exv4w4






EXHIBIT
4.4






 

 






SHIP
FINANCE INTERNATIONAL LIMITED




as Issuer



AND



WILMINGTON
TRUST FSB



as Trustee



FORM
OF INDENTURE



Dated as of [          ]



[          ]



[     ]% Senior Notes Due [     ]



 

 








 









 














SHIP
FINANCE INTERNATIONAL LIMITED




Reconciliation and tie between Sections 310 through 318, inclusive, of the

Trust Indenture Act of 1939 and this Indenture



	 	 	 
	Trust	 	 
	Indenture Act	 	 
	Sections	 	Indenture Section
	ss.310(a)(1)

	 	      6.09
	(a)(2)

	 	      6.09
	(a)(3)

	 	Not Applicable
	(a)(4)

	 	Not Applicable
	(b)

	 	      6.08, 6.10
	ss.311 (a)

	 	      6.13
	(b)

	 	      6.13
	ss.312 (a)

	 	      7.01, 7.02
	(b)

	 	      7.02
	(c)

	 	      7.02
	ss.313 (a)

	 	      7.03
	(b)

	 	      7.03
	(c)

	 	      7.03
	(d)

	 	      7.03
	ss.314 (a)

	 	      7.04
	(a)(4)

	 	      10.11
	(b)

	 	Not Applicable
	(c)(1)

	 	      1.03
	(c)(2)

	 	      1.03
	(c)(3)

	 	Not Applicable
	(d)

	 	Not Applicable
	(e)

	 	      1.03
	ss.315 (a)

	 	      6.01
	(b)

	 	      6.02
	(c)

	 	      6.01, 6.03
	(d)

	 	      6.01
	(d)(1)

	 	      6.01
	(e)

	 	      5.14
	ss.316 (a)

	 	      5.02, 5.12, 5.13
	(a)(l)(A)

	 	      5.02, 5.12
	(a)(l)(B)

	 	      5.13
	(a)(2)

	 	Not Applicable
	(b)

	 	      5.08
	ss.317 (a)(1)

	 	      5.03
	(a)(2)

	 	      5.04
	(b)

	 	      10.04
	ss.318 (a)

	 	      1.08








 




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




i









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01 Definitions
	 	 	1	 
	SECTION 1.02 Rules of Construction
	 	 	14	 
	SECTION 1.03 Compliance Certificates and Opinions
	 	 	15	 
	SECTION 1.04 Form of Documents Delivered to Trustee
	 	 	15	 
	SECTION 1.05 Acts of Holders; Record Dates
	 	 	16	 
	SECTION 1.06 Notices, Etc., to Trustee and Company
	 	 	19	 
	SECTION 1.07 Notice to Holders; Waiver
	 	 	20	 
	SECTION 1.08 Conflict with Trust Indenture Act
	 	 	20	 
	SECTION 1.09 Effect of Headings and Table of Contents
	 	 	20	 
	SECTION 1.10 Successors and Assigns
	 	 	20	 
	SECTION 1.11 Separability Clause
	 	 	20	 
	SECTION 1.12 Benefits of Indenture
	 	 	20	 
	SECTION 1.13 Governing Law
	 	 	20	 
	SECTION 1.14 Legal Holidays
	 	 	21	 
	SECTION 1.15 Consent to Service; Jurisdiction
	 	 	21	 
	SECTION 1.16 Waiver of Jury Trial
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II FORMS OF SECURITY
	 	 	21	 
	 
	 	 	 	 
	SECTION 2.01 Forms Generally
	 	 	21	 
	 
	 	 	 	 
	ARTICLE III THE SECURITIES
	 	 	22	 
	 
	 	 	 	 
	SECTION 3.01 Title and Terms
	 	 	22	 
	SECTION 3.02 Denominations
	 	 	23	 
	SECTION 3.03 Execution, Authentication, Delivery and Dating
	 	 	23	 
	SECTION 3.04 Temporary Securities
	 	 	24	 
	SECTION 3.05 Registration; Registration of Transfer and Exchange
	 	 	24	 
	SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	27	 
	SECTION 3.07 Payment of Interest; Interest Rights Preserved
	 	 	28	 
	SECTION 3.08 Persons Deemed Owners
	 	 	29	 
	SECTION 3.09 Cancellation
	 	 	29	 
	SECTION 3.10 Computation of Interest
	 	 	29	 
	SECTION 3.11 CUSIP Numbers
	 	 	29	 
	 
	 	 	 	 
	ARTICLE IV SATISFACTION AND DISCHARGE
	 	 	30	 
	 
	 	 	 	 
	SECTION 4.01 Satisfaction and Discharge of Indenture
	 	 	30	 
	SECTION 4.02 Application of Trust Money
	 	 	31	 






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	 	 	Page	 
	ARTICLE V REMEDIES
	 	 	31	 
	 
	 	 	 	 
	SECTION 5.01 Events of Default
	 	 	31	 
	SECTION 5.02 Acceleration of Maturity; Rescission and Annulment
	 	 	33	 
	SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	34	 
	SECTION 5.04 Trustee May File Proofs of Claim
	 	 	34	 
	SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities
	 	 	35	 
	SECTION 5.06 Application of Money Collected
	 	 	35	 
	SECTION 5.07 Limitation on Suits
	 	 	36	 
	SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest
	 	 	36	 
	SECTION 5.09 Restoration of Rights and Remedies
	 	 	36	 
	SECTION 5.10 Rights and Remedies Cumulative
	 	 	37	 
	SECTION 5.11 Delay or Omission Not Waiver
	 	 	37	 
	SECTION 5.12 Control by Holders
	 	 	37	 
	SECTION 5.13 Waiver of Past Defaults
	 	 	37	 
	SECTION 5.14 Undertaking for Costs
	 	 	38	 
	SECTION 5.15 Waiver of Usury, Stay or Extension Laws
	 	 	38	 
	SECTION 5.16 No Personal Liability of Incorporators, Shareholders, Officers, Directors or Employees
	 	 	38	 
	 
	 	 	 	 
	ARTICLE VI THE TRUSTEE
	 	 	38	 
	 
	 	 	 	 
	SECTION 6.01 Certain Duties and Responsibilities
	 	 	38	 
	SECTION 6.02 Notice of Defaults
	 	 	39	 
	SECTION 6.03 Certain Rights of Trustee
	 	 	40	 
	SECTION 6.04 Not Responsible for Recitals or Issuance of Securities
	 	 	41	 
	SECTION 6.05 May Hold Securities and Act as Trustee under Other Indentures
	 	 	42	 
	SECTION 6.06 Money Held in Trust
	 	 	42	 
	SECTION 6.07 Compensation and Reimbursement
	 	 	42	 
	SECTION 6.08 Disqualification; Conflicting Interests
	 	 	43	 
	SECTION 6.09 Corporate Trustee Required; Eligibility
	 	 	43	 
	SECTION 6.10 Resignation and Removal; Appointment of Successor
	 	 	43	 
	SECTION 6.11 Acceptance of Appointment by Successor
	 	 	44	 
	SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	45	 
	SECTION 6.13 Preferential Collection of Claims Against Company
	 	 	45	 
	SECTION 6.14 Trustee’s Application for Instructions from the Company
	 	 	45	 
	 
	 	 	 	 
	ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	45	 
	 
	 	 	 	 
	SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders
	 	 	45	 
	SECTION 7.02 Preservation of Information; Communications to Holders
	 	 	46	 
	SECTION 7.03 Reports by Trustee
	 	 	46	 
	SECTION 7.04 Reports by Company
	 	 	46	 
	 
	 	 	 	 
	ARTICLE VIII CONSOLIDATIONS, MERGERS AND CERTAIN SALES OF ASSETS
	 	 	47	 
	 
	 	 	 	 
	SECTION 8.01 The Company May Consolidate, Etc. Only on Certain Terms
	 	 	47	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 8.02 Successor Substituted
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES
	 	 	48	 
	 
	 	 	 	 
	SECTION 9.01 Supplemental Indentures Without Consent of Holders
	 	 	48	 
	SECTION 9.02 Supplemental Indentures With Consent of Holders
	 	 	48	 
	SECTION 9.03 Execution of Supplemental Indentures
	 	 	49	 
	SECTION 9.04 Effect of Supplemental Indentures
	 	 	49	 
	SECTION 9.05 Conformity with Trust Indenture Act
	 	 	50	 
	SECTION 9.06 Reference in Securities to Supplemental Indentures
	 	 	50	 
	 
	 	 	 	 
	ARTICLE X COVENANTS
	 	 	50	 
	 
	 	 	 	 
	SECTION 10.01 Payment of Principal Amount, Premium and Interest
	 	 	50	 
	SECTION 10.02 Payment of Additional Amounts
	 	 	50	 
	SECTION 10.03 Maintenance of Office or Agency
	 	 	52	 
	SECTION 10.04 Money for Securities Payments to be Held in Trust
	 	 	52	 
	SECTION 10.05 Corporate Existence
	 	 	53	 
	SECTION 10.06 Maintenance of Properties
	 	 	54	 
	SECTION 10.07 Payment of Taxes and Other Claims
	 	 	54	 
	SECTION 10.08 Maintenance of Insurance
	 	 	54	 
	SECTION 10.09 Limitation on Liens
	 	 	54	 
	SECTION 10.10 Change of Control Triggering Event
	 	 	55	 
	SECTION
10.11 Commission Reports
	 	 	56	 
	SECTION 10.12 Statement By Officers as to Default; Compliance Certificates
	 	 	56	 
	SECTION 10.13 Waiver of Certain Covenants
	 	 	57	 
	SECTION 10.14 Payments for Consent
	 	 	57	 
	SECTION 10.15 Affiliate Transactions
	 	 	57	 
	 
	 	 	 	 
	ARTICLE XI REDEMPTION OF SECURITIES
	 	 	57	 
	 
	 	 	 	 
	SECTION 11.01 Right of Redemption
	 	 	57	 
	SECTION 11.02 Mandatory Redemption
	 	 	58	 
	SECTION 11.03 Applicability of Article
	 	 	59	 
	SECTION 11.04 Election to Redeem; Notice to Trustee
	 	 	59	 
	SECTION 11.05 Selection by Trustee of Securities to Be Redeemed
	 	 	59	 
	SECTION 11.06 Notice of Redemption
	 	 	59	 
	SECTION 11.07 Deposit of Redemption Price
	 	 	60	 
	SECTION 11.08 Securities Payable on Redemption Date
	 	 	60	 
	SECTION 11.09 Securities Redeemed in Part
	 	 	61	 
	 
	 	 	 	 
	ARTICLE XII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	61	 
	 
	 	 	 	 
	SECTION 12.01 Company’s Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	61	 
	SECTION 12.02 Legal Defeasance and Discharge
	 	 	61	 
	SECTION 12.03 Covenant Defeasance
	 	 	62	 
	SECTION 12.04 Conditions to Legal Defeasance or Covenant Defeasance
	 	 	62	 
	SECTION 12.05 Deposited Money and United States Government Securities to be Held in Trust; Other Miscellaneous Provisions
	 	 	63	 






iv









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 12.06 Reinstatement
	 	 	64	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	Exhibit A        
    FORM OF NOTE
	 	 	 	 






v









 





     This
INDENTURE, dated as of
[          ],
is between Ship Finance International Limited, a
Bermuda exempted, (the “Company”), and Wilmington
Trust FSB, as trustee (the “Trustee”).



     The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders (as defined) of the [     ] % Senior Notes due [     ] (the
“Securities”)



ARTICLE I




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


SECTION 1.01 Definitions.




     “Acquired Debt” means Debt of a Person existing at the time such Person became a Subsidiary
and not Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary.



     “Additional Securities” means any additional Securities that may be issued under a
supplemental indenture after the date that the Securities are first issued by the Company and
authenticated by the Trustee under this Indenture, which shall rank pari passu with the Securities
initially issued in all respects.



     “Affiliate” of any specified
Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, “control” when used with respect to any 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.



     “Agent Members” means members of, or direct participants in, the Depositary.



     “Board of Directors” means, with respect to any Person, (i) in the case of any corporation,
the board of directors of such person, (ii) in the case of any limited liability company, the board
of managers or board of directors, as applicable, of such person, or if such limited liability
company does not have a board of managers or board of directors, the functional equivalent of the
foregoing, (iii) in the case of any partnership, the board of directors or board of managers, as
applicable, of the general partner of such person and (iv) in any other case, the functional
equivalent of the foregoing.



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



 









 





     “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a date other than a Business Day at a place
of payment, payment may be made at that place on the next succeeding day that is a Business Day,
and no interest shall accrue on such payment for the intervening period.




	 	 	“Capital Stock” means”






	 	(a)	 	in the case of a corporation, Common or Preferred Stock;






	 	(b)	 	in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) in the equity of such
association or entity;






	 	(c)	 	in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and





     (d) any other interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from
all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.



     “Capitalized Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) of which the discounted present value of the rental obligations of such Person,
as lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of such
Person; and “Capitalized Lease Obligation” is defined to mean the rental obligations, as aforesaid,
under such lease.



     “Change of Control” means:



     (a) 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



     (b) 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



     (c) the
sale, lease, transfer, conveyance or other disposition (other than by
way of time charter, voyage charter or pooling arrangement, or merger or
consolidation), in one or a series of related transactions, of all or substantially all of



2









 




the assets of the Company and its Subsidiaries taken as a whole to any “person” (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act); or




     (d) the adoption by the stockholders of the Company of a plan or proposal for the liquidation
or dissolution of the Company.



     “Change of Control Offer” means a written offer pursuant to Section 10.10 to each
Holder offering to purchase all Outstanding Securities at the purchase price specified in such
offer (as determined pursuant to this Indenture). Unless otherwise required by applicable law, the
offer shall specify an expiration date (the “Offer Expiration Date”) of the Change of Control Offer
which shall be, subject to any contrary requirements of applicable
law, not less than 30 calendar days or
more than 60 days after the date of such offer and a settlement date (the “Purchase Date”) for
purchase of Securities within five Business Days after the Offer Expiration Date. The Offer shall
contain information describing the transaction or transactions that constitute a Change of Control.



     The offer shall contain all instructions and materials necessary to enable such Holders of the
Securities to tender Securities pursuant to the Change of Control Offer. The Offer shall also
state:




     (1) the Change of Control Offer is being made pursuant to Section 10.10of the
Indenture;




     (2) the Expiration Date and the Purchase Date;




     (3) the aggregate principal amount of the Outstanding Securities offered to be
purchased by the Company pursuant to the Change of Control Offer (the “Purchase Amount”);




     (4) the purchase price to be paid by the Company for each $1,000 aggregate principal
amount of Securities accepted for payment (as specified pursuant to this Indenture)
(the ”Purchase Price”);




     (5) that the Holder may tender all or any portion of the Securities registered in the
name of such Holder and that any portion of a Security tendered must be tendered in a
minimum denomination of $2,000 principal amount and integral multiples of $1,000 principal
amount in excess thereof;




     (6) the place or places where Securities are to be surrendered for tender pursuant to
the Change of Control Offer;




     (7) that interest on any Security not tendered or tendered but not purchased by the
Company pursuant to the Change of Control Offer will continue to accrue;




     (8) that on the Purchase Date, the Purchase Price will become due and payable upon each
Security being accepted for payment pursuant to the Change of Control Offer and that
interest thereon shall cease to accrue on and after the Purchase Date;



3









 






     (9) that Holders electing to have any Securities purchased pursuant to a Change of
Control Offer will be required to surrender the Notes, with the form entitled “Option of
Holder to Elect Purchase” attached to the Securities completed, or transfer by book-entry
transfer, to the Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment Date;




     (10) that Holders of the Securities will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not later than the second
Business Day preceding the close of business on the Expiration Date, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the Security the
Holder tendered, the certificate number of the Security the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender;




     (11) that (a) if Securities in an aggregate principal amount less than or equal to the
Purchase Amount are duly tendered and not withdrawn pursuant to the Change of Control Offer,
the Company shall purchase all such Securities and (b) if Securities in an aggregate
principal amount in excess of the Purchase Amount are tendered and not withdrawn pursuant to
the Change of Control Offer, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with such adjustments as
may be deemed appropriate so that only Securities in denominations of $2,000 or integral
multiples of $1,000 in excess thereof shall be purchased); and (12) that in the case of any
Holder whose Security is purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver (or cause to be transferred by book entry) to the Holder of
such Security without service charge, 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 unpurchased portion of the Security so tendered.



     “Change of Control Triggering Event” means the occurrence of a Change of Control and a Rating
Decline.



     “Clearstream” means Clearstream Banking, S.A.



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



     “Common Stock” of any Person means Capital Stock of such Person that does not rank prior, as
to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital Stock of any other
class of such Person.



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company (or its successor Person) by its Chief Executive Officer, its President, a



4









 




Vice-President, its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its
Controller, its Corporate Secretary or an Assistant Secretary, and delivered to the Trustee.




     “Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a Maturity comparable to the remaining term of the
Securities that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable Maturity to
the remaining term of the Securities.



     “Comparable Treasury Price” means, as determined by the Company, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated “H.15(519) Selected
Interest Rates” or (ii) if such release (or any successor release) is not published or does not
contain such prices on such Business Day, (A) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations for such Redemption Date, or (B) if the Company obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.



     “Corporate
Trust Office” means the corporate trust office of the Trustee or its Affiliate at
which at any particular time its corporate trust business may be administered and any additional
office it may designate in writing to the Company. At the date of this Indenture, the Corporate
Trust Office of the Trustee is located at [                    ].



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



     “Currency Agreement” means any foreign exchange contract, currency swap agreement or other
similar agreement or arrangement designed to protect the Company or any of its Subsidiaries against
fluctuations in currency values to or under which the Company or any of its Subsidiaries is a party
or a beneficiary on the date of this Indenture or becomes a party or a beneficiary thereafter.



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




     (1) all debt of such Person for borrowed money;




     (2) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;




     (3) all obligations of such Person in respect of letters of credit or other similar
instruments (including reimbursement obligations with respect thereto);




     (4) all obligations of such Person to pay the deferred purchase price of property or
services, which purchase price is due more than six months after the date of



5









 







placing such property in service or taking delivery thereto or the completion of such
services, except trade payables;




     (5) all obligations of such Person as lessee under Capitalized Leases;




     (6) all Debt of Persons other than such Person secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person; provided that the amount of such
Debt shall be the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Debt;




     (7) all Debt of Persons other than such Person guaranteed by such Person to the extent
such Debt is guaranteed by such Person; and




     (8) to the extent not otherwise included in this definition, obligations under Currency
Agreements and Interest Rate Agreements.



     The amount of Debt of any Person at any date shall be the outstanding balance at such date of
all unconditional obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the obligation, provided
that the amount outstanding at any time of any Debt issued with original issue discount is the face
amount of such Debt less the remaining unamortized portion of the original issue discount of such
Debt at such time as determined in conformity with GAAP; and provided further that Debt shall not
include any liability for federal, state, local, foreign or other taxes.



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



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



     “Depositary” means The Depository Trust Company until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall
mean each successor Depositary.



     “Designated Debt” means any debt for borrowed money in the form of bonds, notes, debentures or
other debt securities, including any guarantee or indemnity given in respect of debt of any third
party for money borrowed in the form of bonds, notes, debentures or other debt securities issued by
way of a public offering, in each case. For the avoidance of doubt, the term “Designated Debt”
shall not include loans (or collateral debt securities relating to such loans) made by banks or
other financial institutions, customers or strategic partners.



     “Disqualified Equity Interests” of any Person means any class of Equity Interests of such
Person that, by its terms, or by the terms of any related agreement or of any security into or for
which it is convertible, puttable or exchangeable, is, or upon the happening of any event or the
passage of time would be, required to be redeemed by such Person, whether or not at the option of
the Holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, in whole or in part, on or prior to the date which is 91 calendar days after the
final Maturity date of the Securities; provided, however, that any class of Equity



6









 




Interests of such Person that, by its terms, authorizes such Person to satisfy in full its
obligations with respect to the payment of dividends or upon Maturity, redemption (pursuant to a
sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests
that are not Disqualified Equity Interests, and that is not convertible, puttable or exchangeable
into or for Disqualified Equity Interests or Debt, will not be deemed to be Disqualified Equity
Interests so long as such Person satisfies its obligations with respect thereto solely by the
delivery of Equity Interests that are not Disqualified Equity Interests; provided, further,
however, that any Equity Interests that would not constitute Disqualified Equity Interests but for
provisions thereof giving Holders thereof (or the Holders of any security into or for which such
Equity Interests are convertible, exchangeable or exercisable) the right to require the Company to
redeem or repurchase such Equity Interests upon the occurrence of a
Change in Control or an asset
sale occurring prior to the
91st day after the final Maturity date of the Securities
shall not constitute Disqualified Equity Interests if the change of control provisions applicable
to such Equity Interests are no more favorable to such Holders than the provisions described under
Section 10.10, and such Equity Interests specifically provide that the Company will not
redeem any such Equity Interests pursuant to such provisions prior to the Company’s purchase of the
Securities as required pursuant to the provisions described under Section 10.10.




     “Eligible Jurisdiction” means any of the Republic of the Marshall Islands, the Commonwealth of
the Bahamas, the British Virgin Islands, the Cayman Islands, the Isle
of Man, Hong Kong, Singapore, Norway, the United Kingdom and
any Member State of the European Union.



     “Equity
Interests” of any Person means (1) any and all shares and
other Equity Interests
(including Common Stock, Preferred Stock, limited liability company interests and partnership
interests) in such Person and (2) all rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests in (however designated)
such shares or other interests in such Person.



     “Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.



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



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor act
thereto.



     “Expiration Date” has the meaning specified in Section 1.05.



     “GAAP” means generally accepted accounting principles in the United States of America (or, if
applicable, International Financial Reporting Standard (“IFRS”)) as in effect as of the date of
this Indenture, including, without limitation, 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 shall be computed in
conformity with GAAP or IFRS, if applicable.



     “Global Security” means, individually and collectively, each Security deposited with or on
behalf of and registered in the name of the Depositary or its nominee, substantially in the



7









 




form of Exhibit A hereto and that bears the Global Security Legend and that has the “Schedule
of Exchanges of Interests in the Global Security” attached thereto.




     “Gradation” is defined to mean a gradation within a Rating Category or a change to another
Rating Category, which shall include:



     (a) “+” and “–” in the case of S&P’s current Rating Categories (e.g., a decline from BB+ to BB
would constitute a decrease of one gradation);



     (b) 1, 2 and 3 in the case of Moody’s current Rating Categories (e.g., a decline from B1 to B2
would constitute a decrease of one gradation); or



     (c) the equivalent in respect of successor Rating Categories of S&P or Moody’s or Rating
Categories used by Rating Agencies other than S&P and Moody’s.



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



     “IFRS” has the meaning specified in the definition of GAAP.



     “Incur” means with respect to any Debt, to incur, create, issue, assume, guarantee or
otherwise become liable for or with respect to, or become responsible for, the payment of,
contingently or otherwise, such Debt, including an incurrence of Acquired Debt by reason of the
acquisition of more than 50% of the Capital Stock of any Person; provided that neither the accrual
of interest nor the accretion of original issue discount shall be considered an Incurrence of Debt.



     “Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.



     “Independent Investment Banker” means an independent investment banking institution of
national standing appointed by the Company.



     “Interest Payment Date” has the meaning specified in the Securities.



     “Interest Rate Agreement” means 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 designed to protect the Company or any of its Subsidiaries against fluctuations in
interest rates to or under which the Company or any of its Subsidiaries is a party or a beneficiary
on the date hereof or becomes a party or a beneficiary hereafter.



     “Investment Grade” means:




     (1) BBB- or above in the case of S&P (or its equivalent under any successor Rating
Categories of S&P);



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     (2) Baa3 or above, in the case of Moody’s (or its equivalent under any successor Rating
Categories of Moody’s); and




     (3) the equivalent in respect of the Rating Categories of any Rating Agencies
substituted for S&P or Moody’s.



     “Lien” is defined to mean any mortgage, lien, pledge, security interest, encumbrance or charge
of any kind (including, without limitation, any conditional sale or other title retention agreement
or lease in the nature thereof, any sale with recourse against the seller or any Affiliate of the
seller, or any agreement to give any security interest).



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



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



     “Notice of Default” means a written notice of the kind specified in Section
5.01(a)(4).



     “Offer Expiration Date” has the meaning specified in the definition of Change of Control
Offer.



     “Officer’s
Certificate” means a certificate signed by any two of the Chief Executive Officer, the
President, a Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
or the Controller, or any one of the foregoing and any one of the Corporate Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company,
including an employee of the Company, and who shall be reasonably acceptable to the Trustee.



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




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




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



9









 






     (3) Securities, except to the extent provided in Sections 12.02 and
12.03, with respect to which the Company has effected Legal Defeasance and/or
Covenant Defeasance as provided in Article XII; and (4) Securities which have been paid
pursuant to Section 3.06 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver or other action, only
Securities which the Trustee knows to be so owned by written notice delivered at its notice address
specified in Section 1.06, shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.




     “pari passu”, when used with respect to the ranking of any Debt of any Person in relation to
other Debt of such Person, means that each such Debt (a) either (i) is not subordinated in right of
payment to any other Debt of such Person or (ii) is subordinate in right of payment to the same
Debt of such Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as to which the other is
not so subordinate.



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



     “Paying Agent” means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company, which initially shall be
the Trustee.



     “Permitted Holders” means any of (i) Mr. John Fredriksen, (ii) each of his spouse or
ex-spouse, siblings, ancestors, descendants (whether by blood, marriage or adoption, and including
stepchildren) and the spouses or ex-spouses, siblings, ancestors and descendants thereof (whether
by blood, marriage or adoption, and including stepchildren) of such natural persons, the
beneficiaries, estates and legal representatives of any of the foregoing, the trustee of any bona
fide trust of which any of the foregoing, individually or in the aggregate, are the majority in
interest beneficiaries or grantors, and any corporation, partnership, limited liability company or
other Person in which any of the foregoing, individually or in the aggregate, own or control a
majority in interest; and (iii) all Affiliates controlled by the Persons named in clauses (i) and
(ii) above.



10









 





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



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



     “Preferred Stock” of any Person means Capital Stock of such Person of any class or classes
(however designated) that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to
shares of Capital Stock of any other class of such Person.



     “Prospectus Supplement” means the prospectus supplement, dated      , in connection
with the initial issuance of the Securities.



     “Purchase Amount” has the meaning specified in the definition of Change of Control Offer.



     “Purchase Date” has the meaning specified in the definition of Change of Control Offer.



     “Purchase Price” has the meaning specified in the definition of Change of Control Offer.



     “Qualified Equity Interests” of any Person means Equity Interests of such Person other than
Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified
Equity Interests to the extent sold or owed to a Subsidiary of such Person or financed, directly or
indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person until and to
the extent such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by such
Person or any Subsidiary of such Person (including, without limitation, in respect of any employee
stock ownership or benefit plan). Unless otherwise specified, Qualified Equity Interests refer to
Qualified Equity Interests of the Company.



     “Qualified Equity Offering” means the issuance and sale of Qualified Equity Interests of the
Company to Persons other than any Person who is, prior to such issuance and sale, an Affiliate of
the Company which proceeds are contributed to the Company; provided, however, that cash proceeds
therefrom equal to not less than the Redemption Price of the Securities to be redeemed are received
by the Company as a capital contribution immediately prior to such redemption.



     “Rating Agencies” means:




     (1) S&P;




     (2) Moody’s; or



11









 






     (3) if either S&P or Moody’s or both of them are not making ratings of the Securities
publicly available, a nationally recognized U.S. rating agency or agencies, as the case may
be, selected by the Company, which will be substituted for S&P or Moody’s or both, as the
case may be.



     “Rating Category” means:




     (1) with respect to S&P, any of the following categories (any of which may include a
“+” or “-”): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories);




     (2) with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B,
Caa, Ca, C and D (or equivalent successor categories); and




     (3) the equivalent of any such categories of S&P or Moody’s used by another Rating
Agency, if applicable.



     “Rating Decline” means that at any time within 90 calendar days (which period shall be
extended so long as the rating of the Securities is under publicly announced consideration for
possible downgrade by any Rating Agency) after the date of public notice of a Change of Control, or
of the intention of the Company or of any Person to effect a Change of Control, the rating of the
Securities is decreased by both Rating Agencies by one or more Gradations and the rating by such
Rating Agencies on the Securities following such downgrade is below Investment Grade.



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



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



     “Reference Treasury Dealer” means a primary U.S. Government securities dealer in New York City
appointed by the Company.



     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company of the bid and asked prices for
the Comparable Treasury Issue (expressed, in each case, as a percentage of its principal amount)
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date.



     “Regular Record Date” has the meaning specified in the Securities.



     “Reporting Failure” means the failure of the Company to file with or furnish to the Commission
and furnish to the trustee and Holders, as applicable, within the time periods specified in
Section 10.11 (after giving effect to any grace period specified under Rule 12b-25 under
the Exchange Act), the reports and information which the Company may be required to file with or
furnish to the Commission pursuant to such provision.



12









 





     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
trust officer or any other officer or authorized associate of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such person’s knowledge
of and familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.



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



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



     “Security” and “Securities” have the meaning set forth in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under this Indenture. For
all purposes of this Indenture, the term “Securities” shall include any Additional Securities that
may be issued under a supplemental indenture and, for purposes of this Indenture, both the
Securities and the Additional Securities shall vote together as one series of Securities under this
Indenture.



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



     “Significant
Subsidiary” means any Subsidiary that (i) would be a “significant subsidiary” as
defined in Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
regulation is in effect on the date hereof and (ii) is a party
to an agreement or arrangement that obligates it to repay Debt that
is guaranteed by the Company.



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



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



     “Subsidiary” is defined to mean, with respect to the Company, any business entity of which
more than 50% of the outstanding Voting Stock is owned directly or indirectly by the Company and
one or more other Subsidiaries of the Company.



     “Successor Company” has the meaning specified in Section 8.02.



     “Treasury Yield” means, with respect to any Redemption Date, the rate per year equal to the
semi annual equivalent yield to Maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.



13









 





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



     “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended.



     “United States” means the United States of America (including the States thereof and the
District of Columbia), its territories, its possessions and other areas subject to its
jurisdiction.



     “U.S. Dollars” and “$” means such coin or currency of the United States which is legal tender
for payment of public and private Debts.



     “U.S. Government Securities” means securities that are direct obligations of the United States
of America, direct obligations of any agency thereof, direct obligations of the Federal Home Loan
Mortgage Corporation, direct obligations of the Federal National Mortgage Association, securities
which the timely payment of whose principal and interest is unconditionally guaranteed by the full
faith and credit of the United States of America, trust receipts or other evidence of indebtedness
of a direct claim upon the instrument described above and money market mutual funds that invest
solely in such securities.



     “Vessel” means one or more shipping or drilling vessels or drilling rigs, whether or not under
their own power, whose primary purpose is the maritime transportation of cargo and/or passengers or
the exploration and production drilling for crude oil or hydrocarbons, or which are otherwise
engaged, used or useful in any business activities of the Company and its 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 subsidiaries or operated or to be operated by the Company or any of its 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.



     “Vice President”, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president”.



     “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors or similar governing body of
such Person.


SECTION 1.02 Rules of Construction.




     (a) 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;



14









 






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




     (5) “will” shall be interpreted to express a command;




     (6) provisions apply to successive events and transactions;




     (7) unless the context requires otherwise, any reference to a statute, rule or
regulation refers to the same (including any successor statute, rule or regulation thereto)
as it may be amended from time to time; and (8) “including” means including without
limitation.


SECTION 1.03 Compliance Certificates and Opinions.




     (a) Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate and
such other certificates and Opinions of Counsel as may be required under the Trust Indenture Act or
as set forth herein. Each such certificate, Opinion of Counsel or
other expert opinion shall include:




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




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




     (3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition precedent, if any, has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant necessary for any action in the Trustee’s opinion has been complied with.


SECTION 1.04 Form of Documents Delivered to Trustee.




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



     (b) Any certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which his or her certificate or opinion is based are erroneous. Any such certificate or



15









 




opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or opinion or representations with respect to such matters are
erroneous.




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


SECTION 1.05 Acts of Holders; Record Dates.




     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “Act” of the Holders signing such instrument or instruments and the Holders bound
thereby. Proof of execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this Section 1.05.



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



     (c) The ownership of Securities (including the principal amount and serial numbers of
Securities held by any Person, and the date of holding the same) shall be proved by the Security
Register.



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



     (e) The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to give, make or take any request, demand,



16









 




authorization, direction, vote, notice, consent, waiver or other action provided or permitted
by this Indenture to be given, made or taken by Holders of Securities, provided that the Company
may not set a record date for, and the provisions of this paragraph shall not apply with respect
to, the giving or making of any notice, declaration, request or direction referred to in the next
paragraph. If not set by the Company prior to the first solicitation of a Holder made by any
Person in respect of any such matter referred to in the foregoing sentence, the record date for any
such matter shall be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 7.01) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record
date, and no other Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Securities in the manner set forth in
Section 1.07.




     (f) The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to join in the giving or making of (1) any Notice of Default, (2)
any declaration of acceleration referred to in Section 5.02, (3) any request to institute
proceedings referred to in Section 5.07 or (4) any direction referred to in Section
5.12. If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously been set pursuant
to this paragraph (whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Company in writing
and to each Holder of Securities in the manner set forth in Section 1.07.



     (g) With respect to any record date set pursuant to this Section 1.05(g), the party
hereto which sets such record date may designate any day as the “Expiration Date” and from time to
time may change the Expiration Date to any earlier or later day; provided that no such change shall
be effective unless notice of the proposed new Expiration Date is given to the other party hereto
in writing, and to each Holder of Securities in the manner set forth in Section 1.07,



17









 




on or prior to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which set such record
date shall be deemed to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.




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



     (i) In addition to the foregoing, the Trustee agrees to accept and act upon notice,
instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that (a) the party
providing such written instructions, subsequent to such transmission of written instructions, shall
provide the originally executed instructions or directions to the Trustee in a timely manner, and
(b) such originally executed instructions or directions shall be signed by an authorized
representative of the party providing such instructions or directions. The Trustee shall not be
liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s
reasonable reliance upon and compliance with such instructions notwithstanding such instructions
conflict or are inconsistent with a subsequent written instruction.



     (j) Without limiting the generality of the foregoing, a Holder, including the Depositary, that
is the Holder of a Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders or the Depositary, as the Holder
of a Global Security, may provide its proxy or proxies to the beneficial owners of interest in any
such Global Security through such depositary’s standing instructions and customary practices.



     (k) The Company may fix a record date for the purpose of determining the persons who are
beneficial owners of interests in any Global Security held by the Depositary entitled under the
procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed,
the Holders on such record date or their duly appointed proxy or proxies, and only such persons,
shall be entitled to make, give or take such request, demand, authorization direction, notice
consent, waiver or other action, whether or not such Holders remain Holders after such record
date. No such request, demand, authorization, direction, notice, consent, waiver or other action
shall be valid or effective if made, given or taken more than
90 calendar days after such record date.



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SECTION 1.06 Notices, Etc., to Trustee and Company.




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



     (a) the Trustee by any Holder or by the Company shall be sufficient for purposes other than
with respect to securities for payment or for registrations of transfer or exchange, if made,
given, furnished or filed in writing (or by facsimile transmissions
to Wilmington Trust FSB, Corporate Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention: Corporate Trust Administration, Facsimile 612-217-5651
provided that oral confirmation of receipt shall have been received) to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration;



     (b) if, for purpose of Section 3.05 (with respect to securities for payment or for
registrations of transfer or exchange) to Wilmington Trust Company, Corporate Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402,
Attention: Corporate Trust Administration, Facsimile: 612-217-5651;



     (c) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, international air
mail postage prepaid or by overnight air courier or by facsimile transmissions to the Company
addressed to it at the address of its principal executive office specified in the first paragraph
of this instrument, Facsimile: [          ], provided that oral confirmation of receipt
shall have been received, Attention: General Counsel, or at any other address or facsimile
transmission number previously furnished in writing to the Trustee by the Company.



     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 transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     Notwithstanding anything to the contrary herein, the Trustee agrees to accept and act upon
instructions or directions pursuant to this Indenture sent by electronic transmission; provided,
however, that such instructions or directions, if from the Company, shall be accompanied by an
incumbency certificate listing such authorized representative, which incumbency certificate shall
be amended whenever a person is to be added or deleted from the listing or if the Trustee is in
possession of such incumbency certificate, no additional certificate need be delivered. If the
party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the
Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be
liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance
upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. The party providing electronic instructions
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 or interception and misuse by third parties.



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SECTION 1.07 Notice to Holders; Waiver.




     (a) Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if delivered to the Trustee in
accordance with this Article I.



     (b) Notwithstanding anything to the contrary contained herein, as long as the Securities are
in the form of a Global Security, notice to the Holders may be made electronically in accordance
with procedures of the Depositary.


SECTION 1.08 Conflict with Trust Indenture Act.




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


SECTION 1.09 Effect of Headings and Table of Contents.




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


SECTION 1.10 Successors and Assigns.




     All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not. All agreements of the Trustee in this Indenture shall bind
its successors.


SECTION 1.11 Separability Clause.




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


SECTION 1.12 Benefits of Indenture.




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


SECTION 1.13 Governing Law.




     THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THAT
WOULD APPLY TO THE LAWS OF ANOTHER JURISDICTION.



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SECTION 1.14 Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date, Purchase Date or Stated Maturity
of any Security shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal amount (and premium, if any) need
not be made on such date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Purchase Date or Stated Maturity, as the case may be.


SECTION 1.15 Consent to Service; Jurisdiction.




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


SECTION 1.16 Waiver of Jury Trial.



EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.




ARTICLE II




FORMS OF SECURITY


SECTION 2.01 Forms Generally.




     (a) The Securities and the Trustee’s certificates of authentication shall be substantially in
the form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may be required to
comply with law, stock exchange rules or usage, or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of the Securities.



     (b) The terms and provisions contained in the Securities will constitute, and are hereby
expressly made, a part of this Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to be



21









 




bound thereby. However, to the extent any provision of any Security conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall govern and be
controlling.




     (c) The definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any other manner,
provided that such manner is permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.



ARTICLE III




THE SECURITIES


SECTION 3.01 Title and Terms.




     (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is not limited.



     (b) The Securities shall be designated as the “[     ]% Senior Notes due [     ]” of the
Company. Their Stated Maturity shall be [     ] and they shall bear interest thereon at a rate of [     ]% per annum in cash semi-annually to the Holder of record at the close of business on the
Regular Record Date immediately preceding the applicable Interest Payment Date, on the Interest
Payment Date, commencing on [     ].



     (c) The principal amount of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company in the Borough of Manhattan, City of New York, New
York maintained for such purpose or at any other office or agency maintained by the Company for
such purpose; provided, however, that at the option of the Company payment of interest may be made
by check mailed to the address of the Person entitled thereto as such address shall appear in the
Security Register. If a Holder has given wire transfer instructions to the Company at least three
Business Days prior to the applicable Interest Payment Date, the
Company, through the Paying Agent
or otherwise, will pay all principal, interest and premium, if any, on that Holder’s Securities in
accordance with those instructions.



     (d) The provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream
Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial
interests in any Securities that are held by Participants through Euroclear or Clearstream.



     (e) The Securities shall be subject to repurchase by the Company pursuant to a Change of
Control Offer as provided in Section 10.10.



     (f) The Securities shall be redeemable as provided in Article XI.



     (g) The Securities shall be subject to Legal Defeasance and/or Covenant Defeasance at the
option of the Company as provided in Article XII.



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     (h) Additional Securities ranking pari passu with the Securities issued the date hereof may be
created and issued from time to time by the Company without notice to or consent of the Holders and
shall be consolidated with and form a single series with the Securities initially issued and shall
have the same terms as to status, redemption or otherwise as the Securities originally issued. Any
Additional Securities shall be issued with the benefit of an indenture supplemental to this
Indenture; and in connection with such issuance of Additional Securities, the Company shall deliver
to the Trustee (and the Trustee shall be fully protected in relying upon), an Opinion of Counsel
stating that all conditions precedent to the issuance and authentication of the Additional
Securities have been complied with, and that such Additional Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting
creditors’ rights and by general principles of equity.


SECTION 3.02 Denominations.




     The Securities shall be issuable only in registered form without coupons and only in principal
amounts of $2,000 and any integral multiple of $1,000 in excess thereof.


SECTION 3.03 Execution, Authentication, Delivery and Dating.




     (a) The Securities shall be executed on behalf of the Company by any one of its Chief Executive Officer,
its President, or its Chief Financial Officer. The signature of any of these officers on the
Securities may be manual or facsimile.



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



     (c) At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities; and the Trustee in
accordance with the Company Order shall authenticate and deliver such Securities.



     (d) Each Security shall be dated the date of its authentication.



     (e) No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for in Exhibit A hereto executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder.



     (f) In case the Company, pursuant to Article VIII, shall be consolidated or merged with or
into any other Person or shall convey, transfer, lease or otherwise dispose of substantially all of
its properties and assets to any Person, and the successor Person resulting from such



23









 




consolidation, or surviving such merger, or into which the Company shall have been merged, or
the successor 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 VIII, 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 replacement Securities
as specified in such request for the purpose of such exchange. If replacement Securities shall at
any time be authenticated and delivered in any new name of a successor Person pursuant to this
Section 3.03 in exchange or substitution for or upon registration of transfer of any
Securities, such successor Person, at the option of any Holder but without expense to such Holder,
shall provide for the exchange of all Securities at the time outstanding held by such Holder for
Securities authenticated and delivered in such new name.



SECTION 3.04 Temporary Securities.




     (a) Pending the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such Securities.



     (b) If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. 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 of the Company designated pursuant to Section 10.03,
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 deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities.



SECTION 3.05 Registration; Registration of Transfer and Exchange.




     (a) Registration; Registration of Transfer and Exchange Generally.




     (1) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or agency
designated pursuant to Section 10.03 being herein sometimes collectively referred to
as the “Security Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of transfers



24









 







and exchanges of Securities. The Trustee is hereby appointed “Security Registrar” for
the purpose of registering Securities and transfers and exchanges of Securities as herein
provided.




     (2) Upon surrender for registration of transfer of any Security at an office or agency
of the Company designated pursuant to Section 10.03 for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized denominations and of
a like aggregate principal amount bearing such restrictive legends as may be required by
this Indenture.




     (3) At the option of the Holder, and subject to the other provisions of this
Section 3.05, Securities may be exchanged for other Securities of any authorized
denominations and of a like tenor or aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency of the Company. Whenever any Securities
are so surrendered for exchange, and subject to the other provisions of this Section
3.05, the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.




     (4) All Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same Debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.




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




     (6) No service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Sections 3.04,
9.06 or 11.09 or in accordance with any Change of Control Offer pursuant to
Section 10.10 not involving any transfer.




     (7) The Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of
business 15 calendar days before
the day of the mailing of a notice of redemption of Securities selected for redemption under
Section 11.04 and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed in part.



     (b) [Intentionally Omitted]



     (c) [Intentionally Omitted]



25









 





     (d) The provisions of clauses (1), (2), (3), (4) and (5) of this Section 3.05(d) shall
apply only to Global Securities:




     (1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary or a nominee thereof and delivered to the Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.




     (2) Notwithstanding any other provision in this Indenture or the Securities, no Global
Security may be exchanged in whole or in part for Securities registered, and no transfer of
a Global Security in whole or in part may be registered, in the name of any Person other
than the Depositary or a nominee thereof unless (A) the Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the Exchange Act, and, in either
case, the Company thereupon fails to appoint a successor depositary
within 120 calendar days of such
notice, (B) the Company, at its option, executes and delivers to the Trustee a Company Order
that such Global Security shall be exchanged in whole for Securities that are not Global
Securities, or (C) there shall have occurred and be continuing an Event of Default.




     (3) Securities issued in exchange for a Global Security or any portion thereof pursuant
to clause (2) of this Subsection (d) shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount equal to that of such
Global Security or portion thereof to be so exchanged, shall be registered in such names and
be in such authorized denominations as the Depositary shall designate and shall bear any
legends required hereunder. Any Global Security to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Security Registrar. With regard to any
Global Security to be exchanged in part, either such Global Security shall be so surrendered
for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee
with respect to such Global Security, the principal amount thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee and the Depositary. Upon any such surrender
or adjustment, the Trustee shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depositary or an authorized representative thereof.




     (4) In the event of the occurrence of any of the events specified in clause (2) of this
Subsection (d), the Company will promptly make available to the Trustee a reasonable supply
of certificated Securities in definitive, fully registered form, without interest coupons.




     (5) Neither any Agent Members nor any other Persons on whose behalf Agent Members may
act (including Euroclear and Clearstream and account holders and participants therein) shall
have any rights under this Indenture with respect to any Global Security, or under any
Global Security, and the Depositary or such nominee, as the case may be, may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner
and Holder of such Global Security for all purposes



26









 







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 the Depositary or such nominee, as
the case may be, or impair, as between the Depositary, its Agent Members and any other
person on whose behalf an Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a Holder of any Security.



     (e) The Trustee shall have no 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 Depositary Participants or beneficial owners of interests 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.


SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.




     (a) If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.




     (1) If there shall be delivered to the Company and the Trustee (A) evidence to their
satisfaction of the destruction, loss or theft of any Security and (B) such security or
indemnity as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.




     (2) 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.



     (b) Upon the issuance of any new Security under this Section 3.06, 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)
connected therewith.



     (c) Every new Security issued pursuant to this Section 3.06 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.



27









 





     (d) The provisions of this Section 3.06 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.


SECTION 3.07 Payment of Interest; Interest Rights Preserved.




     (a) Interest on any Security which is payable, and is paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest.



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




     (1) 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 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 of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. The Company shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 calendar days and not
less than 10 calendar days prior to the date of
the proposed payment. The Company shall promptly notify the Trustee of such Special Record
Date and shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at
its address as it appears in the Security Register in accordance with Section 1.07,
not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (2). The
payment date for such Defaulted Interest shall be not less than 5 nor
more than 10 calendar days
after the Special Record Date.




     (2) 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 such Securities
may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment



28









 







pursuant to this Clause, such manner of payment shall be deemed practicable by the
Trustee and in accordance with any applicable procedures of the Depositary.



     (c) Subject to the foregoing provisions of this Section 3.07, 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 3.08 Persons Deemed Owners.




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


SECTION 3.09 Cancellation.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any Change of Control Offer pursuant to Section 10.10 shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 3.09, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their disposal delivered to the
Company unless by Company Order the Company shall direct that cancelled Securities be returned to
it.


SECTION 3.10 Computation of Interest.




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


SECTION 3.11 CUSIP Numbers.



The Company in issuing the Securities may use CUSIP, ISIN or other such numbers (if then generally
in use), and, if so, the Trustee shall use CUSIP, ISIN or other such numbers in notices of
redemption as a convenience to Holders; provided, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected






29









 







by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any
change in the CUSIP, ISIN or other numbers.




ARTICLE IV




SATISFACTION AND DISCHARGE


SECTION 4.01 Satisfaction and Discharge of Indenture.




     (a) This Indenture shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for), and the Trustee,
upon a Company Order and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture (including, but not limited to, Article
XII), when




     (1) Either (i) all Securities that have been authenticated, except lost, stolen or
destroyed Securities that have been replaced or paid and Securities for whose payment money
has been deposited in trust and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or (ii) all Securities that have not been delivered to the Trustee
for cancellation have become due and payable by reason of the mailing of a notice of
redemption or otherwise or will become due and payable by reason of the making of a notice
of redemption or otherwise within one year and the Company has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. Dollars, non-callable U.S. Government Securities, or a combination
of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be
sufficient, without consideration of any reinvestment of interest, to pay and discharge the
entire Debt on the Securities not delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest to the date of Maturity or redemption;




     (2) no Default or Event of Default has occurred and is continuing on the date of the
deposit or will occur as a result of the deposit (other than a Default resulting from the
borrowing of funds to be applied to such deposit) and the deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to which the
Company is a party or by which the Company is bound;




     (3) the Company has paid or caused to be paid all sums payable by it under this
Indenture; and




     (4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Securities at maturity or
the Redemption Date, as the case may be.



     (b) In addition, the Company must deliver to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for in this Section
4.01 relating to the satisfaction and discharge of this Indenture have been complied with.



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     (c) Notwithstanding the satisfaction and discharge of this Indenture pursuant to this Article
IV, the obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of Subsection
(a)(1) of this Section 4.01, the obligations of the Trustee under Section
4.02 and [Section 10.04(e)], shall survive.


SECTION 4.02 Application of Trust Money.




     Subject to the provisions of Section 10.04(e), all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent),
to the Persons entitled thereto, to the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Securities in accordance with Section 4.01 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 Company’s
obligations under this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.01; provided that if the Company has made any
payment of principal of, premium, if any, or interest on, 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 Securities held by the
Trustee or Paying Agent.



ARTICLE V




REMEDIES


SECTION 5.01 Events of Default.




     (a) “Event of Default”, wherever used herein, means any one of the following events:




     (1) default in the payment of the principal of (or premium, if any, on) any Security
when due at Maturity, upon acceleration, redemption or otherwise;




     (2) default in the payment of any accrued and unpaid interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30 calendar days;




     (3) default in the payment of the principal and interest (and premium, if any) on
Securities required to be purchased upon the occurrence of a Change of Control Triggering
Event when due and payable;




     (4) default in the performance, or breach, of any covenant, warranty or agreement of
the Company in this Indenture (other than a covenant, warranty or agreement default in whose
performance or whose breach is specifically dealt with elsewhere in this Section
5.01), and continuance of such default or breach for a period of 60 consecutive days (or
90 consecutive days in the case of a Reporting Failure) after the



31









 







receipt by the Company of a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder,
which notice has been given by registered or certified mail to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities;




     (5) a default or defaults with respect to any issue or issues of other Debt of the
Company or any Significant Subsidiary having an outstanding aggregate principal amount of $50.0 million
or more for all such issues of all such Persons, whether such Debt now exists or shall
hereafter be created, which default or defaults shall constitute a failure to pay all or any
portion of the principal of such Debt when due and payable or shall have resulted in such
Debt becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable and such Debt has not been discharged in full or such
acceleration has not been rescinded or annulled (by cure, waiver or otherwise) within 60
calendar days of such acceleration; provided, however, that any secured Debt in excess of
the limits set forth above shall be deemed to have been declared due and payable if the
lender in respect thereof takes any action to enforce a security interest against, or an
assignment of, or to collect on, seize, dispose of or apply any assets of the Company or its
Significant Subsidiaries (including lock-box and other similar arrangements) securing such Debt, or to
set off against any bank account of the Company or its Significant Subsidiaries in excess of $50.0
million in the aggregate;




     (6) any final judgments or orders (not covered by insurance) for the payment of money
in excess of $50.0 million in the aggregate for all such final judgments or orders against
all such Persons (treating any deductibles, self-insurance or retention as not so covered)
shall be rendered against the Company or any Significant Subsidiary and shall not be paid or discharged,
and there shall be any period of 60 consecutive days following entry of the final judgment
or order or that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed $50 million in the
aggregate during which a stay of enforcement of such final judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect;




     (7) the Company or any Significant Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any Significant Subsidiary seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 calendar days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar official for,
it or for any substantial part of its property) shall occur; or the Company or any
Significant Subsidiary shall take any corporate action to authorize any



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of
the actions set forth above in this Subsection (7); or



(8) the Company and/or one or
more Significant Subsidiaries fails to make at the final (but not any interim) fixed maturity of one or
more issues of Debt principal payments aggregating $50.0 million or more, and all such
defaulted payments shall not have been made, waived or extended within 60 calendar days of
the payment default that causes the aggregate amount described in this subsection (8) to
exceed $50.0 million.


SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.




     (a) If an Event of Default (other than an Event of Default specified in
Section 5.01(a)(7)) shall occur and be continuing, then and in every such case the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities
may, and the Trustee at the request of such Holders shall, declare the entire unpaid principal of,
premium, if any, and accrued interest on the Securities to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal of, premium, if any, and accrued interest on the Securities shall become
immediately due and payable.



     (b) If an Event of Default specified in Section 5.01(a)(5) or (8) occurs, such
declaration of acceleration shall be automatically rescinded and annulled if the event triggering
such Event of Default pursuant to Section 5.01(a)(5) or (8) shall be remedied or
cured by the Company and/or the relevant Significant Subsidiaries or waived by the Holders of the
Designated Debt within 60 calendar days after the declaration of acceleration with respect thereto.



     (c) If an Event of Default specified in Section 5.01(a)(7) above occurs, all unpaid
principal of, premium, if any, and accrued interest on the Securities then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.



     (d) The Holders of at least a majority in principal amount of the Outstanding Securities by
written notice to the Company and to the Trustee, may waive all past defaults and rescind and annul
a declaration of acceleration and its consequences if:




     (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all
sums paid or advanced by the Trustee under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, (B) all overdue
interest on all Securities, (C) the principal of (and premium, if any, on), any Securities
that have become due otherwise than by such declaration or occurrence of acceleration and
interest thereon at the rate prescribed therefor by such Securities, and (D) to the extent
that payment of such interest is lawful, interest upon overdue interest at the rate
prescribed therefor by such Securities,




     (2) all existing Events of Default, other than the non-payment of the principal of the
Securities that have become due solely by such declaration of acceleration, have been cured
or waived, and



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     (3) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.


SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.




     (a) The Company covenants that if




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




     (2) default is made in the payment of the principal amount of (or premium, if any, on)
any Security at the Maturity thereof or, with respect to any Security required to have been
purchased pursuant to a Change of Control Offer made by the Company, at the Purchase Date
thereof,


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




     (b) If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.



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


SECTION 5.04 Trustee May File Proofs of Claim.




     (a) In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee



34









 




and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.




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


SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities.




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


SECTION 5.06 Application of Money Collected.




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




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




SECOND: To the payment first, of the amounts then due and unpaid
for principal amount of (and premium, if any) and second, interest
on the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest,
respectively; and THIRD: to the Company or to such party as a court
of competent jurisdiction shall direct.


SECTION 5.07 Limitation on Suits.




     No Holder of any Security shall have any right to institute or defend any proceeding, judicial
or otherwise, with respect to this Indenture or the Securities or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:



35









 






     (1) such Holder has previously given written notice to the Trustee as required
hereunder of a continuing Event of Default;




     (2) the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities shall have made written request to the Trustee to institute or defend a suit or
proceeding in respect of such Event of Default in its own name as Trustee hereunder;




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




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




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


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



SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest.




     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal amount of (and
premium, if any) and (subject to Section 3.07) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date
or in the case of a Change of Control Offer made by the Company and required to be accepted as to
such Security, on the Purchase Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired or affected without the consent of such Holder.


SECTION 5.09 Restoration of Rights and Remedies.




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



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SECTION 5.10 Rights and Remedies Cumulative.




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


SECTION 5.11 Delay or Omission Not Waiver.




     No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee (subject to the limitations contained in the
Indenture) or by the Holders, as the case may be.


SECTION 5.12 Control by Holders.




     The Holders of a majority in principal amount of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, provided that (a) such
direction shall not be in conflict with any rule of law or with this Indenture and shall not expose
the Trustee to personal liability, and (b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.


SECTION 5.13 Waiver of Past Defaults.




     Holders of not less than a majority in aggregate principal amount of the then Outstanding
Securities by notice to the Trustee may on behalf of the Holders of all of the Securities waive an
existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or interest on, the
Securities (including in connection with an offer to purchase); provided, however, that the Holders
of a majority in aggregate principal amount of the then Outstanding Securities may rescind an
acceleration and its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.


SECTION 5.14 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess



37









 




costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section 5.14 nor the Trust Indenture Act shall
be deemed to authorize any court to require such an undertaking or to make such an assessment in
any suit instituted by the Company or the Trustee.



SECTION 5.15 Waiver of Usury, Stay or Extension Laws.




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


SECTION 5.16 No Personal Liability of Incorporators, Shareholders, Officers, Directors or
Employees.




     No recourse for the payment of the principal of, premium, if any, or interest on, any of the
Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in this Indenture, or in any of the
Securities, or because of the creation of any Debt represented thereby, shall be had against any
incorporator, shareholder, officer, director, employee, or controlling person of the Company or of
any successor Person thereof and any Affiliates thereof. Each Holder or Securities by acceptance
of a Security waives and releases all such liability.



ARTICLE VI




THE TRUSTEE


SECTION 6.01 Certain Duties and Responsibilities.




     (a) The Trustee hereby accepts the trusts imposed on it by this Indenture. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.



     (b) Except during the continuance of an Event of Default, the Trustee undertakes to perform
such functions and duties and only such functions and duties as are specifically set forth in this
Indenture, and no implied duties or obligations shall be read into this Indenture against the
Trustee. During the continuance of an Event of Default, the Trustee shall exercise the same degree
of care and skill as a prudent person would exercise under the circumstances in the conduct of such
person’s own affairs. In the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements



38









 




of this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts 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:




     (i) this Subsection shall not be construed to limit the effect of Subsection
(b) of this Section 6.01;




     (ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be conclusively proved by a court of
final jurisdiction that is not appealable that the Trustee was negligent in
ascertaining the pertinent facts;




     (iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount (or such lesser percentage
as may be provided in this Indenture with respect to specified
actions) of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture; and (iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured
to it.



     (d) Whether or not therein expressly so provided, 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 6.01, and shall
similarly apply with respect to such other functions as the Trustee may
serve hereunder, including that of initial Paying Agent.


SECTION 6.02 Notice of Defaults.




     If
a default occurs and is continuing hereunder with respect to the
Securities and is known to the Responsible Officer of the Trustee
responsible for administering this Indenture, the
Trustee shall give the Holders notice of such default hereunder as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 5.01(a)(4), no such notice to Holders shall be given until the
expiration of the applicable 60-day period (or 90-day period in the case of a Reporting Failure)
referred to therein. For the purpose of this Section 6.01, the term “default” means any
event which is, or after notice or lapse of time or both would
become, an Event of Default. Except in the case of a Default or Event
of Default in payment of principal of, premium, if any, or interest
on any Security, the Trustee may withhold the notice if and for so
long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the best interests of the
Holders of the Securities.

SECTION 6.03 Certain Rights of Trustee.




     (a) Subject to the provisions of Section 6.01, whether or not therein expressly so
provided, 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
6.03.



39









 





     (b) (1) The Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, appraisal, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party or
parties;




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




     (3) 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, the Trustee (unless other evidence be herein specifically prescribed) may
rely upon an Officer’s Certificate;




     (4) the Trustee may consult with experts and with legal counsel and the oral or written
advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;




     (5) 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 against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;




     (6) 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;




     (7) the Trustee may execute any of the trusts or powers hereunder and perform any duty
hereunder, either directly or by or through its agents, attorneys, accountants or other
experts and the Trustee shall not be responsible or liable for any misconduct or negligence
on the part of any agent, attorney, accountants or other experts if reasonable care has been
exercised in the appointment;




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



40









 






     (9) 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
or other Person employed to act hereunder;




     (10) the Trustee may request that the Company deliver an Officer’s Certificate or other
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 Officer’s Certificate
may be signed by any Person authorized to sign an Officer’s Certificate, including any
Person specified as so authorized in any such certificate previously delivered and not
superseded; and




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


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



SECTION 6.04 Not Responsible for Recitals or Issuance of Securities.




     The recitals, statements and representations contained herein and in the Securities, except
the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities issued hereunder, and the
Trustee assumes no responsibility in respect of such matters. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds thereof. The Trustee shall
not have any responsibility or liability for any information provided to Holders or any other
Person, including without limitation in the solicitation of any consent or waiver hereunder, or
pursuant to any offering documents, or pursuant to any Change of Control Offer.


SECTION 6.05 May Hold Securities and Act as Trustee under Other Indentures.




     The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.



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     Subject to the limitations imposed by the Trust Indenture Act, nothing in this Indenture shall
prohibit the Trustee from acting as trustee under other indentures under which other securities, or
certificates of interest or participation in their securities, of the Company are outstanding in
the same manner as if it were not Trustee hereunder.


SECTION 6.06 Money Held in Trust.




     Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.


SECTION 6.07 Compensation and Reimbursement.




     (a) The Company agrees (1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents, experts and counsel), except
any such expense, disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith;




     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence, willful misconduct or bad faith on its part (subject
to the provisions of Sections 6.01 and 6.03), arising out of or in
connection with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder;




     (4) that the Trustee shall have a Lien against all money held under this Indenture
prior to the Securities as to all property and funds held by it hereunder for any amount
owing it or any predecessor Trustee pursuant to this Section 6.07 for such
compensation, expenses, advances and counsel fees incurred in or about the execution of the
trusts created hereby; and




     (5) when the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.01(a)(7), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.



     (b) The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to notify the Company shall not relieve the Company of its
obligations hereunder, except to the extent it may be materially
prejudiced by such failure as conclusively determined by a court of
final jurisdiction that is not appealable.



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     (c) The provisions of this Section 6.07 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.


SECTION 6.08 Disqualification; Conflicting Interests.




     If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.


SECTION 6.09 Corporate Trustee Required; Eligibility.




     There shall at all times be a
Trustee hereunder. The Trustee shall be a Corporation, federal
savings bank or
national banking association, organized and doing business under the laws of the United States of
America or of any state thereof, authorized to exercise corporate trust powers, and be a Person
that is otherwise eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $25,000,000. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section 6.09, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 6.09, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.


SECTION 6.10 Resignation and Removal; Appointment of Successor.




     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.



     (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within
30 calendar days after the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.



     (c) The Trustee may be removed at any time by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee and to the Company.



     (d) If at any time:




     (1) the Trustee shall fail to comply with Section 6.08 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or (2) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the Company or by any
such Holder, or (3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,



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then, in any such case, (A) the Company by a Board Resolution may remove the Trustee, or
(B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.



     (f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to all Holders in the manner provided in Section 1.07. Each
notice shall include the name of the successor Trustee and the address of its Corporate Trust
Office.


SECTION 6.11 Acceptance of Appointment by Successor.




     (a) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.



     (b) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.



     (c) The Company shall prepare such transfer instruments as are reasonably acceptable to the
Trustee for the Successor Trustee to execute evidencing the foregoing and vesting in the successor
all such rights and powers and trusts hereunder.


SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.




     Any
Corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any Corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the



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corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.



SECTION 6.13 Preferential Collection of Claims Against Company.




     If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims (whether or not litigated) against the Company (or any such
other obligor).


SECTION 6.14 Trustee’s Application for Instructions from the Company.




     Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
the Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or omission of the Trustee
in accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than five Business Days after the date of any officer of
the Company actually receives such application, unless any such officer shall have consented in
writing to any earlier date), unless prior to taking any such action, or the effective date in the
case of any omission, the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.



ARTICLE VII




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


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




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



     (a) semi-annually,
not more than 15 calendar days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular
Record Date, and (b) at such other times as the Trustee may
request in writing, within 30 calendar days
after the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 calendar days prior to the time such list is furnished; excluding from any such list
names and addresses received by the Trustee in its capacity as Security Registrar.


SECTION 7.02 Preservation of Information; Communications to Holders.




     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in its



45









 




capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 7.01 upon receipt of a new list so furnished.




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



     (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to the names and addresses of Holders
made pursuant to Section 312 of the Trust Indenture Act.


SECTION 7.03 Reports by Trustee.




     (a) Within
60 calendar days after March 1 of each year commencing with the first March 1 after the
first issuance of the Securities, the Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant thereto.



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


SECTION 7.04 Reports by Company.




     (a) The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture
Act. The Trustee shall not be obligated to ensure that the Company files such information,
documents and other reports hereunder or complies with the provisions of the Trust Indenture Act
with respect thereto.



     (b) Delivery of such information, document or other reports to the Trustee is for
informational purposes only. The Trustee’s receipt thereof shall not constitute actual or
constructive notice of any information contained therein or determinable for any purpose
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to and shall have the right to conclusively rely on
Officer’s Certificates).



ARTICLE VIII




CONSOLIDATIONS, MERGERS AND CERTAIN SALES OF ASSETS



SECTION 8.01 The Company May Consolidate, Etc. Only on Certain Terms




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



46









 






     (i) consolidate with or merge with or into any other Person (whether or not the
Company is the surviving Person) or permit any other Person to consolidate or merge
with or into the Company, or




     (ii) directly or indirectly transfer, sell, lease or otherwise dispose of all
or substantially all of its assets, provided that the foregoing shall not prohibit
the chartering out of the Vessels in the ordinary course of business; unless,




(a) either (i) the Company is the surviving Person, or (ii) in a transaction
in which the Company does not survive or in which the Company sells, leases
or otherwise disposes of all or substantially all of its assets, the
successor entity to the Company or the Person to which such sale, lease or
disposition has been made is organized under the laws of Bermuda, the United
States or any State thereof or the District of Columbia or any other
Eligible Jurisdiction and such successor entity shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee, all of the Company’s obligations
under this Indenture;




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




(c) the Company has delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel stating that such consolidation, merger, conveyance,
transfer, lease or acquisition and such supplemental indenture complies with
this Indenture.



     (b) Subclause
(a)(ii)(b) of this Section 8.01 will not apply to any merger or
consolidation of the Company with any Affiliate solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction.


SECTION 8.02 Successor Substituted.




     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any transfer, conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 8.01 (in each such case the
successor entity shall be known as the “Successor Company”), the Successor Company shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.



47









 





ARTICLE IX




SUPPLEMENTAL INDENTURES


SECTION 9.01 Supplemental Indentures Without Consent of Holders.




     (a) Without the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:




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




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




     (3) to provide for the assumption of the Company’s obligations to Holders in the case
of a merger or consolidation or sale of all or substantially all of the Company’s assets, as
applicable;




     (4) to make any change that would provide any additional rights or benefits to Holders
(including granting of security for the benefit of Holders) or that does not adversely
affect the legal rights under this Indenture of any such Holder;




     (5) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




     (6) to conform the text of this Indenture or the Securities to any provision of the
“Description of Notes” section of the Prospectus Supplement to the extent that such
provision was intended by the Company to be a verbatim recitation of a provision of this
Indenture or the Securities; or




     (7) to provide for the issuance of Additional Securities in accordance with this
Indenture.


SECTION 9.02 Supplemental Indentures With Consent of Holders.




     (a) With the consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected thereby:




     (1) change the Stated Maturity of the principal amount of, or any installment of
interest on, any Security;



48









 






     (2) reduce the principal amount of, any premium payable, or the rate of interest on,
any Security;




     (3) change the currency of payment of principal, or premium, if any, or interest on,
any Security;




     (4) impair the right to institute suit for the enforcement of any such payment on, or
with respect to, any Security;




     (5) reduce the percentage of the aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is necessary to modify or amend this Indenture;




     (6) modify any provision of this Indenture relating to the modification or amendment of
the Indenture, except as otherwise specified in this Indenture; or




     (7) reduce the percentage of the aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and their consequences
provided for in this Indenture.



     (b) It shall not be necessary for any Act of Holders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.


SECTION 9.03 Execution of Supplemental Indentures.




     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Sections 6.01 and 6.03) shall
be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate stating that
the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.


SECTION 9.04 Effect of Supplemental Indentures.




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


SECTION 9.05 Conformity with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Securities executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as is then in effect.



49









 




SECTION 9.06 Reference in Securities to Supplemental Indentures.




     Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if requested by the Trustee, bear a notation in form
acceptable to the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Securities.



ARTICLE X




COVENANTS


SECTION 10.01 Payment of Principal Amount, Premium and Interest.




     The Company covenants and agrees for the benefit of the Holders that it will pay the principal
amount of (and premium, if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture. Principal, premium, if any, and
interest will be considered paid on the due date if the Paying Agent,
if other than the Company or Subsidiary thereof, holds as of
[10 a.m.] Eastern Time on the due date money deposited
by the Company in immediately available funds and designated for and
sufficient to pay principal, premium, if any, and interest then due.



SECTION 10.02 Payment of Additional Amounts




     If
any taxes, assessments or other governmental charges of any nature are imposed by any jurisdiction where
the Company or a successor of the Company (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 specified in such Security to which such Holder is entitled; provided, however, the
Payor will not be required to make any payment of Additional Amounts for or on account of:



     (A) any
tax, penalty, fine, duty, 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 calendar 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 within such 30-day period);



50









 





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



     (C) 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;



     (D) any withholding or deduction in respect of any Taxes where such withholding or deduction
is imposed or levied on a payment to an individual and is required to be made pursuant to European
Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN
Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing
or complying with, or introduced in order to conform to, such directive;



     (E) any
Taxes that are imposed or levied on or with respect to a payment made to a Holder or
beneficial owner who would have been able to avoid such withholding or deduction by presenting the
Securities to another Paying Agent in a member state of the European Union; or



     (F) 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 to any Holder who is a fiduciary or partnership or limited liability
company or other than the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the Relevant Tax Jurisdiction to be included in the income for tax purposes
of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited
liability company or beneficial owner who would not have been entitled to such Additional Amounts
had it been the Holder of such Security.




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



     The Company 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 in this Indenture (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 outside Bermuda or any jurisdiction in which a Paying
Agent is located, other than those resulting from, or required to be paid in connection with, the
enforcement of this Indenture or any other such document or instrument following the occurrence of
any Event of Default.



51









 





     The obligation to make payments of Additional Amounts with respect t the Securities will
survive any termination, defeasance or discharge of the Securities or this Indenture.



     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.


SECTION 10.03 Maintenance of Office or Agency.




     (a) The Company
will maintain an office or
agency where Securities may be presented or surrendered for payment, where 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 the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.



     (b) The Company
may also from time to time designate one or more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency for such purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.


SECTION 10.04 Money for Securities Payments to be Held in Trust.




     (a) If the Company shall at any time act as its own Paying Agent, it will, on or before each
due date of the principal amount of (and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal amount (and premium, if any) or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.



     (b) Whenever the Company shall have one or more Paying Agents, it will, prior to each due date
of the principal amount of (and premium, if any) or interest on any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal amount (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons entitled to such
principal amount, premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.



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     (c) The Company will cause each Paying Agent other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section 10.04, that such Paying Agent will:




     (1) hold all sums held by it for the payment of the principal amount of (and premium,
if any) or interest on Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein provided;




     (2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities) in the making of any payment of the principal amount (and premium, if any)
or interest; and




     (3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



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



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


SECTION 10.05 Corporate Existence.




     Subject to Article VIII, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors in good faith shall determine that the preservation thereof is



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no longer desirable in the conduct of the business of the Company and that the loss thereof is
not disadvantageous in any material respect to the Holders.



SECTION 10.06 Maintenance of Properties.




     The Company will cause all material properties used or useful in the conduct of its business
to be maintained and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section 10.06 shall prevent the
Company from discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith, desirable in the conduct
of its business and not disadvantageous in any material respect to the Holders.


SECTION 10.07 Payment of Taxes and Other Claims.




     The Company will pay or discharge or cause to be paid or discharged, (1) before the same shall
become delinquent, 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 (2) all material lawful claims for labor, materials and supplies which give rise to
a Lien or which, if unpaid, might by law become a Lien upon the property of the Company or any
Subsidiary, prior to the time the holder of such Lien evidences its intention to realize upon its
lien; 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.


SECTION 10.08 Maintenance of Insurance.




     The Company will maintain, and cause its Subsidiaries to maintain, insurance coverage by
financially sound and reputable insurers in such forms and amounts and against such risks as are at
that time customary for corporations of established reputation engaged in the same or a similar
business and owning and operating similar properties including general liability insurance and (but
without duplication) protection and indemnity insurance, hull and machinery insurance, oil
pollution insurance and, if available at commercially reasonable rates, loss of hire insurance.


SECTION 10.09 Limitation on Liens.




     The Company may not, directly or indirectly, create, Incur or assume any Lien on or with
respect to any property or assets, now owned or hereafter acquired, to secure any present or future
Designated Debt of the Company without making effective provision for securing the Securities:




     (1) in the event such Designated Debt is pari passu with the Securities, equally and
ratably with such Designated Debt as to such property or assets for so long as such
Designated Debt will be so secured, or



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     (2) in the event such Designated Debt is subordinate in right of payment to the
Securities, prior to such Designated Debt as to such property or assets for so long as such
Designated Debt will be so secured.



SECTION 10.10 Change of Control Triggering Event




     (a) Subject
to Section 10.10(c), within 30 calendar days of the occurrence of a Change of
Control Triggering Event, unless the Company has previously exercised its right to redeem all
Outstanding Securities under Section 11.01, the Company will be required to make a Change
of Control Offer for all Outstanding Securities at a purchase price equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date
of the repurchase.



     (b) A “Change of Control” will be deemed to occur at such time as either:




     (1) a “person” or “group” ( within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) becomes the ultimate “beneficial owner” ( as defined in Rule 13d-3 under the
Exchange Act and including by reason of any change in the ultimate “beneficial ownership” of
the Capital Stock of the Company) of more than 50% of the total voting power of the Voting
Stock of the Company (calculated on a fully diluted basis); or




     (2) individuals who at the beginning of any period of two consecutive calendar years
constituted the Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election was approved by a vote
of at least two-thirds of the members of such Board of Directors then still in office who
either were members of such Board of Directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any reason to
constitute at least 50% of the members of such Board of Directors then in office.



     (c) The Company will not be required to make a Change of Control Offer for any Securities upon
a Change of Control Triggering Event if (i) a third party makes the a Change of Control Offer upon
a Change of Control Triggering Event, as described in this Section 10.10, 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 upon a Change of Control Triggering Event made by the Company and
purchases all Securities properly tendered and not withdrawn under the Change of Control Offer upon
a Change of Control Triggering Event; or (ii) it has previously exercised its right to redeem all
of the Securities as described under Article XI in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture.



     (d) If the Company fails to make the Change of Control Offer or fails to pay the purchase
price and accrued interest described above on the date specified therefor, the Trustee and the
Holders of Securities will have the rights described under Sections 5.02 and 5.03.



     (e) In the event that the Company makes a Change of Control Offer for the Securities, the
Company shall comply with any applicable securities laws and regulations, including any applicable
requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act.



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SECTION
10.11 Commission Reports.




     (a) The Company shall, for so long as any of the Securities remain outstanding, file with the
Commission (so long as the Commission will accept such filing) and
the Trustee (a) all such reports
and other information which the Company would have been required to file with (and in such form as
is required by) the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provision thereto applicable to a “foreign private issuer,” as that term is defined in
Rule 3b-4 under the Exchange Act, such documents to be filed with the Commission on or prior to the
respective dates (the “Required Filing Dates”) by which the Company would be required so to file
such documents and (b) whether or not required pursuant to the immediately preceding clause, (i)
within 120 calendar days following the end of each fiscal year of the Company, annual reports on
Form 20-F (or any successor form) containing the information required to be contained therein (or
required in such successor form); and (ii) within 60 calendar days after the end of each of the
first three fiscal quarters of each fiscal year of the Company, reports on Form 6-K (or any
successor form), containing unaudited financial statements (including a balance sheet and statement
of income, changes in stockholders’ equity and cash flows) and Management’s Discussion and Analysis
of Financial Condition and Results of Operations for and as of the end of each such quarter (with
comparable financial statements for such quarter in the immediately preceding fiscal year). The
Company shall also in any event (a) within 15 calendar days of each Required Filing Date, as
applicable, request that the Trustee transmit such documents by mail
to all Holders, as their names
and addresses appear in the Security register, without cost to such holders, and (b) if filing such
documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon
written request supply copies of such documents to any prospective Holder. Notwithstanding
anything to the contrary, if the Company is not subject to the reporting requirements of such
Section 13(a) or 15(d) of the Exchange Act, the Company shall be deemed to have satisfied this
covenant by supplying all of the foregoing information to the Trustee and making all such
information publicly available on the Company’s website.




     (b) Notwithstanding the foregoing, the Company will be deemed to have furnished such reports
referred to in the preceding paragraph of this covenant to the
Trustee and the Holders of the
Securities if the Company has filed such reports with the Commission via the EDGAR filing system
(or any successor system) and such reports are publicly available.


SECTION 10.12 Statement By Officers as to Default; Compliance Certificates.




     (a) The
Company will deliver to the Trustee, within 120 calendar days after the end of each fiscal year
(which is currently December 31), of the Company ending after the date hereof an Officer’s
Certificate, stating that, after conducting a review of the activities of the Company and



56









 




its Subsidiaries and of the Company’s and its Subsidiaries performance under this Indenture,
the Company has fulfilled all obligations thereunder, or whether the Company is in default in the
performance and observance of any of the terms, provisions and conditions of this Indenture, and if
the Company shall be in default, specifying all such defaults and the nature and status thereof of
which it has knowledge.




     (b) The Company shall deliver to the Trustee, as soon as possible and in any event within 10
calendar days after the Company becomes aware of the occurrence of an Event of Default or an event which,
with notice or the lapse of time or both, would constitute an Event of Default, an Officer’s
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 10.13 Waiver of Certain Covenants.




     The Company may omit in any particular instance to comply with any covenant or condition set
forth in Section 8.01, Sections 10.05 to 10.12(a), inclusive, and, if
before the time for such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect; provided, however,
with respect to a Change of Control Offer as to which an Offer has been mailed, no such waiver may
be made or shall be effective against any Holder tendering Securities pursuant to such Offer, and
the Company may not omit to comply with the terms of such Offer as to such Holder.


SECTION 10.14 Payments for Consent.




     The Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of the 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 solicitation documents relating to such
consent, waiver or agreement.




SECTION
10.15 Affiliate Transactions.



      (1) The Company shall not directly, or indirectly through a Subsidiary, 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:



     (a) the terms of such Affiliate Transaction are no less favorable to the Company than those that
reasonably 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 as reasonably determined by the Company;



     (b) in the event such Affiliate Transaction involves an aggregate amount in excess of $25.0
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 material
direct or indirect interest (other than with respect to the Company) 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



     (c) in the event such Affiliate Transaction involves an aggregate amount in excess of $50.0
million, the Company has received a written opinion from an independent investment banking firm of
recognized standing in the shipping industry, offshore drilling industry or other industry to which
such opinion relates (or, in the case of Vessels, two 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.



     (2) The preceding paragraph will not apply to:



     (a) 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 in the ordinary course of business to or with officers, directors, consultants
or employees of the Company;



     (b) any transaction between the Company and a Subsidiary or between Subsidiaries;



     (c) the issuance or sale of any Capital Stock of the Company or a Subsidiary or any contribution to
the capital of the Company or a Subsidiary;



     (d) the performance of obligations of the Company or a Subsidiary under the terms of any agreement
to which the Company or such Subsidiary is a party on the date of the indenture as such agreement
may be amended, modified or supplemented from time to time (other than any amendment, modification
or supplement that would effect a material change to any such agreement); and



     (e) any charters or vessel management agreements entered into with Affiliates on terms that are
substantially similar to then existing charters or management agreements with such Affiliate that
are on terms no less favorable to the Company than those that reasonably 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, as reasonably determined by the Company.



     (f) the payment of dividends in respect of any class of equity interests on a pro rata basis to all
holders of such class.




ARTICLE XI




REDEMPTION OF SECURITIES


SECTION 11.01 Right of Redemption.




     (a) At any time and from time to time prior to [     ], the Company, at its option, may
redeem up to 35% of the aggregate principal amount of the Securities issued under this Indenture
with the net cash proceeds of one or more Qualified Equity Offerings at a Redemption Price equal to
[     ]% of the principal amount of the Securities to be redeemed, plus accrued and unpaid interest
thereon, if any, to the Redemption Date; provided that



57









 






     (i) at least 65% of the aggregate principal amount of Securities issued under
this Indenture remains outstanding immediately after the occurrence of such
redemption; and




     (ii) the redemption occurs within 60 calendar days of the date of the closing
of any such Qualified Equity Offering.



     (b) At the Company’s option, the Company may redeem the Securities in whole or in part at any
time and from time to time prior to Maturity upon not less than 30 nor more than 60 calendar days’
prior notice at a Redemption Price equal to the greater of (i) 100% of the principal amount of the
Securities to be redeemed and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities to be redeemed (excluding the portion of any
such interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield (as
defined below), plus 50 basis points, plus, in each case, accrued and unpaid interest to the
Redemption Date.



     (c) The Payor may redeem all, but not less than all, of the Securities 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 10.01, and the
payment of such Additional Amounts cannot be avoided by the use of any reasonable measures
available to the Payor; provided that the Board of Directors of the Company determines in good
faith that the aggregate amount of such Additional Amounts would create additional annual costs in
excess of 0.50% of the aggregate principal amount of Securities then outstanding. In the case of
the Company, the Change in Tax Law must become effective on or after
the date of the Prospectus Supplement. In the case of a successor of the Company, 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
calendar days before the applicable Redemption Date an Opinion of Counsel 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 calendar
days and no more than 60 calendar days before the applicable Redemption Date. The Redemption Price
will equal the principal amount of the Securities 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 11.02 Mandatory Redemption.




     The Company is not required to make sinking fund payments or mandatory redemption payments
prior to maturity with respect to the Securities.



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SECTION 11.03 Applicability of Article.




     Redemption of Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such provision and this
Article.


SECTION 11.04 Election to Redeem; Notice to Trustee.




     The election of the Company to redeem the Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company, the Company shall, not less
than 30 calendar days nor more than 60 calendar days prior to the Redemption Date fixed by it
(unless a shorter notice period of less than 60 calendar days but not less than 30 days shall be satisfactory to the Trustee), furnish to the Trustee an
Officer’s Certificate setting forth (i) the Redemption Date, (ii) the clause of the Indenture
pursuant to which the redemption shall occur, (iii) the Redemption Price and (iv) the principal
amount of Securities to be redeemed.


SECTION 11.05 Selection by Trustee of Securities to Be Redeemed.




     (a) If less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 calendar days prior to the Redemption Date by the Trustee, from
the Outstanding Securities not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate, including on a pro rata basis or by lot; 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. Securities and any portions of such Securities selected by the
Trustee shall be in amounts of $2,000 or integral multiples of $1,000 in excess thereof.



     (b) 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.



     (c) 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 11.06 Notice of Redemption.




     Notice
of redemption shall be given not less than 30 nor more than 60 calendar days prior to the
Redemption Date, to each Holder of Securities to be redeemed, by electronic transmission, in the
case of Securities that are held in the form of Global Securities, or by first class mail to each
Holder who holds certificated Securities at such Holder’s address appearing in the Security
Register; provided that, notice of redemption may be given
more than 60 calendar days prior to the
Redemption Date if such notice is issued in connection with a defeasance of the Securities in
accordance with Article XII hereof or a satisfaction and discharge of this Indenture in accordance
with Article IV hereof.



     All notices of redemption shall state:



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     (a) the principal amount of each Security held by such Holder to be redeemed;



     (b) the Redemption Date;



     (c) the Redemption Price;



     (d) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security, and that interest thereon shall cease to accrue on and after said date;



     (e) the CUSIP and ISIN number, subject to Section 3.11 hereof;



     (f) if redemption is made pursuant to Section 11.01(b), the calculation of the
Redemption Price as determined by the Company;



     (g) if fewer than all of the Outstanding Securities are to be redeemed, then the
identification and principal amounts at Maturity of the particular Securities to be redeemed; and



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



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at their request, by the Trustee in the name and at the expense of the
Company, provided however, that the Company has delivered to the Trustee, at least 45 days prior to the redemption date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.



     If any of the Securities to be redeemed is in the form of a Global Security, then the Company
shall modify such notice to the extent necessary to conform with the procedures of the Depositary
applicable to such redemption.


SECTION 11.07 Deposit of Redemption Price.




     On or prior to any Redemption Date, provided if on the Redemption Date prior to [10:00 A.M. EST], the Company shall deposit or cause to be deposited 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 10.04) an amount of money in same day funds (or
New York Clearing House funds if such deposit is made prior to the applicable Redemption Date)
sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.


SECTION 11.08 Securities Payable on Redemption Date.




     (a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price therein specified and
from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price together with accrued interest to the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more



60









 




Predecessor Securities, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 3.07.




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


SECTION 11.09 Securities Redeemed in Part.




     Any Security that is to be redeemed only in part shall be surrendered to the Paying Agent at
the office of the Paying Agent or to the office or agency referred to in Section 10.03
(with, if the Company or the Trustee so require, 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
shall authenticate and deliver to the Holder of such Security, without service charge, a
replacement Security or Securities, of any authorized denomination as requested by such Holder in
an aggregate principal amount equal to, and in exchange for, the principal amount of the Security
so surrendered that is not redeemed.



ARTICLE XII




LEGAL DEFEASANCE AND COVENANT DEFEASANCE


SECTION 12.01 Company’s Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may at its option by Board Resolution, at any time, elect to have either
Section 12.02 or Section 12.03 applied to the Outstanding Securities upon
compliance with the conditions set forth below in this Article XII.


SECTION 12.02 Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 12.01 of the option applicable to this
Section 12.02, the Company will, subject to the satisfaction of the conditions set forth in
Section 12.04, be deemed to have been discharged from their obligations with respect to all
Outstanding Securities on the date the conditions set forth below are satisfied (hereinafter,
“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to
have paid and discharged the entire Indebtedness represented by the Outstanding Securities and to
have satisfied all its other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall survive until otherwise
terminated or discharged hereunder:




     (1) the rights of Holders of outstanding Securities to receive, solely from the trust
fund described in Section 12.04 and as more fully set forth in such Section,
payments in respect of the principal amount of (and premium, if any) and interest on such
Securities when such payments are due;



61









 






     (2) the Company’s obligations with respect to such Securities under Sections
3.04, 3.05, 3.06, 10.03 and 10.04;




     (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith; and




     (4) this Article XII.



     Subject to compliance with this Article Twelve, the Company may exercise its option under this
Section 12.02 notwithstanding the prior exercise of its option under Section 12.03.


SECTION 12.03 Covenant Defeasance.




     Upon the Company’s exercise of the option provided in Section 12.01 applicable to this
Section 12.03, (a) the Company shall be released from its obligations under Sections
10.06 through 10.15, inclusive, and clauses (2) and (3) of Section
8.01(a), (b) the occurrence of an event specified in Sections 5.01(a)(3),
5.01(a)(4) (with respect to any of Sections 10.06 through 10.15,
inclusive), 5.01(a)(5), 5.01(a)(6) and 5.01(a)(8) shall not be deemed to be
an Event of Default (hereinafter, “Covenant Defeasance”) and the Securities will thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act
of Holders (and the consequences of any thereof) in connection with such covenants, but will
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such
Securities will not be deemed outstanding for accounting purposes). For this purpose, such
Covenant Defeasance means that the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section, Clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to any such Section,
Clause or Article or by reason of any reference in any such Section, Clause or Article to any other
provision herein or in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.


SECTION 12.04 Conditions to Legal Defeasance or Covenant Defeasance.




     (a) In order to exercise either Legal Defeasance or Covenant Defeasance under either
Section 12.02 or 12.03:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in United States dollars, non-callable Government Securities, or a
combination of cash in United States dollars and non-callable Government Securities, in such
amounts as will be sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm, or firm of independent public accountants, to pay the principal of, premium
and additional interest, if any, and interest on, the outstanding Securities on the stated
date for payment thereof or on the applicable Redemption Date, as the case may be, and the
Company must specify whether the Securities are being defeased to such stated date for
payment or to a particular Redemption Date;




     (2) in the case of an election under Section 12.02, the Company must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that:



62









 






     (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 of the outstanding Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;




     (3) in the case of an election under Section 12.03, the Company must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;




     (4) no Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other Debt and, in each
case, the granting of Liens in connection therewith) shall have occurred and be continuing
on the date of such deposit;




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than the Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;




     (6) the Company must deliver to the Trustee an Opinion of Counsel to the effect that
the trust funds will not be subject to the effect of the preference provisions of
Section 547 of the United States Federal Bankruptcy Code;




     (7) the Company must deliver to the Trustee an Officer’s Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders over the other
creditors of the Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and




     (8) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.


SECTION 12.05 Deposited Money and United States Government Securities to be Held in Trust; Other
Miscellaneous Provisions.




     (a) Subject to the provisions of the last paragraph of Section 10.04, all money and
United States Government Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively, for purposes of this Section 12.05, the “Trustee”)



63









 




pursuant to Section 12.04 in respect of the Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest, but such money
need not be segregated from other funds except to the extent required by law.




     (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the United States Government Securities deposited pursuant to
Section 12.04 or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the Outstanding
Securities.



     (c) Anything in this Article XII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or United States Government
Securities held by it as provided in Section 12.04 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 an equivalent defeasance or covenant defeasance.


SECTION 12.06 Reinstatement.




     If the Trustee or the Paying Agent is unable to apply any money in accordance with Section
12.02 or 12.03 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then the Company’s
obligations under this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article XII until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 12.02 or 12.03;
provided, however, that if the Company makes any payment of principal amount of (and premium, if
any) or interest on any Security following 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 held by the Trustee or the Paying Agent.



 






     This Indenture may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



64









 





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



	 	 	 	 	 
	 	COMPANY



SHIP FINANCE INTERNATIONAL LIMITED

 	 
	 	By:  	/s/
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TRUSTEE



WILMINGTON TRUST FSB, as Trustee

 	 
	 	By:  	                /s/
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



65









 






	 	 	 	 	 




     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, 55 WATER STREET, NEW YORK, NEW YORK 10004, 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE & CO., AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



66









 





CUSIP [     ]




ISIN [     ]




[     ]% Senior Notes due [     ]




			
	 No. 1
	 	$[     ]






SHIP
FINANCE INTERNATIONAL, LIMITED




promises to pay to CEDE & Co., or registered assigns, the principal sum of [
          
          
          ] on [     ].

Interest Payment Dates: [     ] and [     ]

Regular Record Dates: [     ] and [     ]




	 	 	 	 	 

	 	 	SHIP FINANCE
INTERNATIONAL LIMITED
	 
	 	 	 	 
	Dated:

	 	By:
	 	/s/
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






TRUSTEE CERTIFICATE OF AUTHENTICATION




     This is one of the [     ]% Senior Notes due [     ] referred to in the
within-mentioned Indenture.



	 	 	 	 	 

	 	 	WILMINGTON TRUST FSB,

as Trustee


	Dated:

	 	By:
	 	/s/
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






67









 






[Back of Security]

[     ]% Senior Notes due [     ]




     Capitalized terms used herein have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




     (1) Interest. Ship Finance International, Ltd., a Bermuda
exempted (the “Company”), promises to pay interest on the principal amount of this
Security at [     ]% per annum from [     ] until maturity. The Company will pay interest
semi-annually in arrears on [     ] and [     ] of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each, an “Interest Payment
Date”). Interest on the Securities will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date
(other than the authentication of the Securities originally issued under the Indenture);
provided further that the first Interest Payment Date shall be [     ]. The Company will
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. “Bankruptcy Law” means Title 11 of the U.S. Code or
any similar federal or state law for the relief of debtors.




     (2) Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the [     ] or [     ] next preceding the Interest
Payment Date (each a “Regular Record Date”), even if such Securities are canceled after such
record date and on or before such Interest Payment Date, except as provided in the Indenture
with respect to defaulted interest. The Securities will be payable as to principal,
premium, if any, and interest at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of the Company,
payment of interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium on, all Global
Securities and all other Securities the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be in such coin or
currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.




     (3)
Paying Agent and
Registrar. Initially, Wilmington Trust FSB,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in any such capacity.



68









 






     (4) Indenture. The Company issued the Securities under an Indenture
dated as of [     ], 2010 (the “Indenture”) between the Company 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 TIA. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of such terms. To the extent any
provision of this Security conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Securities are unsecured
obligations of the Company. The Indenture does not limit the aggregate principal amount of
Securities that may be issued thereunder.




     (5) Optional Redemption.



     (a) At any time and from time to time prior to [     ], the Company, at its option, may redeem
up to 35% of the aggregate principal amount of the Securities issued under the Indenture with the
net cash proceeds of one or more Qualified Equity Offerings at a Redemption Price equal to [     ]%
of the principal amount of the Securities to be redeemed, plus accrued and unpaid interest thereon,
if any, to the Redemption Date; provided that




          (1) at least 65% of the aggregate principal amount of Securities issued under
this Indenture remains outstanding immediately after the occurrence of such
redemption; and




          (2) the redemption occurs within 60 days of the date of the closing of any such
Qualified Equity Offering.



     (b) At the Company’s option, the Company may redeem the Securities in whole or in part at any
time and from time to time prior to maturity upon not less than 30
nor more than 60 calendar days’ prior
notice at a Redemption Price equal to the greater of (i) 100% of the principal amount of the
Securities to be redeemed and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities to be redeemed (excluding the portion of any
such interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield, plus
50 basis points, plus, in each case, accrued and unpaid interest to the Redemption Date.




     (6) Mandatory Redemption. The Company is not required to make
mandatory redemption or sinking fund payments with respect to the Securities.




     (7) Repurchase at the Option of Holder. If there is a Change of
Control Trigger Event, the Company will be required to make a Change of Control Offer as set
forth in the Indenture to each Holder to repurchase all or any part of each Holder’s
Securities at a purchase price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest thereon to the date of purchase, subject to the
rights of Holders on the relevant record date to receive interest due on the relevant
interest payment date.




     (8) Notice of Redemption. Notice of redemption will be mailed at
least 30 calendar days but not more than 60 calendar days before the Redemption Date to each



69









 







Holder whose Securities are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 calendar days prior to a Redemption Date if
the notice is issued in connection with a defeasance of the Securities or a satisfaction or
discharge of the Indenture.




     (9) Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $2,000 and integral multiples of $1,000
in excess thereof. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Security or
portion of a Security selected for redemption, except for the unredeemed portion of any
Security being redeemed in part. Also, the Company need not exchange or register the
transfer of any Securities for a period of 15 calendar days before a selection of Securities
to be redeemed or during the period between a record date and the corresponding Interest
Payment Date.




     (10) Persons Deemed Owners. The registered Holder of a Security may
be treated as its owner for all purposes.




     (11) Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in aggregate principal amount of the then outstanding
Securities including Additional Securities, if any, voting as a single class, and any
existing Default or Event or Default or compliance with any provision of the Indenture or
the Securities may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Securities including Additional Securities, if any,
voting as a single class. Without the consent of any Holder of a Security, the Indenture or
the Securities may be amended or supplemented to (i) to cure any ambiguity, defect or
inconsistency; (ii) to provide for uncertificated Securities in addition to or in place of
certificated Securities; (iii) to provide for the assumption of the Company’s obligations to
Holders in the case of a merger or consolidation or sale of all or substantially all of the
Company’s assets, as applicable; (iv) to make any change that would provide any additional rights
or benefits to Holders (including granting of security for the benefit of Holders) or that
does not adversely affect the legal rights under the Indenture of any
such Holder; (v) to comply
with requirements of the SEC in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act; (vi) to conform the text of this Indenture or the
Securities to any provision of the “Description of Notes” section of the Prospectus
Supplement to the extent that such provision was intended by the Company to be a verbatim
recitation of a provision of the Indenture or the Securities; or (vii) to provide for the issuance
of Additional Securities in accordance with this Indenture.




     (12) Defaults and Remedies. The Events of Default include those
specified in Section 5.01 of the Indenture. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities may declare all the Securities to be due and payable



70









 







immediately. Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all outstanding Securities will become due
and payable immediately without further action or notice. Holders may not enforce the
Indenture or the Securities except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Securities notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or interest or
premium, if any,) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the then outstanding Securities by
notice to the Trustee may, on behalf of the Holders of all of the Securities, rescind an
acceleration or waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of interest or
premium, if any, on, or the principal of, the Securities.




     (13) Trustee Dealings with Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.




     (14) No Recourse Against Others. A director, officer, employee,
incorporator or stockholder of the Company, as such, will not have any liability for any
obligations of the Company under the Securities or the Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.




     (15) Authentication. This Security will not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.




     (16) Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




     (17) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities, and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in any notice of
redemption, and reliance may be placed only on the other identification numbers placed
thereon.




     (18) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS SECURITY WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF



71









 







CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:


Ship
Finance International, Limited







72









 








Assignment Form



     To assign this Security, fill in the form below:




	 	 	 

	(I) or (we) assign and transfer this Security to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)





 




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




 





 





 




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



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



Date:          
           




	 	 	 	 	 

	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face of this Security)





Signature Guarantee*:       
                   
               






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




73









 









Option of Holder to Elect Purchase




     If you want to elect to have this Security purchased by the Company pursuant to [Section
10.10] of the Indenture, check the following box below:



o [Section 10.10]




If you want to elect to have only part of the Security purchased by the Company pursuant to [Section 10.10] of the

Indenture, state the amount you elect to have purchased:



$         
           


Date:          
           




	 	 	 	 	 

	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face
of this Security)






	 	 	 	 	 

	 

	 	Tax Identification No.:	 	 
	 

	 	 	 	 




Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).




74









 










SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY




     The following exchanges of a part of this Global Security for an interest in another
Global Security or for a definitive Security, or exchanges of a part of another Global Security or
definitive Security for an interest in this Global Security, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	 	 	 	 	at maturity of this	 	 
	 	 	Amount of decrease	 	Amount of increase	 	Global Security	 	 
	 	 	in Principal Amount	 	in Principal Amount	 	following such	 	Signature of
	 	 	at maturity of	 	at maturity of	 	decrease	 	authorized officer of
	Date of Exchange	 	this Global Security	 	this Global Security	 	(or increase)	 	Trustee or Custodian
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 






75