of the Obligations in full), including any claim of waiver, release, surrender,
alteration or compromise, and shall not, to the extent permitted by law, be subject to any defense
of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Subsidiary Guarantor herein shall not, to the extent
permitted by law, be discharged or impaired or otherwise affected by the failure of any Holder to
assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any
other agreement, by any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act or thing or
omission or delay to do any other act or thing which may or might in any manner or to any extent
vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.



          Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof,
of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by
any Holder upon the bankruptcy or reorganization of the Company or otherwise.



          In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the
Company to pay any of the Obligations when and as the same shall become due, whether at maturity,
by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing
and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law).









 



110


          Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the
one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of
acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantor for the purposes of this Subsidiary Guarantee.



          Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any
rights under this Section.



          SECTION 10.2. Limitation on Liability; Termination, Release and Discharge.



          (a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations
of each Subsidiary Guarantor hereunder will be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary Guarantor (including,
without limitation, any guarantees under the Senior Credit Agreement) and after giving effect to
any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect
of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
its contribution obligations under this Indenture, result in the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law and not otherwise being void or voidable under any similar laws
affecting the rights of creditors generally.



          (b) A Subsidiary Guarantor will be deemed released and relieved of its obligations under this
Indenture, its Subsidiary Guarantee and the Registration Rights Agreement (i) upon the sale or
disposition of such Subsidiary (by merger, consolidation, the sale of its Capital Stock or the sale
of all or substantially all of its assets (other than by a vessel charter made in the ordinary
course of business)) and whether or not the Subsidiary is the surviving corporation in such
transaction to a Person (whether or not an Affiliate of the Subsidiary) which is not the Company or
a Restricted Subsidiary of the Company, which sale or disposition is otherwise in compliance with
this Indenture (including, without limitation, Sections 3.4, 3.7,
3.10 and 3.11), (ii) without any further action required on the part of the Company
or such Subsidiary upon the designation of such Subsidiary as an Unrestricted Subsidiary in
accordance with the terms of this Indenture; (iii) in the event that the Company notifies the
Trustee in writing that such Subsidiary shall no longer constitute a Subsidiary Guarantor, so long
as the Company is in compliance with Section 3.11 as determined after giving effect to such
Subsidiary ceasing to be a Subsidiary Guarantor; (iv) upon liquidation or dissolution of such
Subsidiary; or (v) upon legal or covenant defeasance of the Securities or upon satisfaction or
discharge of the Securities as provided in Article VIII. The Company shall give to the
Trustee prompt written notice that any such Subsidiary no longer constitutes a Subsidiary
Guarantor.



          SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor hereby agrees that to
the extent that any Subsidiary Guarantor shall have paid more than its proportionate share of any
payment made on the obligations under the Subsidiary Guarantees,









 



111



such Subsidiary Guarantor shall be entitled to seek and receive contribution from and against
the Company or any other Subsidiary Guarantor who has not paid its proportionate share of such
payment. The provisions of this Section 10.3 shall in no respect limit the obligations and
liabilities of each Subsidiary Guarantor to the Trustee and the Holders and each Subsidiary
Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such
Subsidiary Guarantor hereunder.



          SECTION 10.4. No Subrogation. Notwithstanding any payment or payments made by each
Subsidiary Guarantor hereunder, no Subsidiary Guarantor shall be entitled to be subrogated to any
of the rights of the Trustee or any Holder against the Company or any other Subsidiary Guarantor or
any collateral security or guarantee or right of offset held by the Trustee or any Holder for the
payment of the Obligations, nor shall any Subsidiary Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Subsidiary Guarantor in respect of
payments made by such Subsidiary Guarantor hereunder, until all amounts owing to the Trustee and
the Holders by the Company on account of the Obligations are paid in full. If any amount shall be
paid to any Subsidiary Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such Subsidiary
Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Subsidiary
Guarantor, and shall, forthwith upon receipt by such Subsidiary Guarantor, be turned over to the
Trustee in the exact form received by such Subsidiary Guarantor (duly indorsed by such Subsidiary
Guarantor to the Trustee, if required), to be applied against the Obligations.



          SECTION 10.5. Evidence of Subsidiary Guarantees. The form of Subsidiary Guarantee to
be annexed to the Securities is set forth in Exhibit A and Exhibit B. Each Subsidiary Guarantor
shall execute its Subsidiary Guarantee to be annexed to each Security authenticated and delivered
by the Trustee. The Subsidiary Guarantees shall be executed on behalf of each Subsidiary Guarantor
by an Officer of such Subsidiary Guarantor. The signature of any Officer of a Subsidiary Guarantor
on the Subsidiary Guarantee may be manual or facsimile. The delivery of any Security by the
Trustee, after due authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee endorsed thereon on behalf of each Subsidiary Guarantor. Each Subsidiary
Guarantor agrees that its Subsidiary Guarantee set forth in Section 10.1 hereof, or in a
supplemental indenture hereto substantially in the form set forth in Exhibit C, shall remain in
full force and effect notwithstanding any failure to endorse a Subsidiary Guarantee on any
Security.



ARTICLE XI




Miscellaneous




          SECTION 11.1. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to be included in this
Indenture by the TIA, the provision required by the TIA shall control. Each Subsidiary Guarantor
in addition to performing its obligations under its Subsidiary Guarantee shall perform such other
obligations as may be imposed upon it with respect to this Indenture under the TIA.









 



112


          SECTION 11.2. Notices. Any notice or communication shall be in writing and delivered
in person or mailed by first-class mail addressed as follows:


if to the Company:



General Maritime Corporation

35 West 56th Street

New York, New York 10019

Attn: John C. Georgiopoulos, Secretary



with a copy to:



Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, New York 10036

Attn: Thomas E. Molner, Esq.



if to the Trustee:



The Bank of New York Mellon

101 Barclay Street, 8 West

New York, New York 10286

Attn: Corporate Trust Division – Corporate 

Finance Unit


Facsimile: (212) 815-5704




          The Company or the Trustee by written notice to the other may designate additional or
different addresses for subsequent notices or communications.



          Any notice or communication mailed to a registered Securityholder shall be mailed to the
Securityholder at the Securityholder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time prescribed.



          Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the addressee receives it.



          All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery, provided that any notice or communication delivered to the Trustee
shall be deemed effective upon actual receipt thereof by the Trustee at the Corporate Trust Office
of the Trustee.









 



113


          The Trustee shall have the right, but shall not be required, to rely upon and comply with
instructions and directions sent by e-mail, facsimile and other similar unsecured electronic
methods by persons believed by the Trustee to be authorized to give instructions and directions on
behalf of the Company. The Trustee shall have no duty or obligation to verify or confirm that the
person who sent such instructions or directions is, in fact, a person authorized to give
instructions or directions on behalf of the Company; and the Trustee shall have no liability for
any losses, liabilities, costs or expenses incurred or sustained by the Company as a result of such
reliance upon or compliance with such instructions or directions. The Company agrees to assume all
risks arising out of the use of such electronic methods to submit instructions and directions to
the Trustee, including without limitation the risk of the Trustee acting on unauthorized
instructions, and the risk of interception and misuse by third parties.



          SECTION 11.3. Communication by Holders with other Holders. Securityholders may
communicate pursuant to TIA § 312(b) with other Securityholders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).



          SECTION 11.4. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:




     (1) an Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with; and




     (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.



          SECTION 11.5. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
shall include:




     (1) a statement that the individual making such certificate or opinion has read such
covenant or condition;




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




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




     (4) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.



          In giving such Opinion of Counsel, counsel may rely as to factual matters on representations
of the Company and of officers and other representatives of the Company or on certificates of
public officials.
















 





114




          SECTION 11.6. When Securities Disregarded. In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Affiliate of the Company shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities which a Trust
Officer of the Trustee knows are so owned shall be so disregarded. Also, subject to the foregoing,
only Securities outstanding at the time shall be considered in any such determination.



          SECTION 11.7. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by, or a meeting of, Securityholders. The Registrar and the Paying
Agent may make reasonable rules for their functions.



          SECTION 11.8. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or
other day on which commercial banking institutions are authorized or required by law, regulation or
executive order to be closed in New York City. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period. If a regular record date is a Legal Holiday, the record date shall not be
affected.



          SECTION 11.9. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS INDENTURE, THE SECURITIES AND
THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK. EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF,
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
INDENTURE, THE SECURITIES OR SUBSIDIARY GUARANTEES OR ANY TRANSACTION RELATED HERETO OR THERETO TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.



          SECTION
11.10. Jurisdiction; Consent to Service of Process(a). Each of the Company
and the Subsidiary Guarantors hereby irrevocably and unconditionally submits, for each of them and
their property, to the general jurisdiction of the New York State courts or the federal courts of
the United States of America for the Southern District of New York, in each case sitting in the
Borough of Manhattan, the City of New York , and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Indenture, the Securities or the Subsidiary
Guarantees, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Indenture shall affect any right
that any Holder may otherwise have to bring any action or proceeding relating to this Indenture,
the Securities and the Subsidiary Guarantees against the Company, the Subsidiary Guarantors or
their respective properties in the courts of any jurisdiction.









 



 


115




     (b) Each of the Company and the Subsidiary Guarantors hereby irrevocably and unconditionally
waives, and agrees not to plea or claim, to the fullest extent they may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Indenture, the Securities or the Subsidiary
Guarantees in any New York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (c) Each of the Company and the Subsidiary Guarantors hereby irrevocably and unconditionally
appoints Corporation Service Company with an office on the date hereof at 1180 Avenue of the
Americas, Suite 210, New York, NY 10036, and its successors hereunder (the “Process
Agent”), as its agent to receive on behalf of each of the Company, the Subsidiary Guarantors
and its respective property of all writs, claims, process, and summonses in any action or
proceeding brought against it in the State of New York. Such service may be made by mailing or
delivering a copy of such process to the each of the Company or the Subsidiary Guarantors, in care
of the Process Agent at the address specified above for the Process Agent, and each of the Company
and the Subsidiary Guarantors hereby irrevocably authorizes and directs the Process Agent to accept
such service on its behalf. Failure by the Process Agent to give notice to the Company or the
Subsidiary Guarantors, as applicable, or failure of the Company or the Subsidiary Guarantors to
receive notice of such service of process shall not impair or affect the validity of such service
on the Process Agent, the Company or the Subsidiary Guarantors, or of any judgment based thereon.
Each of the Company and the Subsidiary Guarantors covenants and agrees that it shall take any and
all reasonable action, including the execution and filing of any and all documents, that may be
necessary to continue the designation of the Process Agent above in full force and effect, and to
cause the Process Agent to act as such. Each of the Company and the Subsidiary Guarantors further
covenants and agrees to maintain at all times an agent with offices in New York City to act as its
Process Agent. Nothing herein shall in any way be deemed to limit the ability to serve any such
writs, process or summonses in any other manner permitted by applicable law.



           SECTION
11.11. Currency Indemnity (a). U.S. Dollars is the sole currency of
account and payment for all sums payable by the Company or any Subsidiary Guarantor under or in
connection with this Indenture, the Securities or the Subsidiary Guarantees. Any amount received
or recovered in currency other than U.S. Dollars (whether as a result of, or of the enforcement of,
a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the
Company, any Subsidiary or otherwise) by any Holder of the Securities in respect of any sum
expressed to be due to it from the Company or any Subsidiary Guarantor shall only constitute a
discharge of them under this Indenture, the Securities or the Subsidiary Guarantees only to the
extent of the U.S. Dollar amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt or recovery (or, if it is
not practicable to make that purchase on that date, on the first date on which it is practicable to
do so). If that U.S. Dollar amount is less than the U.S. Dollar amount expressed to be due to the
recipient under this Indenture, the Securities or the Subsidiary Guarantees, the Company and the
Subsidiary Guarantors shall, jointly and severally, indemnify and hold harmless the recipient
against any loss sustained by it in making any such purchase. In any event, the Company and the
Subsidiary Guarantors shall, jointly and severally, indemnify the Holder against the cost of making
any purchase of U.S. Dollars. For the purposes of this Section 









 



 


116



11.11, it shall be sufficient for the Holder of a Security to certify in a
satisfactory manner that it would have suffered a loss had an actual purchase of U.S. Dollars been
made with the amount received in that other currency on the date of receipt or recovery (or, if a
purchase of U.S. Dollars on such date had not been practicable, on the first date on which it would
have been practicable) and that the change of the purchase date was needed.




          (b) The indemnities of the Company and the Subsidiary Guarantors contained in this
Section 11.11, to the extent permitted by law: (i) constitute a separate and independent
obligation from the other obligations of the Company and the Subsidiary Guarantors under this
Indenture, the Securities and the Subsidiary Guarantees; (ii) shall give rise to a separate and
independent cause of action against the Company and the Subsidiary Guarantors; (iii) shall apply
irrespective of any indulgence granted by any Holder of the Securities from time to time; and
(iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or
proof for a liquidated amount in respect of any sum due under the Securities.




          SECTION 11.12. No Recourse Against Others. An incorporator, director, officer,
employee, partner, member, manager, stockholder, as such, of the Company or any Subsidiary
Guarantor shall not have any liability for any obligations of the Company under the Securities,
this Indenture or the Subsidiary Guarantees or for any claim based on, in respect of or by reason
of, such obligations or their creation. By accepting a Security, each Securityholder shall waive
and release all such liability. The waiver and release shall be part of the consideration for the
issue of the Securities.




          SECTION 11.13. Successors. All agreements of the Company in this Indenture, the
Securities and the Subsidiary Guarantees shall bind their respective successors. All agreements of
the Trustee in this Indenture shall bind its successors.




          SECTION 11.14. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.




          SECTION 11.15. Performance of Obligations under the Registration Rights Agreement.
The Company and the Subsidiary Guarantors will perform the obligations to which they are subject
under the Registration Rights Agreement, dated as of the Issue Date, subject to the terms and
conditions contained therein.




          SECTION 11.16. Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.




          SECTION 11.17. Severability. In case any provision in this 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.










 



 


     If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.



	 	 	 	 	 
	 	Very truly yours,



GENERAL MARITIME CORPORATION

 	 
	 	By  	/s/ John Georgiopoulos 	 
	 	 	Name:  	John Georgiopoulos 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	Subsidiary Guarantors:



GENERAL MARITIME SUBSIDIARY CORPORATION

 	 
	 	By  	/s/ John Georgiopoulos 	 
	 	 	Name:  	John Georgiopoulos 	 
	 	 	Title:  	Treasurer 	 
	 
	 	GENERAL MARITIME MANAGEMENT LLC

 	 
	 	By  	/s/ Peter S. Bell 	 
	 	 	Name:  	Peter S. Bell 	 
	 	 	Title:  	Manager & Commercial Director 	 
	 



[Signature Page to the Indenture]











 



 


 2




	 	 	 	 	 
	 	GMR AGAMEMNON LLC

GMR AJAX LLC

GMR ALEXANDRA LLC

GMR ARGUS LLC

GMR CHARTERING LLC

GMR CONSTANTINE LLC

GMR DAPHNE LLC

GMR DEFIANCE LLC

GMR ELEKTRA LLC

GMR GEORGE T LLC

GMR GULF LLC

GMR HARRIET G. LLC

GMR HOPE LLC

GMR HORN LLC

GMR KARA G LLC

GMR MINOTAUR LLC

GMR ORION LLC

GMR PHOENIX LLC

GMR PRINCESS LLC

GMR PROGRESS LLC

GMR REVENGE LLC

GMR ST. NIKOLAS LLC

GMR SPYRIDON LLC

GMR STRENGTH LLC

 	 
	 	By  	/s/ John Georgiopoulos 	 
	 	 	Name:  	John Georgiopoulos 	 
	 	 	Title:  	Manager 	 
	 
	 	ARLINGTON TANKERS LTD.

VISION LTD.

VICTORY LTD.

COMPANION LTD.

COMPATRIOT LTD.

CONCORD LTD.

CONSUL LTD.

CONCEPT LTD.

CONTEST LTD.

 	 
	 	By  	/s/ John Georgiopoulos 	 
	 	 	Name:  	John Georgiopoulos 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to the Indenture]











 



 


 3




	 	 	 	 	 
	 	GENERAL MARITIME MANAGEMENT 

(PORTUGAL) LDA.

 	 
	 	By  	/s/ Rui Jorge Pais Pereira 	 
	 	 	Name:  	Rui Jorge Pais Pereira 	 
	 	 	Title:  	Manager 	 
	 
	 	GENERAL MARITIME MANAGEMENT (PORTUGAL) LLC

 	 
	 	By  	/s/ Rui Jorge Pais Pereira 	 
	 	 	Name:  	Rui Jorge Pais Pereira 	 
	 	 	Title:  	Manager 	 
	 



[Signature Page to the Indenture]











 



 


 4




	 	 	 	 	 
	 	THE COMMON SEAL of

GENERAL MARITIME CREWING PTE. LTD.

was hereunto affixed by

 	 
	 	  	/s/ James Edward Paisley 	 
	 	 	James Edward Paisley 	 
	 	 	Director 	 
	 
	 	 	 
	 	  	/s/ Cher Choon Teck 	 
	 	 	Cher Choon Teck 	 
	 	 	Secretary 	 



[Signature Page to the Indenture]











 



 

	 	 	 	 	 




 5




	 	 	 	 	 
	 	LIMITED “GENERAL MARITIME CREWING”
 (RUSSIA
CORPORATION)

 	 
	 	By  	/s/ Gennadiy Liventsov 	 
	 	 	Name:  	Gennadiy Liventsov 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to the Indenture]











 



 

	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, as 

Trustee

 	 
	 	By:  	/s/ Beata Harvin 	 
	 	 	Name:  	Beata Harvin 	 
	 	 	Title:  	Vice President 	 
	 




[Signature Page to the Indenture]











 



 


EXHIBIT A




[FORM OF FACE OF UNREGISTERED NOTE]


[Applicable Restricted Securities Legend]

[Depository Legend, if applicable]

[OID Legend, if applicable]




	 	 	 
	No. [___]

	 	Principal Amount $[                    ]
	 

	 	CUSIP NO.                     






GENERAL MARITIME CORPORATION



12% Senior Notes due 2017




          General Maritime Corporation, a Marshall Islands corporation, promises to pay to [                    ],
or registered assigns, the principal sum of [                                        ] Dollars, on November 15, 2017.





Interest Payment Dates: May 15 and November 15 of each year, commencing on [     ]




Record Dates: May 1 and November 1 of each year, immediately preceding the
applicable interest payment date




Additional provisions of this Security are set forth on the other side of this Security.



A-1








 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	GENERAL MARITIME CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	 
 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TRUSTEE’S CERTIFICATE OF	 	 	 	 	 	 	 	 
	 	AUTHENTICATION

	 	 	 	 	 	 	 	 
	THE BANK OF NEW YORK MELLON	 	 	 	 	 	 	 	 
	as Trustee, certifies	 	 	 	 	 	 	 	 
	that this is one of	 	 	 	 	 	 	 	 
	the Securities referred	 	 	 	 	 	 	 	 
	to in the Indenture.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By

	 	  

Authorized
Signatory
	 	 	 	 	 	Date:
	 	 







A-2











 





[FORM OF REVERSE SIDE OF UNREGISTERED NOTE]




12% Senior Notes due 2017




1. Interest




          General Maritime Corporation, a Marshall Islands corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein called the
“Company”), promises to pay interest on the principal amount of this Security at the rate
per annum shown above.




          The
Company will pay interest semiannually on May 15 and November 15 of each year commencing [         ]. Interest on the Securities will accrue from the most recent date to which interest has
been paid on the Securities or, if no interest has been paid, from November 12, 2009. The Company
shall pay interest on overdue principal or premium, if any (plus interest on such interest to the
extent lawful), at the rate borne by the Securities to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.




          The Holder of this Note is entitled to the benefits of a Registration Rights Agreement, dated
as of November 12, 2009, among the Company, the Subsidiary Guarantors and the initial purchasers
named therein, subject to the terms and conditions therein.




2. Method of Payment




          By no later than 10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall irrevocably deposit with the Trustee
or a Paying Agent money sufficient to pay such principal, premium, if any, and/or interest
(including additional interest). The Company will pay interest (except Defaulted Interest) to the
Persons who are registered Holders of Securities at the close of business on the May 1 or November
1 next preceding the interest payment date even if Securities are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of Securities represented by a Global Security
(including principal, premium, if any, and interest) will be made by the transfer of immediately
available funds to the account specified by The Depository Trust Company. The Company will make all
payments in respect of a Definitive Security (including principal, premium, if any, and interest)
by mailing a check to the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Securities, by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such other date as the
Trustee may accept in its discretion).




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3. Paying Agent and Registrar




          Initially, The Bank of New York Mellon, will act as Trustee, Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar without notice to any
Securityholder. The Company or any of its Restricted Subsidiaries may act as Paying Agent,
Registrar or co-registrar.




4. Indenture




          The Company issued the Securities under an Indenture dated as of November 12, 2009 (as it may
be amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among the Company, the subsidiaries of the Company from time to time parties
thereto and the Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “Trust Indenture Act”).
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders are referred to the
Indenture and the Trust Indenture Act for a statement of those terms. If and to the extent that any
provision of the Securities limits, qualifies or conflicts with a provision of the Indenture, such
provision of the Indenture shall control.




          The Securities are general unsecured senior obligations of the Company. The aggregate
principal amount of securities that may be authenticated and delivered under the Indenture is
unlimited. This Security is one of the 12% Senior Notes due 2017 referred to in the Indenture.
The Securities include (i) $300,000,000 aggregate principal amount of the Company’s 12% Senior
Notes due 2017 issued under the Indenture on November 12, 2009 (herein called “Initial
Securities”), (ii) if and when issued, additional 12% Senior Notes due 2017 of the Company that
may be issued from time to time under the Indenture subsequent to November 12, 2009 (herein called
“Additional Securities”) and (iii) if and when issued, the Company’s 12% Senior Notes due
2017 that may be issued from time to time under the Indenture in exchange for Initial Securities or
Additional Securities in an offer registered under the Securities Act as provided in the
Registration Rights Agreement. The Initial Securities, Additional Securities and Exchange
Securities are treated as a single series of securities under the Indenture. This Indenture
imposes certain limitations on, among other things, the Incurrence of Indebtedness by the Company
and its Restricted Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and its Restricted Subsidiaries, the purchase or redemption of Capital Stock
of the Company, certain purchases or redemptions of Subordinated Indebtedness, the sale or transfer
of assets and Capital Stock of Restricted Subsidiaries, the issuance or sale of Capital Stock of
Restricted Subsidiaries, the incurrence of certain liens, certain payment guarantees, the
investments of the Company and its Restricted Subsidiaries and transactions with Affiliates. In
addition, the Indenture limits the ability of the Company and its Restricted Subsidiaries to enter
into agreements that restrict distributions and dividends from Restricted Subsidiaries.




          To guarantee the due and punctual payment of the principal, premium, if any, and interest on
the Securities and all other amounts payable by the Company under the Indenture and the Securities
when and as the same shall be due and payable, whether at maturity, by



 A-4  









 






acceleration or otherwise, according to the terms of the Securities and the Indenture, the
Subsidiary Guarantors have unconditionally guaranteed (and future Subsidiary Guarantors, together
with the Subsidiary Guarantors, will unconditionally guarantee), jointly and severally, such
obligations on a senior unsecured basis pursuant to the terms of the Indenture.




5. Redemption




          Except as set forth below, the Securities will not redeemable at the option of the Company
prior to maturity.




          On and after November 15, 2013, the Securities will be redeemable at the Company’s option, in
whole or in part, at any time upon not less than 30 nor more than 60 days prior notice mailed by
first-class mail to each Holder’s registered address, at the following redemption prices (expressed
in percentages of principal amount), plus accrued and unpaid interest to the 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 12-month period commencing on November 15 of the years set forth below:




	 	 	 	 	 
	 	 	Redemption
	Period	 	Price
	2013
	 	 	106.000	%
	2014
	 	 	103.000	%
	2015 and thereafter
	 	 	100.000	%






          Prior to November 15, 2013, the Securities will be redeemable at the Company’s option in whole
or, from time to time, in part, at any time upon not less than 30 nor more than 60 days’ notice, at
a redemption price equal to 100% of the principal amount of the Securities redeemed plus the
Applicable Premium plus accrued and unpaid interest, if any, 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).




          “Applicable Premium” means, with respect to any Security on any applicable redemption date,
the greater of:




          (1) 1.0% of the principal amount of such Security; and




          (2) the excess of:





(a) the present value at such redemption date of (i) the redemption price of
such Security at November 15, 2013 (such redemption price being set forth in
the table appearing above) plus (ii) all required interest payments due on
such Security through November 15, 2013 (excluding any interest accrued



 A-5  









 






to the redemption date) computed using a discount rate equal to the Treasury
Rate as of such redemption date plus 50 basis points; over




(b) the principal amount of such Security.



          “Treasury Rate” means, as of any redemption date, 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) which 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 of similar market data)) most nearly
equal to the period from the redemption date to November 15, 2013; provided that if the period from
the redemption date to November 15, 2013 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 November 15, 2013 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. The Company will (a) calculate the Treasury Rate as of the second Business Day
preceding the applicable redemption date and (b) prior to such redemption date file with the
Trustee an Officers’ Certificate setting forth the Applicable Premium and the Treasury Rate and
showing the calculation of each in reasonable detail.




          In addition, at any time and from time to time prior to November 15, 2012, the Company may
redeem in the aggregate up to 35% of the aggregate principal amount of the Securities with the Net
Cash Proceeds of one or more Public Equity Offerings received by the Company at a redemption price
(expressed as a percentage of principal amount) of 112.000% plus accrued and unpaid interest, if
any, to the 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); provided that at least 65% of the
aggregate principal amount of the Securities must remain outstanding after each such redemption;
provided further, that each such redemption occurs within 180 days of the date of closing of such
Public Equity Offering.




          In the case of any partial redemption, selection of the Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Securities of $2,000 in principal amount or less will be redeemed in
part. If any Security is to be redeemed in part only, the notice of redemption relating to such
Security shall state the portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the redemption date, interest
will cease to accrue on Securities or portions thereof called for redemption as long as the Company
has deposited with the Paying Agent funds in satisfaction of the applicable redemption price
pursuant to the Indenture.




 A-6  









 








          The Payor will be entitled to redeem the Securities, in whole or in part, if 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 such laws, regulations or rulings, 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 Payor is or would be required on the next succeeding interest
payment date to pay Additional Amounts with respect to the Securities, and the payment of such
Additional Amounts cannot be avoided by the use of any reasonable measures available to the Payor.
In the case of the Company, the Change in Tax Law must become effective on or after the date of the
Offering Memorandum. In the case of a Subsidiary Guarantor, or a successor of either the Company
or a Subsidiary Guarantor, the Change in Tax Law must become effective after the date that such
entity first makes payment on the Securities. Further, the Payor must deliver to the Trustee at
least 30 days before the applicable redemption date an Opinion of Counsel of recognized standing to
the effect that the Payor has or will become obligated to pay Additional Amounts as a result of
such Change in Tax Law. The Payor must also provide the Holders with notice of the intended
redemption at least 30 days and no more than 60 days before the redemption date. The redemption
price will equal the principal amount of the Security plus accrued and unpaid interest thereon, if
any to the applicable redemption date and Additional Amounts, if any, then due and which otherwise
would be payable.




6. Repurchase Provisions




          (a) Upon a Change of Control any Holder of Securities will have the right to cause the Company
to repurchase all or any part of the Securities of such Holder at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date) as provided in, and subject to the terms of,
the Indenture.




          (b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to
Section 3.7(b) of the Indenture, the Company will be required to apply such Excess Proceeds
to the repayment of the Securities and any Pari Passu Notes in accordance with the procedures set
forth in Section 3.7 of the Indenture.




7. Denominations; Transfer; Exchange




          The Securities are in registered form without coupons in minimum denominations of principal
amount of $2,000 and integral multiples of $1,000 in excess thereof. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Company may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) for a period beginning 15 days
before the mailing of a notice of Securities to be redeemed and ending on the date of such mailing
or (ii) any Securities for a period beginning 15 days before an interest payment date and ending on
such interest payment date.




 A-7  









 








8. Persons Deemed Owners




          The registered Holder of this Security may be treated as the owner of it for all purposes.




9. Unclaimed Money




          If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.




10. Defeasance




          Subject to certain conditions set forth in the Indenture, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.




11. Amendment, Supplement, Waiver




          Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Securities or
the Subsidiary Guarantees may be amended or supplemented with the written consent of the Holders of
at least a majority in principal amount of the then outstanding Securities and (ii) any default
(other than with respect to nonpayment or in respect of a provision that cannot be amended without
the written consent of each Securityholder affected) or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in principal amount of the then
outstanding Securities. Subject to certain exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company, the Subsidiary Guarantors and the Trustee may amend or
supplement the Indenture, the Securities or the Subsidiary Guarantors to cure any ambiguity, defect
or inconsistency, or to comply with Article IV or Article X of the Indenture, or to
provide for uncertificated Securities in addition to or in place of certificated Securities, or to
add guarantees with respect to the Securities, to release a Subsidiary Guarantor in accordance with
the Indenture or to secure the Securities, or to add additional covenants of the Company and the
Subsidiary Guarantors, or surrender rights and powers conferred on the Company, or to comply with
any request of the SEC in connection with qualifying the Indenture under the Trust Indenture Act,
or to make any change that does not adversely affect the rights of any Securityholder in any
material respect, or to provide for the appointment of a successor trustee, or to conform the text
of the Indenture, the Securities or the Subsidiary Guarantees to any provision of the “Description
of notes” in the Offering Memorandum.




12. Defaults and Remedies




          Under the Indenture, Events of Default include (i) default for 30 days in payment of interest
or additional interest when due on the Securities; (ii) default in payment of principal or premium,
if any, on the Securities at Stated Maturity, upon required repurchase or upon optional redemption
pursuant to paragraphs 5 and 6 of the Securities, upon declaration or



 A-8  









 






otherwise; (iii) the failure by the Company or any Subsidiary Guarantor to comply with its
obligations under Article IV or Section 10.2 of the Indenture; (iv) failure by the
Company to comply for 30 days after written notice with any of its obligations under the covenants
described under Sections 3.2 through 3.15 inclusive of the Indenture (in each case,
other than a failure to purchase Securities when required pursuant to Section 3.7 or
3.9 or Article V, which failure shall constitute an Event of Default under clause
(ii) above and other than a failure to comply with Section 4.1 or Section 10.2,
which failure shall constitute an Event of Default under clause (iii) above); (v) the failure by
the Company to comply for 60 days after written notice with its other agreements contained in the
Indenture or under the Securities (other than those referred to in (i), (ii), (iii) or (iv) above);
(vi) default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), other than Indebtedness owed to the Company or a Restricted Subsidiary,
whether such Indebtedness or guarantee now exists, or is created after the date of the Indenture,
which default (a) is caused by a failure to pay principal of, or interest or premium, if any, on
such Indebtedness prior to the expiration of the grace period provided in such Indebtedness
(“Payment Default”) or (b) results in the acceleration of such Indebtedness prior to its
maturity (the “cross acceleration provision”) 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
$20.0 million or more; (vii) certain events of bankruptcy, insolvency or reorganization of the
Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of
the latest audited consolidated financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary (the “bankruptcy provisions”);
(viii) failure by the Company or any Significant Subsidiary or group of Restricted Subsidiaries
that, taken together (as of the latest audited consolidated financial statements for the Company
and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final judgments
aggregating in excess of $20.0 million (net of any amounts with respect to which a reputable and
creditworthy insurance company has acknowledged liability for in writing), which judgments are not
paid, discharged or stayed for a period of 60 days (the “judgment default provision”), or
(ix) any Subsidiary Guarantee of a Significant Subsidiary or group of Restricted Subsidiaries that
taken together as part of the latest audited consolidated financial statements for the Company and
its Restricted Subsidiaries would constitute a Significant Subsidiary ceases to be in full force
and effect (except as contemplated by the terms of the Indenture) or is declared null and void in a
judicial proceeding or any Subsidiary Guarantor that is a Significant Subsidiary or group of
Subsidiary Guarantors that taken together as part of the latest consolidated financial statements
for the Company and its Restricted Subsidiaries would constitute a Significant Subsidiary denies or
disaffirms its obligations under the Indenture or its Subsidiary Guarantee. However, a default
under clauses (iv) and (v) will not constitute an Event of Default until the Trustee or the Holders
of at least 25% in principal amount of the outstanding Securities notify the Company of the default
and the Company does not cure such default within the time specified in clauses (iv) and (v) hereof
after receipt of such notice.




          If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default which



 A-9  









 






will result in the Securities being due and payable immediately upon the occurrence of such
Events of Default.




          Securityholders may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Securityholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or interest) if it determines that
withholding notice is in their interest.




13. Trustee Dealings with the Company




          Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its affiliates with the same rights it would have if it were not
Trustee.




14. No Recourse Against Others




          An incorporator, director, officer, employee, partner, member, manager, stockholder, as such,
of each of the Company, or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities, the Indenture or any Subsidiary Guarantees or for
any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Security, each Securityholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.




15. Authentication




          This Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent acting on its behalf) manually signs the certificate of authentication on the
other side of this Security.




16. Abbreviations




          Customary abbreviations may be used in the name of a Securityholder or an assignee, such as
TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with
rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform
Gift to Minors Act).




17. CUSIP and ISIN Numbers




          The Company has caused CUSIP and ISIN numbers, if applicable, to be printed on the Securities
and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption
or purchase as a convenience to Securityholders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in



 A-10  









 






any notice of redemption or purchase and reliance may be placed only on the other
identification numbers placed thereon.




18. Governing Law




          This Security shall be governed by, and construed in accordance with, the laws of the State of
New York.




          The Company will furnish to any Securityholder upon written request and without charge to the
Securityholder a copy of the Indenture, which has in it the text of this Security in larger type.
Requests may be made to:




General Maritime Corporation

35 West 56th Street

New York, New York 10019

Attention: Secretary




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ASSIGNMENT FORM




          To assign this Security, fill in the form below:




          I or we assign and transfer this Security to





	 	 	 	 	 
	 

	 	 

(Print or type assignee’s name, address and zip code)
	 	 






	 	 	 	 	 
	 
	 	 

(Insert assignee’s soc. sec. or tax I.D. No.)
	 	 







and irrevocably appoint                      agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.



 




			
	 	 	 
	Date:                                        
	 	Your Signature:                                        






	 	 	 
	Signature Guarantee:

	 	 
	 

	 	 
	 

	 	(Signature must be guaranteed)
	 
	 	 
	 
	Sign exactly as your name appears on the other side of this Security.





The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.




     In connection with any transfer or exchange of any of the Securities evidenced by this
certificate occurring prior to the date that is two years after the later of the date of original
issuance of such Securities and the last date, if any, on which such Securities were owned by the
Company or any Affiliate of the Company, the undersigned confirms that such Securities are being:



CHECK ONE BOX BELOW:




	 	 	 	 	 
	 

	 	1o
	 	acquired for the undersigned’s own account, without transfer; or
	 
	 	 	 	 
	 

	 	2o
	 	transferred to the Company; or
	 
	 	 	 	 
	 

	 	3o
	 	transferred pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended (the “Securities Act”); or
	 
	 	 	 	 
	 

	 	4o
	 	transferred pursuant to an effective registration statement under the Securities
Act; or
	 
	 	 	 	 
	 

	 	5o
	 	transferred pursuant to and in compliance with Regulation S under the Securities
Act; or






 A-12  









 






	 	 	 	 	 
	 

	 	6o
	 	transferred to an institutional “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act), that has furnished to the Trustee
a signed letter containing certain representations and agreements (the form of which
letter appears as Section 2.7 of the Indenture); or
	 
	 	 	 	 
	 

	 	7o
	 	transferred pursuant to another available exemption from the registration
requirements of the Securities Act of 1933.





Unless one of the boxes is checked, the Trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any person other than the registered Holder thereof;
provided, however, that if box (5), (6) or (7) is checked, the Trustee or the Company may require,
prior to registering any such transfer of the Securities, in their sole discretion, such legal
opinions, certifications and other information as the Trustee or the Company may reasonably request
to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act.




	 	 	 	 	 	 	 
	 

	 	 	 	 

Signature
	 	 
	 
	 	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

(Signature must be guaranteed)

	 	 
	 	 

Signature
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 




The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.



TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.




     The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided by Rule 144A.



	 	 	 
	 

Dated:

	 	 






 A-13  









 






[TO BE ATTACHED TO GLOBAL SECURITIES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY




          The following increases or decreases in this Global Security have been made:




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Principal Amount of this Global
	 	Signature of authorized
	Date of

	 	Amount of decrease in Principal
	 	Amount of increase in Principal
	 	Security following such
	 	signatory of Trustee or
	Exchange

	 	Amount of this Global Security
	 	Amount of this Global Security
	 	decrease or increase
	 	Securities Custodian
	 

	 	 
	 	 
	 	 
	 	 






 A-14  











 





OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Security purchased by the Company pursuant to Section
3.7 or 3.9 of the Indenture, check either box:




o          o

3.7          3.9




          If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 3.7 or 3.9 of the Indenture, state the amount in principal amount (must be
integral multiple of $1,000; provided that no Securities of $2,000 in principal amount or less may
be purchased in part): $                    




	 	 	 	 	 	 	 
	Date:

	 	 	 	Your Signature	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	     (Sign exactly as your name appears on the other side of the Security)






	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 
	 

	 	                    (Signature must be guaranteed)





The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.




A-15









 





SUBSIDIARY GUARANTEE




          Pursuant to the Indenture (the “Indenture”) dated as of November 12, 2009 among
General Maritime Corporation, the subsidiaries of the Company party thereto (each a “Subsidiary
Guarantor” and collectively the “Subsidiary Guarantors”) and The Bank of New York
Mellon, as trustee (the “Trustee”), each Subsidiary Guarantor, subject to the provisions of
Article X of the Indenture, hereby fully, unconditionally and irrevocably guarantees, as
primary obligor and not merely as surety, jointly and severally with each other Subsidiary
Guarantor, to each Holder of the Securities and the Trustee (to the extent permitted by law) the
full and punctual payment when due, whether at maturity, by acceleration, by redemption or
otherwise, of the principal of, premium, if any, and interest on the Securities and all other
monetary obligations of the Company under the Indenture and the Registration Rights Agreement (all
the foregoing being hereinafter collectively called the “Obligations”). Each Subsidiary
Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or
renewed, in whole or in part, without notice or further assent from it, and that it will remain
bound under Article X of the Indenture notwithstanding any extension or renewal of any
Obligation.




          Each Subsidiary Guarantor waives (to the extent permitted by law) presentation to, demand of
payment from and protest to the Company of any of the Obligations and also waives (to the extent
permitted by law) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the
extent permitted by law)notice of any default under the Securities or the Obligations.




          Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require
that any resort be had by any Holder to any security held for payment of the Obligations.




          Except as expressly set forth in Section 4.2, Section 10.2 and Article
VIII of the Indenture, the obligations of each Subsidiary Guarantor hereunder shall not (to the
extent permitted by law) be subject to any reduction, limitation, impairment or termination for any
reason (other than payment of the Obligations in full), including any claim of waiver, release,
surrender, alteration or compromise, and shall not (to the extent permitted by law) be subject to
any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not (to the
extent permitted by law) be discharged or impaired or otherwise affected by the failure of any
Holder to assert any claim or demand or to enforce any remedy under the Indenture, the Securities
or any other agreement, by any waiver or modification of any thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or
omission or delay to do any other act or thing which may or might in any manner or to any extent
vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.




          Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or any




A-1









 







part thereof, of principal of or interest on any of the Obligations is rescinded or must
otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or
otherwise.




          In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the
Company to pay any of the Obligations when and as the same shall become due, whether at maturity,
by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing
and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law).




          Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the
one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in the Indenture for the purposes of its Subsidiary Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of
acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantor for the purposes of the Subsidiary Guarantee.




          Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any
rights under this Subsidiary Guarantee.




          This Subsidiary Guarantee shall be effective in accordance with the provisions of the
Indenture and its terms shall be evidenced therein. All terms used in this Subsidiary Guarantee
that are defined in the Indenture shall have the meanings assigned to them therein.




          This Subsidiary Guarantee shall be governed by, and construed in accordance with, the law of
the State of New York.




	 	 	 	 	 
	 	GENERAL MARITIME SUBSIDIARY CORPORATION

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME MANAGEMENT LLC

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-2









 






	 	 	 	 	 
	 	GENERAL MARITIME MANAGEMENT (PORTUGAL) LDA.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME MANAGEMENT (PORTUGAL) LIMITADA

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME CREWING PTE LTD. (SINGAPORE
CORPORATION)

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME CREWING LTD.
 (RUSSIA CORPORATION)

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GMR AGAMEMNON LLC

GMR AJAX LLC

GMR ALEXANDRA LLC

GMR ARGUS LLC

GMR CHARTERING LLC

GMR CONSTANTINE LLC

GMR DAPHNE LLC

GMR DEFIANCE LLC

GMR ELEKTRA LLC

GMR GEORGE T LLC






A-3









 






	 	 	 	 	 
	 	

GMR GULF LLC

GMR HARRIET G. LLC

GMR HOPE LLC

GMR HORN LLC

GMR KARA G LLC

GMR MINOTAUR LLC

GMR ORION LLC

GMR PHOENIX LLC

GMR PRINCESS LLC

GMR PROGRESS LLC

GMR REVENGE LLC

GMR ST. NIKOLAS LLC

GMR SPYRIDON LLC

GMR STRENGTH LLC

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ARLINGTON TANKERS LTD.

VISION LTD.

VICTORY LTD.

COMPANION LTD.

COMPATRIOT LTD.

CONCORD LTD.

CONSUL LTD.

CONCEPT LTD.

CONTEST LTD.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-4









 





EXHIBIT B




[FORM OF FACE OF REGISTERED NOTE]




[Depository Legend, if applicable]

[OID Legend, if applicable]




			
	 	 	 
	No. [___]
	 	Principal Amount $[                                        ]

CUSIP NO.                     






GENERAL MARITIME CORPORATION




12% Senior Notes due 2017




          General Maritime Corporation, a Marshall Islands corporation, promises to pay to [                    ],
or registered assigns, the principal sum of [                                        ] Dollars, on November [12], 2017.




          Interest Payment Dates: May 15 and November 15 of each year, commencing on [          ].




          Record Dates: May 1 and November 1 of each year, immediately preceding the
applicable interest payment date.




          Additional provisions of this Security are set forth on the other side of this Security.




B-1









 








	 	 	 	 	 
	 	GENERAL MARITIME CORPORATION

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 



TRUSTEE’S CERTIFICATE OF

     AUTHENTICATION




THE BANK OF NEW YORK MELLON




as Trustee, certifies

that this is one of

the Securities referred

to in the Indenture.




	 	 	 	 	 	 	 
	By
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Authorized Signatory
	 	 	 	Date:






B-2









 





[FORM OF REVERSE SIDE OF REGISTERED NOTE]




12% Senior Notes due 2017




1. Interest




          General Maritime Corporation, a Marshall Islands corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein called the
“Company”), promises to pay interest on the principal amount of this Security at the rate
per annum shown above.




          The Company will pay interest semiannually on May 15 and November 15 of each year commencing [          ]. Interest on the Securities will accrue from the most recent date to which interest
has been paid on the Securities or, if no interest has been paid, from November 12, 2009. The
Company shall pay interest on overdue principal or premium, if any (plus interest on such interest
to the extent lawful), at the rate borne by the Securities 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




          By no later than 10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall irrevocably deposit with the Trustee
or a Paying Agent money sufficient to pay such principal, premium, if any, and/or interest. The
Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of
Securities at the close of business on the May 1 or November 1 next preceding the interest payment
date even if Securities are cancelled, repurchased or redeemed after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts. Payments in respect
of Securities represented by a Global Security (including principal, premium, if any, and interest)
will be made by the transfer of immediately available funds to the account specified by The
Depository Trust Company. The Company will make all payments in respect of a Definitive Security
(including principal, premium, if any, and interest) by mailing a check to the registered address
of each Holder thereof; provided, however, that payments on the Securities may also be made, in the
case of a Holder of at least $1,000,000 aggregate principal amount of Securities, by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 15 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).




3. Paying Agent and Registrar




          Initially, The Bank of New York Mellon will act as Trustee, Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar without notice to any
Securityholder. The Company or any of its Restricted Subsidiaries may act as Paying Agent,
Registrar or co-registrar.




B-3









 








4. Indenture




          The Company issued the Securities under an Indenture dated as of November 12, 2009 (as it may
be amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among the Company, the subsidiaries of the Company from time to time parties
thereto and the Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “Trust Indenture Act”).
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders are referred to the
Indenture and the Trust Indenture Act for a statement of those terms. If and to the extent that any
provision of the Securities limits, qualifies or conflicts with a provision of the Indenture, such
provision of the Indenture shall control.




          The Securities are general unsecured senior obligations of the Company. The aggregate
principal amount of securities that may be authenticated and delivered under the Indenture is
unlimited. This Security is one of the 12% Senior Notes due 2017 referred to in the Indenture.
The Securities include (i) $300,000,000 aggregate principal amount of the Company’s 12% Senior
Notes due 2017 issued under the Indenture on November 12, 2009 (herein called “Initial
Securities”), (ii) if and when issued, additional 12% Senior Notes due 2017 of the Company that
may be issued from time to time under the Indenture subsequent to November 12, 2009 (herein called
“Additional Securities”) and (iii) if and when issued, the Company’s 12% Senior Notes due
2017 that may be issued from time to time under the Indenture in exchange for Initial Securities or
Additional Securities in an offer registered under the Securities Act as provided in the
Registration Rights Agreement. The Initial Securities, Additional Securities and Exchange
Securities are treated as a single series of securities under the Indenture. This Indenture
imposes certain limitations on, among other things, the Incurrence of Indebtedness by the Company
and its Restricted Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and its Restricted Subsidiaries, the purchase or redemption of Capital Stock
of the Company, certain purchases or redemptions of Subordinated Indebtedness, the sale or transfer
of assets and Capital Stock of Restricted Subsidiaries, the issuance or sale of Capital Stock of
Restricted Subsidiaries, the incurrence of certain liens, certain payment guarantees, the
investments of the Company and its Restricted Subsidiaries and transactions with Affiliates. In
addition, the Indenture limits the ability of the Company and its Restricted Subsidiaries to enter
into agreements that restrict distributions and dividends from Restricted Subsidiaries.




          To guarantee the due and punctual payment of the principal, premium, if any, and interest on
the Securities and all other amounts payable by the Company under the Indenture and the Securities
when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future Subsidiary Guarantors, together with the Subsidiary
Guarantors, will unconditionally guarantee), jointly and severally, such obligations on a senior
unsecured basis pursuant to the terms of the Indenture.




B-4









 








5. Redemption




          Except as set forth below, the Securities will not redeemable at the option of the Company
prior to maturity.




          On and after November 15, 2013, the Securities will be redeemable at the Company’s option, in
whole or in part, at any time upon not less than 30 nor more than 60 days prior notice mailed by
first-class mail to each Holder’s registered address, at the following redemption prices (expressed
in percentages of principal amount), plus accrued and unpaid interest to the 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 12-month period commencing on November 15 of the years set forth below:




	 	 	 	 	 
	 	 	Redemption
	Period	 	Price
	2013
	 	 	106.000	%
	2014
	 	 	103.000	%
	2015 and thereafter
	 	 	100.000	%






          Prior to November 15, 2013, the Securities will be redeemable at the Company’s option in whole
or, from time to time, in part, at any time upon not less than 30 nor more than 60 days’ notice, at
a redemption price equal to 100% of the principal amount of the Securities redeemed plus the
Applicable Premium plus accrued and unpaid interest, if any, 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).




          “Applicable Premium” means, with respect to any Security on any applicable redemption date,
the greater of:




          (1) 1.0% of the principal amount of such Security; and




          (2) the excess of:





(a) the present value at such redemption date of (i) the redemption price of
such Security at November 15, 2013 (such redemption price being set forth in
the table appearing above) plus (ii) all required interest payments due on
such Security through November 15, 2013 (excluding any interest accrued to the
redemption date) computed using a discount rate equal to the Treasury Rate as
of such redemption date plus 50 basis points; over




(b) the principal amount of such Security.



B-5









 





          “Treasury Rate” means, as of any redemption date, 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) which 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 of similar market data)) most nearly
equal to the period from the redemption date to November 15, 2013; provided that if the period from
the redemption date to November 15, 2013 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 November 15, 2013 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. The Company will (a) calculate the Treasury Rate as of the second Business Day
preceding the applicable redemption date and (b) prior to such redemption date file with the
Trustee an Officers’ Certificate setting forth the Applicable Premium and the Treasury Rate and
showing the calculation of each in reasonable detail.




          In addition, at any time and from time to time prior to November 15, 2012, the Company may
redeem in the aggregate up to 35% of the aggregate principal amount of the Securities with the Net
Cash Proceeds of one or more Public Equity Offerings received by the Company at a redemption price
(expressed as a percentage of principal amount) of 112.000% plus accrued and unpaid interest, if
any, to the 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); provided that at least 65% of the
aggregate principal amount of the Securities must remain outstanding after each such redemption;
provided further, that each such redemption occurs within 180 days of the date of closing of such
Public Equity Offering.




          In the case of any partial redemption, selection of the Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Securities of $2,000 in principal amount or less will be redeemed in
part. If any Security is to be redeemed in part only, the notice of redemption relating to such
Security shall state the portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the redemption date, interest
will cease to accrue on Securities or portions thereof called for redemption as long as the Company
has deposited with the Paying Agent funds in satisfaction of the applicable redemption price
pursuant to the Indenture.




          The Payor will be entitled to redeem the Securities, in whole or in part, if 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 such laws, regulations or rulings, 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 Payor is or would be required on the next succeeding interest
payment date to pay Additional Amounts with respect to the Securities, and the payment





B-6











 




of such Additional Amounts cannot be avoided by the use of any reasonable measures available
to the Payor. In the case of the Company, the Change in Tax Law must become effective on or after
the date of the Offering Memorandum. In the case of a Subsidiary Guarantor, or a successor of
either the Company or a Subsidiary Guarantor, the Change in Tax Law must become effective after the
date that such entity first makes payment on the Securities. Further, the Payor must deliver to
the Trustee at least 30 days before the applicable redemption date an Opinion of Counsel of
recognized standing to the effect that the Payor has or will become obligated to pay Additional
Amounts as a result of such Change in Tax Law. The Payor must also provide the Holders with notice
of the intended redemption at least 30 days and no more than 60 days before the redemption date.
The redemption price will equal the principal amount of the Security plus accrued and unpaid
interest thereon, if any to the applicable redemption date and Additional Amounts, if any, then due
and which otherwise would be payable.




6.   Repurchase Provisions




          (a) Upon a Change of Control any Holder of Securities will have the right to cause the Company
to repurchase all or any part of the Securities of such Holder at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date) as provided in, and subject to the terms of,
the Indenture.




          (b) In the event of an Asset Disposition that requires the purchase of Securities pursuant to
Section 3.7(b) of the Indenture, the Company will be required to apply such Excess Proceeds
to the repayment of the Securities and any Pari Passu Notes in accordance with the procedures set
forth in Section 3.7 of the Indenture.




7.   Denominations; Transfer; Exchange




          The Securities are in registered form without coupons in denominations of principal amount of
$2,000 and integral multiples of $1,000 in excess thereof. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Company may require a Holder, among other things,
to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Company need not register the transfer of or exchange (i)
any Securities selected for redemption (except, in the case of a Security to be redeemed in part,
the portion of the Security not to be redeemed) for a period beginning 15 days before the mailing
of a notice of Securities to be redeemed and ending on the date of such mailing or (ii) any
Securities for a period beginning 15 days before an interest payment date and ending on such
interest payment date.




8.   Persons Deemed Owners




          The registered Holder of this Security may be treated as the owner of it for all purposes.




B-7









 








9.   Unclaimed Money




          If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.




10.   Defeasance




          Subject to certain conditions set forth in the Indenture, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.




11.   Amendment, Supplement, Waiver




          Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities
may be amended or supplemented with the written consent of the Holders of at least a majority in
principal amount of the then outstanding Securities and (ii) any default (other than with respect
to nonpayment or in respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the then outstanding Securities.
Subject to certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend or supplement the Indenture or the Securities
to cure any ambiguity, defect or inconsistency, or to comply with Article IV or Article
X of the Indenture, or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities, to release a
Subsidiary Guarantor in accordance with the Indenture or to secure the Securities, or to add
additional covenants of the Company and the Subsidiary Guarantors, or surrender rights and powers
conferred on the Company, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Trust Indenture Act, or to make any change that does not adversely affect
the rights of any Securityholder in any material respect, or to provide for the appointment of a
successor trustee, or to conform the text of the Indenture, the Securities or the Subsidiary
Guarantees to any provision of the “Description of notes” in the Offering Memorandum.




12.   Defaults and Remedies




          Under the Indenture, Events of Default include (i) default for 30 days in payment of interest
or additional interest when due on the Securities; (ii) default in payment of principal or premium,
if any, on the Securities at Stated Maturity, upon required repurchase or upon optional redemption
pursuant to paragraphs 5 and 6 of the Securities, upon declaration or otherwise; (iii) the failure
by the Company or any Subsidiary Guarantor to comply with its obligations under Article IV
or Section 10.2 of the Indenture; (iv) failure by the Company to comply for 30 days after
written notice with any of its obligations under the covenants described under Sections 3.2
through 3.15 inclusive of the Indenture (in each case, other than a failure to purchase
Securities when required pursuant to Section 3.7 or 3.9 or Article V, which
failure shall




B-8









 







constitute an Event of Default under clause (ii) above and other than a failure to comply with
Section 4.1 or Section 10.2, which failure shall constitute an Event of Default
under clause (iii) above); (v) the failure by the Company to comply for 60 days after written
notice with its other agreements contained in the Indenture or under the Securities (other than
those referred to in (i), (ii), (iii) or (iv) above); (vi) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), other than
Indebtedness owed to the Company or a Restricted Subsidiary, whether such Indebtedness or guarantee
now exists, or is created after the date of the Indenture, which default (a) is caused by a failure
to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration
of the grace period provided in such Indebtedness (“Payment Default”) or (b) results in the
acceleration of such Indebtedness prior to its maturity (the “cross acceleration
provision”) 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 $20.0 million or more; (vii) certain events
of bankruptcy, insolvency or reorganization of the Company or a Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial
statements for the Company and its Restricted Subsidiaries), would constitute a Significant
Subsidiary (the “bankruptcy provisions”); (viii) failure by the Company or any Significant
Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Company and its Restricted Subsidiaries), would
constitute a Significant Subsidiary to pay final judgments aggregating in excess of $20.0 million
(net of any amounts with respect to which a reputable and creditworthy insurance company has
acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a
period of 60 days (the “judgment default provision”), or (ix) any Subsidiary Guarantee of a
Significant Subsidiary or group of Restricted Subsidiaries that taken together as part of the
latest audited consolidated financial statements for the Company and its Restricted Subsidiaries
would constitute a Significant Subsidiary ceases to be in full force and effect (except as
contemplated by the terms of the Indenture) or is declared null and void in a judicial proceeding
or any Subsidiary Guarantor that is a Significant Subsidiary or group of Subsidiary Guarantors that
taken together as part of the latest consolidated financial statements for the Company and its
Restricted Subsidiaries would constitute a Significant Subsidiary denies or disaffirms its
obligations under the Indenture or its Subsidiary Guarantee. However, a default under clauses (iv)
and (v) will not constitute an Event of Default until the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities notify the Company of the default and the Company
does not cure such default within the time specified in clauses (iv) and (v) hereof after receipt
of such notice.




          If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in
the Securities being due and payable immediately upon the occurrence of such Events of Default.




          Securityholders may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities





B-9









 







unless it receives indemnity or security satisfactory to it. Subject to certain limitations,
Holders of a majority in principal amount of the Securities may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.




13.   Trustee Dealings with the Company




          Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its affiliates with the same rights it would have if it were not
Trustee.




14.   No Recourse Against Others




          An incorporator, director, officer, employee, partner, member, manager, stockholder, as such,
of each of the Company, or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities, the Indenture or any Subsidiary Guarantees or for
any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Security, each Securityholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.




15.   Authentication




          This Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent acting on its behalf) manually signs the certificate of authentication on the
other side of this Security.




16.   Abbreviations




          Customary abbreviations may be used in the name of a Securityholder or an assignee, such as
TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with
rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).




17.   CUSIP and ISIN Numbers




          The Company has caused CUSIP and ISIN numbers, if applicable, to be printed on the Securities
and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption
or purchase as a convenience to Securityholders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in any notice of redemption or
purchase and reliance may be placed only on the other identification numbers placed thereon.




B-10









 








18.   Governing Law




          This Security shall be governed by, and construed in accordance with, the laws of the State of
New York.




          The Company will furnish to any Securityholder upon written request and without charge to the
Securityholder a copy of the Indenture, which has in it the text of this Security in larger type.
Requests may be made to:




General Maritime Corporation

35 West 56th Street

New York, New York 10019

Attention: Secretary




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ASSIGNMENT FORM



To assign this Security, fill in the form below:



I or we assign and transfer this Security to




     (Print or type assignee’s name, address and zip code)     





     (Insert assignee’s soc. sec. or tax I.D. No.)     




and irrevocably appoint                                          agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.




 





Date:                                              Your Signature   
             
                                                   
                           



Signature Guarantee:                                           
                
                           
               
                                      



(Signature must be guaranteed)



 




Sign exactly as your name appears on the other side of this Security.



The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.




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[TO BE ATTACHED TO GLOBAL SECURITIES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY




      The following increases or decreases in this Global Security have been made:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount of this Global	 	Signature of authorized
	Date of	 	Amount of decrease in Principal	 	Amount of increase in Principal	 	Security following such	 	signatory of Trustee or
	Exchange	 	Amount of this Global Security	 	Amount of this Global Security	 	decrease or increase	 	Securities Custodian
	 

	 	 
	 	 
	 	 
	 	 






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OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Security purchased by the Company pursuant to Section
3.7 or 3.9 of the Indenture, check either box:




o     o

3.7     3.9




          If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 3.7 or 3.9 of the Indenture, state the amount in principal amount (must be
integral multiple of $1,000; provided that no Securities of $2,000 in principal amount or less may
be purchased in part): $                    




Date:                      Your Signature:                        
                                             
                                                       



(Sign exactly as your name appears on the other side of the Security)




Signature Guarantee:                                                            
                                                               
                       


(Signature must be guaranteed)



The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.





B-3











 





SUBSIDIARY GUARANTEE




     Pursuant to the Indenture (the “Indenture”) dated as of November 12, 2009 among
General Maritime Corporation, the subsidiaries of the Company party thereto (each a “Subsidiary
Guarantor” and collectively the “Subsidiary Guarantors”) and The Bank of New York
Mellon, as trustee (the “Trustee”), each Subsidiary Guarantor, subject to the provisions of
Article X of the Indenture, hereby fully, unconditionally and irrevocably guarantees, as
primary obligor and not merely as surety, jointly and severally with each other Subsidiary
Guarantor, to each Holder of the Securities and the Trustee (to the extent permitted by law) the
full and punctual payment when due, whether at maturity, by acceleration, by redemption or
otherwise, of the principal of, premium, if any, and interest on the Securities and all other
monetary obligations of the Company under the Indenture and the Registration Rights Agreement (all
the foregoing being hereinafter collectively called the “Obligations”). Each Subsidiary
Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or
renewed, in whole or in part, without notice or further assent from it, and that it will remain
bound under Article X of the Indenture notwithstanding any extension or renewal of any
Obligation.



     Each Subsidiary Guarantor waives (to the extent permitted by law) presentation to, demand of
payment from and protest to the Company of any of the Obligations and also waives (to the extent
permitted by law) notice of protest for nonpayment. Each Subsidiary Guarantor waives (to the
extent permitted by law) notice of any default under the Securities or the Obligations.



     Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require
that any resort be had by any Holder to any security held for payment of the Obligations.



     Except as expressly set forth in Section 4.2, Section 10.2 and Article
VIII of the Indenture, the obligations of each Subsidiary Guarantor hereunder shall not (to the
extent permitted by law) be subject to any reduction, limitation, impairment or termination for any
reason (other than payment of the Obligations in full), including any claim of waiver, release,
surrender, alteration or compromise, and shall not (to the extent permitted by law) be subject to
any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not (to the
extent permitted by law) be discharged or impaired or otherwise affected by the failure of any
Holder to assert any claim or demand or to enforce any remedy under the Indenture, the Securities
or any other agreement, by any waiver or modification of any thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or
omission or delay to do any other act or thing which may or might in any manner or to any extent
vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.



     Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or any



B-4









 







part thereof, of principal of or interest on any of the Obligations is rescinded or must
otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or
otherwise.



     In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the
Company to pay any of the Obligations when and as the same shall become due, whether at maturity,
by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing
and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law).



     Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the
one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in the Indenture for the purposes of its Subsidiary Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of
acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantor for the purposes of the Subsidiary Guarantee.



     Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any
rights under this Subsidiary Guarantee.



     This Subsidiary Guarantee shall be effective in accordance with the provisions of the
Indenture and its terms shall be evidenced therein. All terms used in this Subsidiary Guarantee
that are defined in the Indenture shall have the meanings assigned to them therein.



     This Subsidiary Guarantee shall be governed by, and construed in accordance with, the law of
the State of New York.



	 	 	 	 	 
	 	GENERAL MARITIME SUBSIDIARY CORPORATION

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME MANAGEMENT LLC

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




B-5









 





	 	 	 	 	 
	 	GENERAL MARITIME MANAGEMENT (PORTUGAL) LDA.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME MANAGEMENT (PORTUGAL) LIMITADA

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME CREWING PTE LTD.

 (SINGAPORE CORPORATION)

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL MARITIME CREWING LTD. 

(RUSSIA CORPORATION)

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 GMR AGAMEMNON LLC

 GMR AJAX LLC

 GMR ALEXANDRA LLC

GMR ARGUS LLC

 GMR CHARTERING LLC

 GMR CONSTANTINE LLC

 GMR DAPHNE LLC

 GMR DEFIANCE LLC

 GMR ELEKTRA LLC

 GMR GEORGE T LLC

 GMR GULF LLC

 GMR HARRIET G. LLC




B-6









 





 GMR HOPE LLC

 GMR HORN LLC

 GMR KARA G LLC

 GMR MINOTAUR LLC

 GMR ORION LLC

 GMR PHOENIX LLC

 GMR PRINCESS LLC

 GMR PROGRESS LLC

 GMR REVENGE LLC

 GMR ST. NIKOLAS LLC

 GMR SPYRIDON LLC

 GMR STRENGTH LLC



	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 ARLINGTON TANKERS LTD.

 VISION LTD.

 VICTORY LTD.

 COMPANION LTD.

 COMPATRIOT LTD.

 CONCORD LTD.

 CONSUL LTD.

 CONCEPT LTD.

 CONTEST LTD.




	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




B-7









 





EXHIBIT C




FORM OF SUPPLEMENTAL INDENTURE FOR FUTURE SUBSIDIARY GUARANTORS




     This Supplemental Indenture, dated as of           (this “Supplemental
Indenture” or “Guarantee”), among [name of future Subsidiary Guarantor] (the
“Guarantor”), General Maritime Corporation (together with its successors and assigns, the
“Company”), each other then existing Subsidiary Guarantor under the Indenture referred to
below, and The Bank of New York Mellon, as Trustee under the Indenture referred to below.



W I T N E S S E T H:




     WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have heretofore executed and
delivered an Indenture, dated as of November 12, 2009 (as amended, supplemented, waived or
otherwise modified, the “Indenture”), providing for the issuance of 12% Senior Notes due
2017 (the “Securities”);



     WHEREAS, Section 3.11 of the Indenture provides that the Company is required to cause
certain of its Restricted Subsidiaries to execute and deliver to the Trustee Subsidiary Guarantees
pursuant to which such Restricted Subsidiaries will unconditionally Guarantee, on a joint and
several basis with the other Subsidiary Guarantors, the full and prompt payment of the principal
of, premium, if any, and interest on the Securities on a senior basis and will perform and observe
the covenants to be performed and observed by the Company the under the Indenture; and



     WHEREAS, pursuant to Section 9.1 of the Indenture, the Company, the existing
Subsidiary Guarantors and the Trustee are authorized to execute and deliver this Supplemental
Indenture to amend the Indenture for the purposes hereinafter provided, without the consent of any
Securityholder;



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor, the Company, the
existing Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Securities as follows:



C-1









 





ARTICLE I




Definitions




     SECTION 1.1 Defined Terms. As used in this Subsidiary Guarantee, terms defined in
the Indenture or in the preamble or recital hereto are used herein as therein defined. The words
“herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.



ARTICLE II




Agreement to be Bound; Guarantee




     SECTION 2.1 Agreement to be Bound. The Guarantor hereby becomes a party to the
Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to all
of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The Guarantor
agrees to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor
and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture
and the Securities subject to the terms and conditions contained therein.



     SECTION 2.2 Guarantee. The Guarantor hereby fully, unconditionally and irrevocably
guarantees, as primary obligor and not merely as surety, jointly and severally with each other
Subsidiary Guarantor, to each Holder of the Securities and the Trustee, the full and punctual
payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the
Obligations pursuant to Article X of the Indenture on a senior basis subject to the terms
and conditions contained therein.



ARTICLE III




Miscellaneous




     SECTION 3.1 Notices. All notices and other communications to the Guarantor shall be
given as provided in the Indenture to the Guarantor, at its address set forth below, with a copy to
the Company as provided in the Indenture for notices to the Company.



     SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended or shall be
construed to give any Person, other than the Holders and the Trustee, any legal or equitable right,
remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.



     SECTION 3.3 Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.



     SECTION 3.4 Severability Clause. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the



C-2









 







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.



     SECTION 3.5 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
Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee
makes no representation or warranty as to the validity or sufficiency of this Supplemental
Indenture. The recitals and statements herein are deemed to be those of the Company, the Guarantor
and the Subsidiary Guarantors, and not those of the Trustee, and the Trustee assumes no
responsibility for their correctness.



     SECTION 3.6 Counterparts. The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute one and the same
agreement.



     SECTION 3.7 Headings. The headings of the Articles and the sections in this
Guarantee are for convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.



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



	 	 	 	 	 
	 	[GUARANTOR],

as a Subsidiary Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 

	 	Address:	 	                                        
	 
	 	 	 	 
	 

	 	 	 	                                        
	 
	 	 	 	 
	 

	 	 	 	                                        






	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




C-3









 





	 	 	 	 	 
	 	GENERAL MARITIME CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[EXISTING SUBSIDIARY GUARANTORS]

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




C-4