exv10w2






Exhibit 10.2




Execution Version




TRICO MARINE SERVICES, INC.




8.125% Secured Convertible Debentures due 2013




INDENTURE




Dated as of May  , 2009




Wells Fargo Bank, National Association, Trustee




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01 Definitions
	 	 	1	 
	SECTION 1.02 Incorporation by Reference of Trust Indenture Act
	 	 	17	 
	SECTION 1.03 Rules of Construction
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 2 THE DEBENTURES
	 	 	18	 
	 
	 	 	 	 
	SECTION 2.01 Designation, Amount and Issuance of Debentures
	 	 	18	 
	SECTION 2.02 Form of the Debentures
	 	 	18	 
	SECTION 2.03 Date and Denomination of Debentures;
Payment at Maturity; Payment of Interest
	 	 	19	 
	SECTION 2.04 Execution and Authentication
	 	 	20	 
	SECTION 2.05 Registrar and Paying Agent
	 	 	20	 
	SECTION 2.06 Paying Agent to Hold Money in Trust
	 	 	21	 
	SECTION 2.07 Debentureholder Lists
	 	 	21	 
	SECTION 2.08 Exchange and Registration of
Transfer of Debentures; Restrictions
on Transfer
	 	 	21	 
	SECTION 2.09 Replacement Debentures
	 	 	26	 
	SECTION 2.10 Outstanding Debentures
	 	 	27	 
	SECTION 2.11 Temporary Debentures
	 	 	27	 
	SECTION 2.12 Cancellation
	 	 	28	 
	SECTION 2.13 CUSIP and ISIN Numbers
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 3 REDEMPTION AND REPURCHASE OF DEBENTURES
	 	 	28	 
	 
	 	 	 	 
	SECTION 3.01 Optional Redemption of Debentures
	 	 	28	 
	SECTION 3.02 Company Redemption Election Notice;
Selection of Debentures to be Redeemed
	 	 	28	 
	SECTION 3.03 Payment of Debentures Called for Redemption
	 	 	30	 
	SECTION 3.04 Repurchase at Option of Holders Upon a Fundamental Change
	 	 	31	 
	SECTION 3.05 Company Repurchase Notice
	 	 	33	 
	SECTION 3.06 Effect of Repurchase Notice; Withdrawal
	 	 	34	 
	SECTION 3.07 Deposit of Repurchase Price
	 	 	35	 
	SECTION 3.08 Debentures Repurchased in Part
	 	 	35	 
	SECTION 3.09 Repayment of Debentures Upon Asset Sale
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	35	 
	 
	 	 	 	 
	SECTION 4.01 Payment of Debentures
	 	 	35	 
	SECTION 4.02 Maintenance of Office or Agency
	 	 	35	 
	SECTION 4.03 144A Information
	 	 	36	 
	SECTION 4.04 Existence
	 	 	36	 






 









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 4.05 Payment of Taxes and Other Claims
	 	 	36	 
	SECTION 4.06 Compliance Certificate
	 	 	37	 
	SECTION 4.07 Further Instruments and Acts
	 	 	37	 
	SECTION 4.08 Intentionally Omitted
	 	 	37	 
	SECTION 4.09 Additional Interest Notice
	 	 	37	 
	SECTION 4.10 Reporting Obligation
	 	 	37	 
	SECTION 4.11 Limit on Incurring Additional Indebtedness and Liens
	 	 	38	 
	SECTION 4.12 Changes to 2027 Convertible Debentures
	 	 	38	 
	SECTION 4.13 Restrictions on Certain Transfers
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 5 SUCCESSOR COMPANY
	 	 	39	 
	 
	 	 	 	 
	SECTION 5.01 When Company May Merge or Transfer Assets
	 	 	39	 
	SECTION 5.02 Successor to be Substituted
	 	 	39	 
	SECTION 5.03 Opinion of Counsel to be Given Trustee
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES
	 	 	40	 
	 
	 	 	 	 
	SECTION 6.01 Events of Default
	 	 	40	 
	SECTION 6.02 Acceleration
	 	 	42	 
	SECTION 6.03 Other Remedies
	 	 	43	 
	SECTION 6.04 Waiver of Past Defaults
	 	 	43	 
	SECTION 6.05 Control by Majority
	 	 	43	 
	SECTION 6.06 Limitation on Suits
	 	 	43	 
	SECTION 6.07 Rights of Debentureholders to Receive Payment
	 	 	44	 
	SECTION 6.08 Collection Suit by Trustee
	 	 	44	 
	SECTION 6.09 Trustee May File Proofs of Claim
	 	 	44	 
	SECTION 6.10 Priorities
	 	 	44	 
	SECTION 6.11 Undertaking for Costs
	 	 	45	 
	SECTION 6.12 Waiver of Stay, Extension or Usury Laws
	 	 	45	 
	SECTION 6.13 Sole Remedy for Failure to Report
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 7 TRUSTEE
	 	 	46	 
	 
	 	 	 	 
	SECTION 7.01 Duties of Trustee
	 	 	46	 
	SECTION 7.02 Rights of Trustee
	 	 	47	 
	SECTION 7.03 Individual Rights of Trustee
	 	 	48	 
	SECTION 7.04 Trustee’s Disclaimer
	 	 	48	 
	SECTION 7.05 Notice of Defaults
	 	 	48	 
	SECTION 7.06 Reports by Trustee to Debentureholders
	 	 	48	 
	SECTION 7.07 Compensation and Indemnity
	 	 	48	 
	SECTION 7.08 Replacement of Trustee
	 	 	49	 
	SECTION 7.09 Successor Trustee by Merger
	 	 	50	 
	SECTION 7.10 Eligibility; Disqualification
	 	 	50	 
	SECTION 7.11 Preferential Collection of Claims Against Company
	 	 	50	 
	 
	 	 	 	 





 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 8 DISCHARGE OF INDENTURE
	 	 	51	 
	 
	 	 	 	 
	SECTION 8.01 Discharge of Liability on Debentures
	 	 	51	 
	SECTION 8.02 Application of Trust Money
	 	 	51	 
	SECTION 8.03 Repayment to Company
	 	 	51	 
	SECTION 8.04 Reinstatement
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 9 AMENDMENTS
	 	 	52	 
	 
	 	 	 	 
	SECTION 9.01 Without Consent of Debentureholders
	 	 	52	 
	SECTION 9.02 With Consent of Debentureholders
	 	 	53	 
	SECTION 9.03 Compliance with Trust Indenture Act
	 	 	54	 
	SECTION 9.04 Revocation and Effect of Consents and Waivers
	 	 	54	 
	SECTION 9.05 Notation on or Exchange of Debentures
	 	 	55	 
	SECTION 9.06 Trustee to Sign Amendments
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 10 CONVERSION OF DEBENTURES
	 	 	55	 
	 
	 	 	 	 
	SECTION 10.01 Right to Convert
	 	 	55	 
	SECTION 10.02 Exercise of Conversion Right; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends
	 	 	56	 
	SECTION 10.03 Cash Payments in Lieu of Fractional Shares
	 	 	58	 
	SECTION 10.04 Conversion Rate
	 	 	58	 
	SECTION 10.05 Adjustment of Conversion Rate
	 	 	60	 
	SECTION 10.06 Effect of Reclassification, Consolidation, Merger or Sale
	 	 	67	 
	SECTION 10.07 Taxes on Shares Issued
	 	 	69	 
	SECTION 10.08 Reservation of Shares, Shares to be Fully Paid;
Compliance with Governmental Requirements;
Listing of Common Stock
	 	 	69	 
	SECTION 10.09 Responsibility of Trustee
	 	 	70	 
	SECTION 10.10 Notice to Holders Prior to Certain Actions
	 	 	70	 
	SECTION 10.11 Stockholder Rights Plans
	 	 	71	 
	SECTION 10.12 Settlement Upon Conversion
	 	 	71	 
	SECTION 10.13 Conversion After a Public Acquirer Change of Control
	 	 	72	 
	SECTION 10.14 Limitations on Foreign Ownership
	 	 	73	 
	SECTION 10.15 Conversion Limitation
	 	 	73	 
	 
	 	 	 	 
	ARTICLE 11 MISCELLANEOUS
	 	 	74	 
	 
	 	 	 	 
	SECTION 11.01 Trust Indenture Act Controls
	 	 	74	 
	SECTION 11.02 Notices
	 	 	74	 
	SECTION 11.03 Communication by Debentureholders with Other
Debentureholders
	 	 	75	 
	SECTION 11.04 Certificate and Opinion as to Conditions Precedent
	 	 	75	 
	SECTION 11.05 Statements Required in Certificate or Opinion
	 	 	75	 
	SECTION 11.06 When Debentures Disregarded
	 	 	76	 
	SECTION 11.07 Rules by Trustee, Paying Agent and Registrar
	 	 	76	 
	SECTION 11.08 Legal Holidays
	 	 	76	 
	SECTION 11.09 Governing Law
	 	 	76	 






 









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 11.10 No Interpretation of or by Other Agreements
	 	 	76	 
	SECTION 11.11 Successors
	 	 	76	 
	SECTION 11.12 Multiple Originals
	 	 	76	 
	SECTION 11.13 Table of Contents; Headings
	 	 	76	 
	SECTION 11.14 Indenture and Debentures Solely Corporate Obligations
	 	 	77	 
	SECTION 11.15 Severability
	 	 	77	 
	SECTION 11.16 Benefits of Indenture
	 	 	77	 
	SECTION 11.17 Calculations
	 	 	77	 
	SECTION 11.18 Turnover of Proceeds
	 	 	77	 
	 
	 	 	 	 
	ARTICLE 12 SECURITY
	 	 	78	 
	 
	 	 	 	 
	SECTION 12.01 Grant of Security Interest; Remedies
	 	 	78	 
	SECTION 12.02 Recording and Opinions
	 	 	79	 
	SECTION 12.03 Release of Collateral
	 	 	79	 
	SECTION 12.04 Rights of Purchasers; Form and Sufficient of Release
	 	 	80	 
	SECTION 12.05 Additional Collateral
	 	 	80	 






Exhibit A — Form of Debenture




Exhibit B — Form of Restrictive Legend for Common Stock Issued Upon Conversion




 









 





     INDENTURE dated as of May  , 2009, between TRICO MARINE SERVICES, INC., a Delaware
corporation (the “Company”), and Wells Fargo Bank, National Association, as trustee (the
“Trustee”).



     WHEREAS, the Company has duly authorized the creation of an issue of its 8.125% Secured
Convertible Debentures due 2013 (the “Debentures”), having the terms, tenor, amount and other
provisions hereinafter set forth, and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture; and



     WHEREAS, all things necessary to make the Debentures, when the Debentures are duly executed by
the Company and authenticated and delivered hereunder and duly issued by the Company, the valid
obligations of the Company, and to make this Indenture a valid and binding agreement of the
Company, in accordance with its terms, have been done and performed, and the execution of this
Indenture and the issue hereunder of the Debentures have in all respects been duly authorized,



     NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the
purchase of the Debentures by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debentures, as follows:



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE




     SECTION 1.01 Definitions.



     “Additional Interest” has the meaning specified for Additional Interest in Section 6.13
hereof.



     “Additional Interest Notice” has the meaning specified in Section 4.09.



     “Additional Shares” has the meaning specified in Section 10.04(b).



     “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” has the meaning specified in Section 2.08(b).



     “Applicable Consideration” has the meaning specified in Section 10.06(c).



     “Asset Sale” means any transaction, or series of related transactions, pursuant to which the
Company or any of its Subsidiaries directly or indirectly sells, issues, conveys, transfers,
exchanges, leases (other than operating leases and charters entered into in the ordinary course of
business consistent with past practices), assigns or otherwise transfers for value to any Person



1









 




(other than (i) with respect to an Asset Sale of Collateral, the Company or any of its
Subsidiaries that is a Guarantor or (ii) with respect to an Asset Sale that does not involve
Collateral, the Company or any of its Subsidiaries) any property or assets (including any interests
therein), whether now owned or hereinafter acquired, of the Company or any of its Subsidiaries;
provided, however, that the following will not be deemed to be an Asset Sale: (i)
the sale of the vessel Northern Gambler and related assets, (ii) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets of the Company in a
transaction which is made in compliance with Article 5 herein and (iii) the sale, lease,
conveyance, disposition or other transfer by the Company or any of its Subsidiaries of inventory in
the ordinary course of business; provided, further, that an Event of Loss will be
deemed an Asset Sale.




     “Bankruptcy Law” has the meaning specified in Section 6.01.



     “Board of Directors” means the Board of Directors of the Company or, other than in the case of
the definition of “Continuing Directors,” any committee thereof duly authorized to act on behalf of
such Board of Directors.



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



     “Capital Stock” of any Person means any and all shares, participations or other interests in
(however designated) equity of such Person, excluding any debt securities convertible into such
equity.



     “Capitalized Lease Obligations” means, with respect to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to
use) real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP and,
for purposes hereof, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.



     “Cash Equivalents” means, as to any Person, (i) (x) Dollars and (y) in the case of any Foreign
Subsidiary of the Company, Euros and such local currencies held by any such Foreign Subsidiary from
time to time in the ordinary course of its business, (ii) securities issued or directly and fully
guaranteed or insured by (x) in the case of a Foreign Subsidiary of the Company organized in
Norway, Norway or any agency of instrumentality thereof (provided that the full faith and
credit of Norway is pledged in support thereof) and (y) in all cases, the United States or any
agency or instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof), in either case having maturities of not more than six months
from the date of acquisition, (iii) marketable direct obligations issued by any state of the United
States or any political subdivision of any such state or any public instrumentality thereof
maturing within six months from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either S&P or Moody’s, (iv) time deposits,
certificates of deposit and bankers acceptances of any Lender (as defined in the Parent Credit
Facility) or any commercial bank organized under the laws of the United States, any State thereof
or any other country which is a member of the Organization for Economic Cooperation and Development
and, in each case, having total assets in excess of $10,000,000,000 (or an equivalent amount in the
currency of any member country), (v) repurchase obligations with a



2









 




term of not more than seven days for underlying securities of the types described in clause
(ii)(y) above entered into with any bank meeting the qualifications specified in clause (iv) above,
(vi) commercial paper issued by any Person incorporated in the United States rated at least A-1 or
the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s and in each case
maturing not more than six months after the date of acquisition by such Person, (vii) investments
in money market funds substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (vi) above and (viii) in the case of Foreign Subsidiaries of the
Company, overnight deposits and demand deposit accounts (in the respective local currencies)
maintained in the ordinary course of business.




     “Closing Date” means May  , 2009, the date as of which this Indenture was originally
executed and delivered.



     “Closing Sale Price” of any share of Common Stock or any other security on any Trading Day
means the closing sale price of such security (or, if no closing sale price is reported, the
average of the closing bid and ask prices or, if more than one in either case, the average of the
average closing bid and the average closing ask prices) on such date as reported in composite
transactions for the principal U.S. securities exchange on which such security is traded or, if
such security is not listed on a U.S. national or regional securities exchange, as reported by Pink
OTC Markets Inc. In the absence of such a quotation, the Closing Sale Price shall be determined by
a nationally recognized securities dealer retained by the Company to make such determination. The
Closing Sale Price shall be determined without reference to extended or after hours trading.



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



     “Collateral” means, collectively, the assets set forth on Schedule I attached hereto
and such other assets that from time to time become subject to the Second Lien under any of the
Security Documents (including, without limitation, such additional assets which are to be made part
of the Second Lien in accordance with Section 2.3(b) of the Intercreditor Agreement.



     “Common Stock” means any stock of any class of the Company which has no preference in respect
of dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to redemption by the Company.
Subject to the provisions of Sections 10.06 and 10.13, however, shares issuable on conversion of
Debentures shall include only shares of the class designated as common stock of the Company at the
Closing Date (namely, the Common Stock, par value $0.01) or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which are not subject to redemption by
the Company; provided that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable on conversion shall be substantially in the
proportion which the total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all such reclassifications.



     “Common Stock Equivalents” means, collectively, Options and Convertible Securities.



3









 





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



     “Company Order” has the meaning specified in Section 2.04.



     “Company Redemption Date” has the meaning specified in Section 3.02.



     “Company Redemption Election Notice” has the meaning specified in Section 3.02.



     “Company Repurchase Notice” has the meaning specified in Section 3.05.



     “Company Redemption Price” means 100% of the principal amount of the Debentures being
redeemed, plus accrued and unpaid interest to, but excluding, the redemption date (subject to the
right of Holders of record on the relevant Record Date to receive (i) interest due on the relevant
interest payment date and (ii) principal payments due on the applicable Principal Payment Date).



     “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period, before
deducting therefrom (i) consolidated interest expense of the Company and its Subsidiaries for such
period, (ii) provision for taxes based on income that were included in arriving at Consolidated Net
Income for such period and (iii) the amount of all amortization of intangibles and depreciation to
the extent that same was deducted in arriving at Consolidated Net Income for such period and
without giving effect (x) to any extraordinary gains or extraordinary non-cash losses (except to
the extent that any such extraordinary non-cash losses require a cash payment in a future period)
and (y) to any or gains or losses from sales of assets other than from sales of inventory in the
ordinary course of business; provided that, for purposes of determining the
Consolidated Leverage Ratio, pro forma adjustment shall be made for any vessels acquired by or
delivered to the Company or any Subsidiary thereof prior to the end of any Test Period as if such
vessels were acquired or delivered on the first day of the relevant Test Period.



     “Consolidated Indebtedness” means, as at any date of determination, without duplication, the
sum of (i) the aggregate stated balance sheet amount of all Indebtedness (but including, in any
event, without limitation, the then outstanding principal amount of the Debentures, all outstanding
2027 Convertible Debentures, all Capitalized Lease Obligations and all purchase money Indebtedness)
of the Company and its Subsidiaries at such time determined on a consolidated basis and (ii) the
aggregate amount of all Contingent Obligations of the Company and its Subsidiaries in respect of
Indebtedness described in preceding clause (i) at such time determined on a consolidated basis.



     “Consolidated Leverage Ratio” means, as at any date of determination, the ratio of
Consolidated Net Indebtedness as at such date (after giving pro forma effect to the issuance of
Indebtedness (including the use of proceeds therefrom to repay other Indebtedness of the Company or
any of its Subsidiaries)) to Consolidated EBITDA for the period (the “Test Period”) of four
consecutive Fiscal Quarters most recently ending on or before such date.



     “Consolidated Leverage Ratio Indebtedness” means Indebtedness incurred by the Company or any
of its Subsidiaries after the date hereof in a principal amount such that the



4









 




Consolidated Leverage Ratio does not exceed 4 to 1 at the time of the incurrence of such
Indebtedness.




     “Consolidated Net Income” means, for any period, the net income (or loss) of the Company and
its Subsidiaries for such period, determined on a consolidated basis (after any deduction for
minority interests), provided that the net income of any Subsidiary of the Company shall be
excluded to the extent that the declaration or payment of cash dividends or similar cash
distributions by that Subsidiary of that net income is not at the date of determination permitted
by operation of its charter or any agreement, instrument or law applicable to such Subsidiary and
the net income (or loss) of any other Person acquired by the Company or a Subsidiary of the Company
in a pooling of interests transaction for any period prior to the date of such acquisition shall be
excluded.



     “Consolidated Net Indebtedness” means, on any date, (i) Consolidated Indebtedness on such date
minus (ii) unrestricted cash and Cash Equivalents of the Company and its Subsidiaries on such date.



     “Contingent Obligation” means, as to any Person, any obligation of such Person in respect of
indebtedness as a result of such Person being a general partner of any other Person, unless the
underlying obligation is expressly made non-recourse as to such general partner, and any obligation
of such Person guaranteeing or intended to guarantee any indebtedness (“primary obligations”) of
any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business or customary and reasonable indemnity
obligations in effect on the Issue Date or entered into in connection with any acquisition or
disposition of assets permitted by this Agreement. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.



     “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors who (i) was a member of the Board of Directors on the Closing Date; or (ii) was nominated
for election or elected to the Board of Directors with the approval of a majority of the Continuing
Directors who were members of the Board of Directors at the time of such new director’s nomination
or election.



     “Conversion Date” has the meaning specified in Section 10.02.



5









 





     “Conversion Limitation” has the meaning specified in Section 10.15.



     “Conversion Notice” has the meaning specified in Section 10.02.



     “Conversion Price” on any date of determination means $1,000 divided by the Conversion Rate as
of such date.



     “Conversion Rate” means initially 71.4286, subject to adjustment as set forth herein. The
Conversion Rate constitutes the number of shares of Common Stock (or the Applicable Consideration
or Public Acquirer Common Stock upon which the Conversion Settlement Amount receivable upon
conversion of the Debentures is then based in accordance with Section 10.06 or 10.13) upon which
the Conversion Settlement Amount for each $1,000 principal amount of Debentures is based from time
to time.



     “Conversion Settlement Amount” has the meaning specified in Section 10.12(a).



     “Convertible Securities” means any stock or securities (other than Options) convertible into
or exercisable or exchangeable for shares of Common Stock.



     “Corporate Trust Office” or other similar term, means the designated office of the Trustee at
which at any particular time its corporate trust business as it relates to this Indenture shall be
administered, which office is, at the Closing Date, located at 1445 Ross Avenue, 2nd Floor, Dallas,
Texas 75202-2812 or at any other time at such other address as the Trustee may designate from time
to time by notice to the Company.



     “Credit Facilities” means, with respect to the Company or any Subsidiary thereof, one or more
credit facilities (including, without limitation, credit agreements or commercial paper facilities)
providing for revolving credit loans, term loans, receivables financing (including through the sale
of receivables to such banks or to special purpose entities formed to borrow from such banks
against such receivables) or letters of credit or bank guarantees, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to
time, including the agreements governing the Senior Permitted Indebtedness.



     “Current Market Price” has the meaning specified in Section 10.05(g)(i).



     “Custodian” has the meaning specified in Section 6.01.



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



     “Debentures” means any Debentures issued, authenticated and delivered under this Indenture,
including any Global Debentures.



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



     “Depositary” means the clearing agency registered under the Exchange Act that is designated to
act as the Depositary for the Global Debentures. DTC shall be the initial



6









 




Depositary, until a successor shall have been appointed and become such pursuant to the
applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such
successor.




     “Depositary Entity” has the meaning specified in Section 9.04.



     “Determination Date” has the meaning specified in Section 10.05(k).



     “Distributed Assets” has the meaning specified in Section 10.05(d).



     “Dollars” and the sign “$” each means lawful money of the United States.



     “Domestic Subsidiary” means, as to any Person, each Subsidiary of such Person that is
organized under the laws of the United States, any state thereof or the District of Columbia.



     “DTC” means The Depository Trust Company.



     “Effective Date” means the effective date of the applicable Fundamental Change.



     “Equity Conditions” means, as of each date of determination, (i) the shares of Common Stock
issuable upon conversion of the Debentures shall be eligible for sale without restriction by
Persons who are not Affiliates of the Company pursuant to an effective registration statement under
the Securities Act or under Rule 144 of the Securities Act (or any successor rule), (ii) the Common
Stock is designated for quotation on the principal securities market on which the Common Stock
trades and shall not be suspended from trading on such principal market on the applicable date of
determination and (iii) there shall not have occurred and be continuing a Default.



     “Event of Default” has the meaning specified in Section 6.01.



     “Event of Loss” shall mean any of the following events: (x) the actual or constructive total
loss of any vessel comprising a portion of the Collateral or the agreed or compromised total loss
of such a vessel; or (y) the capture, condemnation, confiscation, requisition, purchase, seizure or
forfeiture of (in each case, other than temporary seizure for customs lasting no more than 90
days), or any taking of title to, any vessel comprising a portion of the Collateral. In addition,
if the Company receives insurance proceeds of more than $1 million in respect of any partial loss
with respect to a vessel comprising a portion of the Collateral, then to the extent that (i) the
Company has not determined, within six months of such partial loss, to apply such proceeds (or an
equivalent amount of funds) to repairs or improvements of the vessel in question (or another vessel
comprising part of the Collateral), or (ii) such proceeds (or an equivalent amount of funds) have
not been applied to repairs or improvements of the vessel in question (or another vessel comprising
part of the Collateral) prior to the expiration of one year after the receipt of such proceeds,
then in each case such proceeds that are not so applied shall be deemed to be proceeds of an Event
of Loss for purposes of this definition.



     “‘ex’ date” has the meaning specified in Section 10.05(g)(ii).



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



7









 





     “Exchange Agreements” means the Exchange Agreements dated May 11, 2009, relating to the
issuance of the Debentures, among the Company and the investors party thereto.



     “Existing Senior Permitted Indebtedness” means (i) $200 million of Indebtedness under the
Credit Agreement, dated as of May 14, 2008 (as amended on November 3, 2008, December 15, 2008 and
March 10, 2009), among Trico Supply AS, Trico Subsea Holding AS, Trico Subsea AS, Trico Shipping
AS, the lenders party thereto from time to time, and Nordea Bank Finland PLC, New York Branch, as
Administrative Agent and as Collateral Agent, (ii) $100 million of Indebtedness under that Credit
Agreement, dated April 24, 2008 (as amended on June 24, 2008, November 3, 2008, December 15, 2008
and March 10, 2009), by and among Trico Supply AS, Trico Subsea Holding AS, Trico Subsea AS, Nordea
Bank Finland PLC, New York Branch, as Administrative Agent, Book Runner and Joint Lead Arranger,
Nordea Bank Norge ASA, Grand Cayman Branch and various lenders party thereto from time to time, and
(iii) $35,000,000 of Indebtedness under the Parent Credit Facility (as amended on March 10, 2009,
May 8, 2009 and the date hereof), each as further amended, amended and restated, supplemented or
otherwise modified.



     “Fair Market Value” has the meaning specified in Section 10.05(g)(iii).



     “Fiscal Quarter” means, with respect to the Company, the fiscal quarter publicly disclosed by
the Company. The Company shall confirm the ending dates of its fiscal quarters for the current
fiscal year to the Trustee upon the Trustee’s request.



     “Foreign Subsidiary” means, as to any Person, each Subsidiary of such Person which is not a
Domestic Subsidiary.



     “Fundamental Change” means the occurrence of any of the following after the Closing Date:



     (a) the consummation of any transaction that is disclosed in a Schedule 13D (or successor
form) by any “person” and the result of which is that such “person” has become the “beneficial
owner” (as these terms are defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly
or indirectly, of more than 50% of the Company’s Capital Stock that is at the time entitled to vote
by the holder thereof in the election of the Board of Directors (or comparable body); or



     (b) the first day on which a majority of the members of the Board of Directors are not
Continuing Directors; or



     (c) the adoption of a plan relating to the liquidation or dissolution of the Company; or



     (d) the consolidation or merger of the Company with or into any other Person, or the sale,
lease, transfer, conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the Company’s assets and those of its subsidiaries taken as a whole to
any “person” (as this term is used in Section 13(d)(3) of the Exchange Act), other than:




     (i) any transaction pursuant to which the holders of 50% or more of the total voting
power of all shares of the Company’s Capital Stock entitled to vote generally in



8









 






elections of directors of the Company immediately prior to such transaction have the
right to exercise, directly or indirectly, 50% or more of the total voting power of all
shares of the Company’s Capital Stock entitled to vote generally in elections of directors
of the continuing or surviving Person (or any parent thereof) immediately after giving
effect to such transaction; or




     (ii) any merger primarily for the purpose of changing the Company’s jurisdiction of
incorporation and resulting in a reclassification, conversion or exchange of outstanding
shares of Common Stock solely into shares of common stock of the surviving entity; or



     (e) the termination of trading of the Common Stock, which will be deemed to have occurred if
the Common Stock or other common equity interests into which the Debentures are convertible is
neither listed for trading on a United States national securities exchange nor approved for listing
on any United States system of automated dissemination of quotations of securities prices, and no
American Depositary Shares or similar instruments for such common equity interests are so listed or
approved for listing in the United States.



     However, a Fundamental Change will be deemed not to have occurred if more than 90% of the
consideration in the transaction or transactions (other than cash payments for fractional shares
and cash payments made in respect of dissenters’ appraisal rights) which otherwise would constitute
a Fundamental Change under clauses (a) or (d) above consists of shares of common stock, depositary
receipts or other certificates representing common equity interests traded or to be traded
immediately following such transaction on a U.S. national securities exchange or approved for
listing on any United States system of automated dissemination of quotations of securities prices,
and, as a result of the transaction or transactions, the Debentures become convertible into such
common stock, depositary receipts or other certificates representing common equity interests .



     “Fundamental Change Period” has the meaning specified in Section 3.04(c).



     “Fundamental Change Repurchase Date” has the meaning specified in Section 3.04(a).



     “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, including those set forth in (i) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants, (ii)
statements and pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the accounting profession,
and (iv) the rules and regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins
and similar written statements from the accounting staff of the SEC.



     “Global Debentures” has the meaning specified in Section 2.02.



     “Guarantor” means any Subsidiary of the Company that has provided a guarantee of the
Debentures.



9









 





     “Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness
(including principal, interest, fees and charges) of such Person for borrowed money or for the
deferred purchase price of property or services, (ii) the maximum amount drawn under all letters of
credit, bankers’ acceptances and similar obligations issued for the account of such Person and all
unpaid drawings in respect of such letters of credit, bankers’ acceptances and similar obligations,
(iii) all Indebtedness of the types described in clause (i), (ii), (iv), (v) or (vi) of this
definition secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (provided that, if the Person has not assumed
or otherwise become liable in respect of such Indebtedness, such Indebtedness shall be deemed to be
in an amount equal to the fair market value of the property to which such Lien relates as
determined in good faith by such Person), (iv) the aggregate amount of all Capitalized Lease
Obligations of such Person, (v) all obligations of such Person to pay a specified purchase price
for goods or services, whether or not delivered or accepted, i.e. take-or-pay and similar
obligations, except for such obligations relating to vessel charters, (vi) all Contingent
Obligations of such Person and (vii) all net obligations under any Interest Rate Protection
Agreement, Other Hedging Agreement or under any similar type of agreement except, in each case, for
such agreements entered into in the ordinary course of business and not for speculative purposes;
provided that Indebtedness shall in any event not include (x) trade payables and expenses
accrued in the ordinary course of business or (y) milestone payments and similar obligations
incurred by any Person under any vessel purchase contract.



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



     “Intercreditor Agreement” means the Intercreditor Agreement dated the Issue Date among the
Company, Trico Marine Assets, Inc., a Delaware corporation, Trico Marine Operators, Inc., a
Louisiana corporation, the Trustee and Nordea Bank Finland plc, New York Branch, as amended,
restated, modified or supplemented in accordance with the terms thereof.



     “interest” means, when used with reference to the Debentures, any interest payable under the
terms of the Debentures, including defaulted interest and Additional Interest, if any, payable
under Section 6.13 hereof.



     “Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest
rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar
agreement or arrangement.



     “Interest Make-Whole” means with respect to each $1,000 principal amount of Debentures, a
payment in cash equal to the sum of, without duplication, (i) the amount of any interest that, but
for the Holder’s exercise of its conversion right pursuant to Section 10.01, would have accrued
under the Debentures at the Interest Rate for the period from the applicable Conversion Date
through February 1, 2013, discounted to the present value of such interest using a discount rate
equal to the interest rate of U.S. Treasury Bonds with equivalent remaining terms from the
applicable Conversion Date through February 1, 2013 and (ii) the amount of interest accrued and
unpaid on such $1,000 of principal amount converted from the last interest payment date through the
relevant Conversion Date.



     “Issue Date” means the date of initial issuance of Debentures pursuant to this Indenture.



10









 





     “Legal Holiday” has the meaning specified in Section 11.08.



     “Liens” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), preference, priority or other security agreement of any
kind or nature whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under the Uniform
Commercial Code or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).



     “Make-Whole Applicable Increase” has the meaning specified in Section 10.04(c).



     “Make-Whole Consideration” has the meaning specified in Section 10.04(c).



     “Market Disruption Event” means (i) a failure by the primary United States national securities
exchange or market on which the Common Stock is listed, admitted to trading or quoted to open for
trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m.
(New York City time) on any Trading Day for the Common Stock for an aggregate one half hour period
of any suspension or limitation imposed on trading (by reason of movements in price exceeding
limits permitted by the stock exchange or otherwise) in the Common Stock or in any options
contracts or future contracts relating to the Common Stock.



     “Maturity Date” means February 1, 2013.



     “Net Cash Proceeds” means, with respect to any Asset Sale, the cash proceeds received by the
Company or any of its Subsidiaries from such Asset Sale net of:



     (a) all out-of-pocket expenses and fees relating to such Asset Sale (including legal,
accounting and investment banking fees and sales commissions);



     (b) taxes paid or payable in connection with such Asset Sale; and



     (c) amounts (i) used to repay Indebtedness that is required to be repaid or otherwise required
to be retained or identified for the benefit of a lender, or (ii) by which any commitment for
revolving indebtedness is required to be permanently reduced, each in connection with such Asset
Sale.



     “Non-Stock Change of Control” means a transaction described under clause (a) or clause (d) in
the definition of Fundamental Change pursuant to which 10% or more of the consideration for Common
Stock (other than cash payments for fractional shares, if applicable, and cash payments made in
respect of dissenters’ appraisal rights) in such transaction consists of cash or securities (or
other property) that are not shares of common stock, depositary receipts or other certificates
representing common equity interests traded or scheduled to be traded immediately following such
transaction on a U.S. national securities exchange.



     “Non-Stock Change of Control Conversion” has the meaning specified in Section 10.04(b).



11









 





     “Nordea Indebtedness” means Indebtedness incurred by the Company or any of its Subsidiaries
under a credit agreement or facility in which Nordea Bank Finland plc, New York Branch, or any of
its Affiliates, is a lender and that is outstanding on the Issue Date (including any extensions,
refinancings and renewals thereof (x) excluding any extension, refinancing or renewals that result
in any increase in the principal amount of such Indebtedness (except to the extent expressly
permitted by the Intercreditor Agreement) and (y) except to the extent such extension, refinancing
or renewal otherwise violates any term or condition herein, in any Security Document or in the
Intercreditor Agreement).



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



     “Officers’ Certificate” means a certificate signed by two Officers. One of the officers
executing an Officers’ Certificate in accordance with Section 4.06 shall be the chief executive,
financial or accounting officer of the Company.



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



     “Options” means any rights, warrants or options to subscribe for or purchase shares of Common
Stock or Convertible Securities.



     “Other Hedging Agreement” shall mean any foreign exchange contracts, currency swap agreements,
commodity agreements or other similar agreements or arrangements designed to protect against the
fluctuations in currency or commodity values.



     “Parent Credit Facility” means that certain Amended and Restated Credit Agreement dated as of
August 29, 2008 among the Company, as borrower, Trico Marine Assets, Inc. and Trico Marine
Operators, Inc., as Guarantors, Nordea Bank Finland PLC, New York Branch, as Administrative Agent,
Lead Arranger and Book Runner, and various lenders party from time to time thereto, as amended,
together with any Interest Rate Protection Agreements or Other Hedging Agreements permitted to be
entered into pursuant thereto and which constitute secured obligations thereunder.



     “Paying Agent” has the meaning specified in Section 2.05.



     “Permitted Indebtedness” means (A) unsecured Indebtedness incurred by the Company or any of
its Subsidiaries that is made expressly subordinate in right of payment to the Indebtedness
evidenced by the Debentures that does not provide at any time for the fixed payment, prepayment,
repayment, redemption, repurchase or defeasance, directly or indirectly, of any principal or
premium, if any, thereon until at least ninety-one (91) days after February 1, 2013, (B)
Indebtedness secured by Permitted Liens, (C) Indebtedness outstanding on the Issue Date, (D) Senior
Permitted Indebtedness, (E) Indebtedness related to the financing and delivery of the MV Cyngus (a
multipurpose ROV/trencher construction vessel, model ST-256 L, designed by Skipsteknisk and being
built by Fosen shipyard AS) in an aggregate amount not to exceed $83,000,000, (F) Consolidated
Leverage Ratio Indebtedness, (G) Indebtedness evidenced by the Debentures, (H) Indebtedness with
Sparebank 1 SR Bank, as lender (the “SR Indebtedness”),



12









 




existing on the Issue Date, (I) inter-company Indebtedness and (J) extensions, refinancings
and renewals of any of the foregoing items, including the items so extended, refinanced and
renewed, of Permitted Indebtedness, provided that (i) the principal amount is not increased
(except in amounts needed to pay fees and expenses) or (ii) with respect to all Permitted
Indebtedness (other than Existing Senior Permitted Indebtedness, SR Indebtedness and Nordea
Indebtedness), the terms are not modified (A) such that the average maturity of such indebtedness
is decreased unless the average maturity as so decreased falls after the Maturity Date, (B) to
increase the interest rate by more than 800 basis points above LIBOR, (C) to increase such
indebtedness by more than 10% or (D) to provide a prepayment premium with respect to the prepayment
or redemption of such indebtedness in excess of 101% of the principal amount of such indebtedness
then outstanding; provided, that except for such Permitted Indebtedness of the Company
outstanding and convertible into Common Stock as of the date hereof, none of the foregoing
Indebtedness shall under any circumstances be, in whole or in part, convertible into, or
exchangeable or exercisable for, shares of Common Stock or Common Stock Equivalents unless (x) the
Closing Sale Price of the Common Stock at the time such Indebtedness is created, incurred, issued,
assumed or guaranteed was at least $8.50 (as adjusted for stock splits, recapitalizations and
similar events) per share of Common Stock on the date such indebtedness was created, incurred,
issued, assumed or guaranteed and (y) the Volume Weighted Average Price of the Common Stock was at
least $8.50 (as adjusted for stock splits, recapitalizations and similar events) on each trading
day during the 30-day period prior to the creation, incurrence, issuance, assumption or guarantee
of such Permitted Indebtedness.




     “Permitted Liens” means (i) any Lien securing the Debentures, (ii) any Lien existing on the
Issue Date or securing Indebtedness existing on the Issue Date and any extension, renewal or
refinancing of such indebtedness; provided, that with respect to Liens securing the
Collateral, such Liens will only be permitted pursuant to this clause (ii) of this definition if
they are set forth in Annex A hereto; (iii) any Lien for taxes not yet due or delinquent or
being contested in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, (iv) any statutory Lien arising in the ordinary course of
business by operation of law with respect to a liability that is not yet due or delinquent, (v) any
Lien created by operation of law, such as materialmen’s liens, mechanics’ liens and other similar
liens, arising in the ordinary course of business with respect to a liability that is not yet due
or delinquent or that are being contested in good faith by appropriate proceedings, (vi) Liens (A)
upon or in any equipment or vessel acquired or held by the Company or any of its Subsidiaries to
secure the purchase price of such equipment, vessel or indebtedness incurred solely for the purpose
of financing the acquisition or lease of such equipment or vessel, or (B) existing on such
equipment or vessel at the time of its acquisition, provided that the Lien is confined
solely to the property so acquired and improvements thereon, and the proceeds of such equipment or
vessel (including, without limitation, assignments of the related earnings and insurances), (vii)
leases or subleases and licenses and sublicenses granted to others in the ordinary course of the
Company’s business, not interfering in any material respect with the business of the Company and
its Subsidiaries taken as a whole, (viii) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payments of custom duties in connection with the importation of
goods), (ix) Liens securing the Senior Permitted Indebtedness; provided, that with respect
to Liens on the Collateral, clause (ix) of this definition only applies to Liens permitted under
Section 4.11(b)(ii)(A), (x) Liens securing Interest Rate Protection Agreements and Other Hedging
Agreements, (xi) Liens securing Consolidated Leverage Ratio Indebtedness, (xii) Liens incurred



13









 




in connection with bonds posted for litigation and (xiii) Liens incurred in connection with
the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in
clauses (i), (ii), (vi) and (xi) above, provided that any extension, renewal or replacement
Lien shall be limited to the property encumbered by the existing Lien and the principal amount of
the Indebtedness being extended, renewed or refinanced does not increase (except for expenses and
fees associated with such extension, renewal or refinancing).




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



     “PORTAL Market” means The PORTAL Market operated by the Nasdaq Stock Market or any successor
thereto.



     “principal” of a Debenture means the then outstanding and unpaid principal of the Debenture
plus the premium, if any, payable on the Debenture that is due or overdue or is to become due at
the relevant time.



     “Principal Payment Date” means (i) with respect to any principal installment payment on the
Debentures, the date specified in the Installment Payment Schedule attached to the Debentures and
(ii) with respect to any payment of principal pursuant to Section 1(d) of the Debentures, the fifth
calendar day following the Record Date for the Asset Sale triggering such payment.



     “protected purchaser” has the meaning specified in Section 2.09.



     “Public Acquirer Change of Control” means a Non-Stock Change of Control in which the acquirer
has a class of common stock (or depositary receipts or shares in respect thereof) traded on a U.S.
national securities exchange or that shall be so traded or quoted when issued or exchanged in
connection with such Non-Stock Change of Control (the “Public Acquirer Common Stock”). If an
acquirer does not itself have a class of common stock (or depositary receipts or shares in respect
thereof) satisfying the foregoing requirement, it shall be deemed to have Public Acquirer Common
Stock (or depositary receipts or shares in respect thereof) if a corporation that directly or
indirectly owns at least a majority of the acquirer has a class of common stock (or depositary
receipts or shares in respect thereof) satisfying the foregoing requirement, provided that
such majority-owning corporation fully and unconditionally guarantees the Debentures, in which case
all references to Public Acquirer Common Stock shall refer to such class of common stock. Majority
owned for these purposes means having “beneficial ownership” (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the total voting power of all shares of the respective entity’s
capital stock that are entitled to vote generally in the election of directors.



     “Public Acquirer Common Stock” has the meaning specified in the definition of Public Acquirer
Change of Control.



     “Purchased Shares” has the meaning specified in Section 10.05(f).



14









 





     “Record Date” (i) with respect to any interest payment date of the Debentures, means the May 1
and November 1 preceding the applicable May 15 and November 15 interest payment date, respectively,
(ii) with respect to any principal installment payment on the Debentures (other than at the final
Maturity Date), means the fifteenth calendar day of the month preceding the applicable Principal
Payment Date, (iii) with respect to any payment of principal pursuant to Section 1(d) of the
Debentures, means the tenth calendar day following the date the Asset Sale triggering such payment
is consummated and (iv) with respect to the Conversion Rate adjustment as provided in Section
10.05, has the meaning specified in Section 10.05(g).



     “Redemption Election Notice Date” has the meaning specified in Section 3.02.



     “Register” has the meaning specified in Section 2.05.



     “Registrar” has the meaning specified in Section 2.05.



     “Repurchase Notice” has the meaning specified in Section 3.04(c).



     “Restricted Interests” has the meaning specified in Section 4.13(a).



     “Restricted Securities” has the meaning specified in Section 2.08(c).



     “Rule 144A” means Rule 144A as promulgated under the Securities Act as it may be amended from
time to time hereafter.



     “SEC” means the Securities and Exchange Commission.



     “Second Lien” means the liens in favor of the Trustee, on behalf of the Holders, on the
Collateral granted under the Security Documents and subject to the terms of the Intercreditor
Agreement, which the Company and the Trustee agree (subject to the proper filing of the financing
statements and mortgages) will as of the Issue Date rank second in priority on the Collateral
(except with respect to the Liens set forth on Annex A) and thereafter will rank (a) second in
priority on the Collateral to the extent any Liens permitted under Section 4.11(b)(ii)(A) remain
outstanding and (b) first in priority on the Collateral to the extent no Liens permitted under
Section 4.11(b)(ii)(A) remain outstanding, in each case, except with respect to (x) the Liens set
forth on Annex A, (y) the Liens described in clauses (iii) — (v) and (vii) — (viii) of the
definition of “Permitted Liens” and (z) solely with respect to Collateral that is not set forth on
Schedule I (or improvements or repairs to the Collateral set forth on Schedule I), the Liens
described in clause (vi) of the definition of “Permitted Liens”).



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.



     “Security Documents” means, collectively, all security agreements, mortgages, deeds of trust,
collateral assignments or other instruments evidencing or creating the Second Lien, together with
the Intercreditor Agreement, in each case as they may be amended, supplemented or modified from
time to time in accordance with their respective terms and the terms of this Indenture.



15









 





     “Senior Permitted Indebtedness” means Indebtedness under one or more Credit Facilities to
which the Company and/or any Subsidiary of the Company is a party or obligated with respect thereto
whether as borrower, issuer, guarantor or otherwise, provided that the outstanding
principal amount thereof at any time shall not exceed $350,000,000 at any one time outstanding.



     “Settlement Shares” has the meaning specified in Section 10.12(a).



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



     “Spin-Off” has the meaning specified in Section 10.05(d).



     “Spin-Off Valuation Period” has the meaning specified in Section 10.05(d).



     “SR Indebtedness” has the meaning specified in the definition of Permitted Indebtedness.



     “Stock Price” has the meaning specified in Section 10.04(c).



     “Subsidiary” of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more
Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.



     “TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb), as amended, as in effect on the date of this Indenture.



     “Trading Day” has the meaning specified in Section 10.05(g)(v).



     “Trigger Event” has the meaning specified in Section 10.05(d).



     “Trust Officer” means any officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture.



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



     “2027 Convertible Debentures” means the $150,000,000 principal amount of the Company’s 3.00%
Senior Convertible Debentures due 2027 issued pursuant to the 2027 Indenture.



     “2027 Indenture” means that certain Indenture, dated as of February 7, 2007 between the
Company, as issuer, and Wells Fargo Bank, National Association, as trustee, pursuant to which the
Company issued the 2027 Convertible Debentures.



16









 





     “2028 Convertible Debentures” means the $300,000,000 principal amount of the Company’s 6.50%
Senior Convertible Debentures due 2028 issued pursuant to the 2028 Indenture.



     “2028 Indenture” means that certain Indenture, dated as of March 15, 2008 between the Company,
as issuer, and Wells Fargo Bank, National Association, as trustee, pursuant to which the Company
issued the 2028 Convertible Debentures.



     “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.



     “Volume Weighted Average Price” on any Trading Day means (i) with respect to the Common Stock,
the per share volume weighted average price as displayed under the heading “Bloomberg VWAP” on
Bloomberg Page TRMA<equity>AQR (or its equivalent successor if such page is not available) in
respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day or, if
such Volume Weighted Average Price is unavailable or such page or its equivalent is unavailable,
the volume weighted average price of each trade in the Common Stock during such Trading Day between
9:30 a.m. and 4:00 p.m., New York City time, on The Nasdaq Global Select Market or, if the Common
Stock is not traded on The Nasdaq Global Select Market, the principal U.S. national or regional
securities exchange on which the Common Stock is listed, as calculated by a nationally recognized
independent investment banking firm retained for this purpose by the Company or (ii) with respect
to any Applicable Consideration or Public Acquirer Common Stock, the volume weighted average price
per unit of Applicable Consideration or share of Public Acquirer Common Stock, as applicable, as
determined in a manner substantially consistent with the manner in which the “Volume Weighted
Average Price” of a share of Common Stock is to be determined in accordance with clause (i) as
determined in good faith by the Company.



     SECTION 1.02 Incorporation by Reference of Trust Indenture Act. The following TIA terms
have the following meanings:



     “Commission” means the SEC.



     “indenture securities” means the Debentures.



     “indenture security holder” means a Debentureholder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor” on the indenture securities means the Company and any other obligor on the indenture
securities.



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



17









 





     SECTION 1.03 Rules of Construction. Unless the context otherwise requires:



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



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



     (3) “or” is not exclusive;



     (4) “including” means including without limitation; and



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



ARTICLE 2

THE DEBENTURES




     SECTION 2.01 Designation, Amount and Issuance of Debentures. The Debentures shall be
designated as “8.125% Secured Convertible Debentures due 2013”. The Debentures will be issued in an
aggregate principal amount not to exceed $202,812,000 on the Closing Date. Debentures may be executed by the Company and
delivered to the Trustee for authentication as provided in Section 2.04.



     SECTION 2.02 Form of the Debentures. The Debentures and the Trustee’s certificate of
authentication to be borne by such Debentures shall be substantially in the form set forth in
Exhibit A hereto. The terms and provisions contained in the form of Debentures attached as
Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture
and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.



     Any of the Debentures may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required by the custodian for the Global Debentures, the
Depositary or by the Financial Industry Regulatory Authority in order for the Debentures to be
tradable on the PORTAL Market or as may be required for the Debentures to be tradable on any other
market developed for trading of securities pursuant to Rule 144A or as may be required to comply
with any applicable law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation system on which the Debentures may be
listed, or to conform to usage, or to indicate any special limitations or restrictions to which any
particular Debentures are subject.



     So long as the Debentures are eligible for book-entry settlement with the Depositary, or
unless otherwise required by law, or otherwise contemplated by Section 2.08(b), all of the
Debentures will be represented by one or more Debentures in global form registered in the name of
the Depositary or the nominee of the Depositary (“Global Debentures”). The transfer and



18









 




exchange of beneficial interests in any such Global Debentures shall be effected through the
Depositary in accordance with the applicable procedures of the Depositary; and beneficial interests
in the Global Debentures shall be subject to all rules and procedures of the Depositary. Except as
provided in Section 2.08(b), beneficial owners of a Global Debenture shall not be entitled to have
certificates registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered Holders of such Global
Debenture.




     Any Global Debentures shall represent such of the outstanding Debentures as shall be specified
therein and shall provide that it shall represent the aggregate amount of outstanding Debentures
from time to time endorsed thereon and that the aggregate amount of outstanding Debentures
represented thereby may from time to time be increased or reduced to reflect redemptions,
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global
Debenture to reflect the amount of any increase or decrease in the amount of outstanding Debentures
represented thereby shall be made by the Trustee or the custodian for the Global Debenture, at the
direction of the Trustee, in such manner and upon instructions given by the Holder of such
Debentures in accordance with this Indenture. Payment of principal of, interest on and premium, if
any, on any Global Debentures shall be made to the Depositary in immediately available funds.



     SECTION 2.03 Date and Denomination of Debentures; Payment at Maturity; Payment of Interest.
The Debentures shall be issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples of $1 thereof. Each Debenture shall be dated the date of its
authentication and shall bear interest from the date specified in the form of Debentures attached
as Exhibit A hereto. Interest on the Debentures shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.



     On the Maturity Date, each Holder shall be entitled to receive on such date the principal
amount of its Debentures then outstanding and accrued and unpaid interest to, but not including,
the Maturity Date. With respect to Global Debentures, such principal and interest will be paid to
the Depositary in immediately available funds. With respect to any certificated Debentures, such
principal and interest will be payable at the Company’s office or agency maintained for that
purpose, which initially will be the office or agency of the Trustee located at 1445 Ross Avenue,
2nd Floor, Dallas, Texas 75202-2812.



     The Person in whose name any Debenture is registered on the Register at 5:00 p.m., New York
City time, on any Record Date with respect to any interest payment date shall be entitled to
receive the interest payable on such interest payment date, except that the interest payable upon
maturity will be payable to the Person to whom principal is payable upon maturity.



     The Company shall pay interest (i) on any Global Debentures by wire transfer of immediately
available funds to the account of the Depositary or its nominee, (ii) on any Debentures in
certificated form having a principal amount of less than $2,000,000, by check mailed to the address
of the Person entitled thereto as it appears in the Register, provided, however, that at
maturity interest will be payable at the office of the Company maintained by the Company for such
purposes, which shall initially be an office or agency of the Trustee and (iii) on any Debentures
in certificated form having a principal amount of $2,000,000 or more, by



19









 




wire transfer to an account in the United States in immediately available funds at the
election of the Holder of such Debentures duly delivered to the trustee at least five Business Days
prior to the relevant interest payment date, provided, however, that at maturity
interest will be payable at the office of the Company maintained by the Company for such purposes,
which shall initially be an office or agency of the Trustee. If a payment date is not a Business
Day, payment shall be made on the next succeeding Business Day, and no additional interest shall
accrue thereon.




     SECTION 2.04 Execution and Authentication. One or more Officers shall sign the Debentures
for the Company by manual or facsimile signature.



     If an Officer whose signature is on a Debenture no longer holds that office at the time the
Trustee authenticates the Debenture, the Debenture shall be valid nevertheless.



     A Debenture shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Debenture. The signature shall be conclusive evidence that
the Debenture has been authenticated under this Indenture.



     The Trustee shall authenticate and make available for delivery Debentures for original issue,
upon receipt of a written order or orders of the Company signed by an Officer or by any Assistant
Treasurer of the Company or any Assistant Secretary of the Company (a “Company Order”) pursuant to
the Exchange Agreements, in the aggregate principal amount of up to $202,812,000 on the Closing
Date. The Company Order
shall specify the amount of Debentures to be authenticated and shall state the date on which such
Debentures are to be authenticated.



     The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Debentures. Any such appointment shall be evidenced by an instrument signed by a
Trust Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Debentures whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for
service of notices and demands.



     SECTION 2.05 Registrar and Paying Agent. The Company shall maintain an office or agency
where Debentures may be presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Debentures may be presented for payment (the “Paying Agent”). The
Corporate Trust Office shall be considered as one such office or agency of the Company for each of
the aforesaid purposes. The Registrar shall keep a register of the Debentures (the “Register”) and
of their transfer and exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term “Paying Agent” includes any additional paying agent, and the
term “Registrar” includes any co-registrars. The Company initially appoints the Trustee as (i)
Registrar and Paying Agent in connection with the Debentures, (ii) the custodian with respect to
the Global Debentures and (iii) conversion agent.



     The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture, which shall incorporate the terms of the TIA. The



20









 




agreement shall implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any such agent. If the Company fails
to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any of its domestically
organized wholly owned Subsidiaries may act as Paying Agent or Registrar.




     The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or
Paying Agent and to the Trustee; provided, however, that no such removal shall
become effective until (1) acceptance of an appointment by a successor as evidenced by an
appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as
the case may be, and delivered to the Trustee or (2) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with
clause (1) above. The Registrar or Paying Agent may resign at any time upon written notice;
provided, however, that the Trustee may resign as Paying Agent or Registrar only if
the Trustee also resigns as Trustee in accordance with Section 7.08.



     SECTION 2.06 Paying Agent to Hold Money in Trust. Prior to each due date of the principal
and interest on any Debenture, the Company shall deposit with the Paying Agent (or if the Company
or a Subsidiary thereof is acting as Paying Agent, segregate and hold in trust for the benefit of
the Persons entitled thereto) a sum sufficient to pay such principal and interest when so becoming
due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that
the Paying Agent shall hold in trust for the benefit of Debentureholders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest on the Debentures and shall
notify the Trustee of any default by the Company in making any such payment. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent.
Upon complying with this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.



     SECTION 2.07 Debentureholder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of
Debentureholders. If the Trustee is not the Registrar, the Company shall furnish, or cause the
Registrar to furnish, to the Trustee, in writing at least five Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of
Debentureholders.



     SECTION 2.08 Exchange and Registration of Transfer of Debentures; Restrictions on Transfer.
(a) The Company shall cause to be kept at the Corporate Trust Office the Register in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Debentures and of transfers of Debentures. The Register shall be in written form or
in any form capable of being converted into written form within a reasonably prompt period of time.



     Upon surrender for registration of transfer of any Debentures to the Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.08, the



21









 




Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of any authorized denominations
and of a like aggregate principal amount and bearing such restrictive legends as may be required by
this Indenture.




     Debentures may be exchanged for other Debentures of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Debentures to be exchanged at any such office or
agency maintained by the Company pursuant to Section 4.02. Whenever any Debentures are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Debentures that the Holder making the exchange is entitled to receive bearing
registration numbers not contemporaneously outstanding.



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



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



     No service charge shall be made to any Holder for any registration of, transfer or exchange of
Debentures, but the Company or the Trustee may require payment by the Holder of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Debentures.



     Neither the Company nor the Trustee nor any Registrar shall be required to exchange, issue or
register a transfer of (a) any Debentures for a period of fifteen calendar days next preceding date
of mailing of a notice of redemption, (b) any Debentures or portions thereof called for redemption
pursuant to Section 3.02, except for the unredeemed portion of any Debentures being redeemed in
part, (c) any Debentures or portions thereof surrendered for conversion pursuant to Article 10 or
(d) any Debentures or portions thereof tendered for repurchase (and not withdrawn) pursuant to
Section 3.04.



     (b) The following provisions shall apply only to Global Debentures:




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




     (ii) Notwithstanding any other provision in this Indenture, no Global Debenture may be
exchanged in whole or in part for Debentures registered, and no transfer of a Global
Debenture in whole or in part may be registered, in the name of any Person other than the
Depositary or a nominee thereof unless



22









 






     (A) the Depositary (x) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Debenture or (y) has ceased to be a
clearing agency registered under the Exchange Act, and a successor depositary has
not been appointed by the Company within 90 calendar days, or




     (B) the Company, in its sole discretion, notifies the Trustee in writing that
it no longer wishes to have all the Debentures represented by Global Debentures.




Any Global Debentures exchanged pursuant to this Section 2.08(b)(ii) shall be so exchanged
in whole and not in part.




     (iii) In addition, certificated Debentures will be issued in exchange for beneficial
interests in a Global Debenture upon request by or on behalf of the Depositary in accordance
with customary procedures following the request of a beneficial owner seeking to enforce its
rights under the Debentures or this Indenture, including its rights following the occurrence
of an Event of Default.




     (iv) Debentures issued in exchange for a Global Debenture or any portion thereof
pursuant to clause (ii) or (iii) above shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount equal to that of such
Global Debentures 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 Debentures to be exchanged shall be surrendered by
the Depositary to the Trustee, as Registrar, provided that pending completion of the
exchange of a Global Debenture, the Trustee acting as custodian for the Global Debentures
for the Depositary or its nominee with respect to such Global Debentures, shall reduce the
principal amount thereof, 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. Upon any such
surrender or adjustment, the Trustee shall authenticate and make available for delivery the
Debentures issuable on such exchange to or upon the written order of the Depositary or an
authorized representative thereof.




     (v) In the event of the occurrence of any of the events specified in clause (ii) above
or upon any request described in clause (iii) above, the Company will promptly make
available to the Trustee a sufficient supply of certificated Debentures in definitive, fully
registered form, without interest coupons.




     (vi) Neither any members of, or participants in, the Depositary (“Agent Members”) nor
any other Persons on whose behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Debentures registered in the name of the Depositary or
any nominee thereof, 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 Debentures for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company
or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such



23









 






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
Debentures.




     (vii) At such time as all interests in a Global Debenture have been redeemed,
repurchased, converted, cancelled or exchanged for Debentures in certificated form, such
Global Debenture shall, upon receipt thereof, be canceled by the Trustee in accordance with
standing procedures and instructions existing between the Depositary and the custodian for
the Global Debenture. At any time prior to such cancellation, if any interest in a Global
Debenture is redeemed, repurchased, converted, cancelled or exchanged for Debentures in
certificated form, the principal amount of such Global Debenture shall, in accordance with
the standing procedures and instructions existing between the Depositary and the custodian
for the Global Debenture, be appropriately reduced, and an endorsement shall be made on such
Global Debenture, by the Trustee or the custodian for the Global Debenture, at the direction
of the Trustee, to reflect such reduction.



     (c) Every Debenture (and all securities issued in exchange therefor or in substitution
thereof) that bears or is required under this Section 2.08(c) to bear the legend set forth in this
Section 2.08(c) (together with any Common Stock issued upon conversion of the Debentures and
required to bear the legend set forth in Exhibit B, collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.08(c)
(including those set forth in the legend below and the legend set forth in Exhibit B)
unless such restrictions on transfer shall be waived by written consent of the Company following
receipt of legal advice supporting the permissibility of the waiver of such transfer restrictions,
and the holder of each such Restricted Security, by such holder’s acceptance thereof, agrees to be
bound by all such restrictions on transfer. As used in this Section 2.08(c), the term “transfer”
means any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted Security
or any interest therein.



     Until May 16, 2009, (the “144 Holding Period”), any certificate evidencing a Restricted
Security shall bear a legend in substantially the following form (or as set forth in Exhibit
B, in the case of Common Stock issued upon conversion of the Debentures), unless such
Restricted Security has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the time of such
transfer) or sold pursuant to Rule 144 under the Securities Act or any similar provision then in
force, or unless otherwise agreed by the Company in writing as set forth above, with written notice
thereof to the Trustee:




     THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION
HEREOF OR A BENEFICIAL INTEREST HEREIN, THE HOLDER:



24









 






     (1) AGREES THAT IT WILL NOT, PRIOR TO MAY 16, 2009, RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK THAT MAY BE ISSUABLE UPON CONVERSION OF SUCH
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT OF 1933, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER, OR (D) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT OF 1933, INCLUDING UNDER RULE 144, IF AVAILABLE, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH TRANSFER, TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY AND
THE TRUSTEE; AND




     (2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(A) AND 1(C) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.



     In connection with any transfer of the Debentures prior to the expiration of the 144 Holding
Period applicable to sales of the Debentures under Rule 144 under the Securities Act (other than a
transfer pursuant to clause 2(C) of the legend set forth above), the Holder must complete and
deliver the transfer certificate contained in this Indenture to the Trustee (or any successor
Trustee, as applicable). If the proposed transfer is pursuant to clause 2(D) of the legend set
forth above, the Holder must, prior to such transfer, furnish to the Trustee (or any successor
Trustee, as applicable), such certifications, legal opinions or other information as the Company
may reasonably require to confirm that such transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the Securities Act. The
Trustee shall make the transfers pursuant to clause 2(D) of the legend set forth above only upon
written confirmation from the Company that the certifications, legal opinions or other information
furnished to the Trustee are satisfactory to the Company. The legend set forth above will be
removed upon the earlier of the transfer of the Debentures evidenced thereby pursuant to clause
2(C) of the legend set forth above or the expiration of the 144 Holding Period.



     Any Debentures that are Restricted Securities and as to which such restrictions on transfer
shall have expired in accordance with their terms or as to conditions for removal of the foregoing
legend set forth therein have been satisfied may, upon surrender of such Debentures for exchange to
the Registrar in accordance with the provisions of this Section 2.08(c), be exchanged for a new
Debenture or Debentures, of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.08(c). If such Restricted Security surrendered for
exchange is represented by a Global Debenture bearing the legend set forth in this Section 2.08(c),
the principal amount of the legended Global Debentures shall be reduced by the appropriate
principal amount and the principal amount of a Global Debenture without the legend set forth in
this Section 2.08(c) shall be increased by an equal principal



25









 




amount. If a Global Debenture without the legend set forth in this Section 2.08(c) is not then
outstanding, the Company shall execute and the Trustee shall authenticate and deliver an unlegended
Global Debentures to the Depositary.




     (d) Prior to the expiration of the 144 Holding Period, any Restricted Securities, purchased or
owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate
unless registered under the Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such Debentures or Common
Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144).



     (e) The Trustee shall have no responsibility or obligation to any Agent Members or any other
Person with respect to the accuracy of the books or records, or the acts or omissions, of the
Depositary or its nominee or of any participant or member thereof, with respect to any ownership
interest in the Debentures or with respect to the delivery to any Agent Member or other Person
(other than the Depositary) of any notice (including any notice of redemption) or the payment of
any amount, under or with respect to such Debentures. All notices and communications to be given
to the Holders of Debentures and all payments to be made to Holders of Debentures under the
Debentures shall be given or made only to or upon the order of the registered Holders of Debentures
(which shall be the Depositary or its nominee in the case of a Global Debenture). The rights of
beneficial owners in any Global Debentures shall be exercised only through the Depositary subject
to the customary procedures of the Depositary. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depositary with respect to its Agent Members.



     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 Debentures (including any transfers between or among Agent
Members) other than to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to form with the express
requirements hereof.



     SECTION 2.09 Replacement Debentures. If a mutilated Debenture is surrendered to the
Registrar or if the Debentureholder of a Debenture claims that the Debenture has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Debenture if the requirements of Section 8-405 of the Uniform Commercial Code are met,
such that the Debentureholder (i) satisfies the Company and the Trustee within a reasonable time
after he has notice of such loss, destruction or wrongful taking and the Registrar does not
register a transfer prior to receiving such notification, (ii) makes such request to the Company
and the Trustee prior to the Debenture being acquired by a protected purchaser as defined in
Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and (iii) satisfies any
other reasonable requirements of the Trustee and the Company. If required by the Trustee or the
Company, such Debentureholder shall furnish an indemnity bond sufficient in the judgment of the
Trustee to protect the Company, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Debenture is replaced. The Company and the Trustee may charge the
Debentureholder for their expenses in replacing a Debenture. In



26









 




case any Debenture which has matured or is about to mature or has been called for redemption or has
been properly tendered for repurchase on a Fundamental Change Repurchase Date (and not withdrawn),
or is to be converted into Common Stock, shall become mutilated or be destroyed, lost or wrongfully
taken, the Company may, instead of issuing a substitute Debenture, pay or authorize the payment of
or convert or authorize the conversion of the same (without surrender thereof except in the case of
a mutilated Debenture), as the case may be, if the applicant for such payment or conversion shall
furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or in connection with such substitution, and, in every case of
destruction, loss or wrongful taking, the applicant shall also furnish to the Company, the Trustee
and, if applicable, any Paying Agent or conversion agent evidence to their satisfaction of the
destruction, loss or wrongful taking of such Debentures and of the ownership thereof.




     Every replacement Debenture is an additional obligation of the Company.



     The provisions of this Section 2.09 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, lost,
destroyed or wrongfully taken Debentures.



     SECTION 2.10 Outstanding Debentures. Debentures outstanding at any time are all Debentures
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. A Debenture does not cease to
be outstanding because the Company or an Affiliate of the Company holds the Debenture.



     If a Debenture is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee and the Company receive proof satisfactory to them that the replaced Debenture is held by a
protected purchaser.



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



     SECTION 2.11 Temporary Debentures. Pending the preparation of Debentures in certificated
form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee
shall, upon the written request of the Company, authenticate and deliver temporary Debentures
(printed or lithographed). Temporary Debentures shall be issuable in any authorized denomination,
and substantially in the form of the Debentures in certificated form, but with such omissions,
insertions and variations as may be appropriate for temporary Debentures, all as may be determined
by the Company. Every such temporary Debenture shall be executed by the Company and authenticated
by the Trustee or such authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the



27









 




Debentures in certificated form. Without unreasonable delay, the Company will execute and deliver
to the Trustee or such authenticating agent Debentures in certificated form and thereupon any or
all temporary Debentures may be surrendered in exchange therefor, at each office or agency
maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating agent
shall authenticate and make available for delivery in exchange for such temporary Debentures an
equal aggregate principal amount of Debentures in certificated form. Such exchange shall be made by
the Company at its own expense and without any charge therefor. Until so exchanged, the temporary
Debentures shall in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as Debentures in certificated form authenticated and delivered
hereunder.




     SECTION 2.12 Cancellation. The Company at any time may deliver Debentures to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Debentures
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel all Debentures surrendered for registration of transfer, exchange, payment or
cancellation and dispose of such canceled Debentures in accordance with its customary procedures or
deliver canceled Debentures to the Company. The Company may not issue new Debentures to replace
Debentures it has redeemed, paid or delivered to the Trustee for cancellation. The Trustee shall
not authenticate Debentures in place of canceled Debentures other than pursuant to the terms of
this Indenture.



     SECTION 2.13 CUSIP and ISIN Numbers. The Company in issuing the Debentures may use “CUSIP”
and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and “ISIN”
numbers in notices of redemption as a convenience to Debentureholders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification numbers printed on the
Debentures, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee in writing of any changes to the CUSIP and
ISIN numbers.



ARTICLE 3

REDEMPTION AND REPURCHASE OF DEBENTURES




     SECTION 3.01 Optional Redemption of Debentures.




     (a) The Debentures may be redeemed at the Company’s option as provided in Section 5 of the
Debentures.



     (b) The Company may not redeem any Debentures if a Default in the payment of interest on the
Debentures has occurred and is continuing.



     SECTION 3.02 Company Redemption Election Notice; Selection of Debentures to be Redeemed.
In case the Company shall desire to exercise the right to redeem all or, as the case may be, any
part of the Debentures pursuant to Section 3.01, it shall fix a date for redemption (which shall be
a Business Day) (the “Company Redemption Date”) and it or, at its written request received by the
Trustee not fewer than five Business Days prior (or such shorter



28









 




period of time as may be acceptable to the Trustee) to the date the notice of redemption is to be
mailed, the Trustee in the name of and at the expense of the Company, shall mail or cause to be
mailed a notice of such redemption (the “Company Redemption Election Notice” and the date such
notice is given, the “Redemption Election Notice Date”) not fewer than 30 calendar days nor more
than 60 calendar days prior to the Company Redemption Date to each Holder of Debentures so to be
redeemed in whole or in part at its last address as the same appears on the Register;
provided that if the Company makes such request of the Trustee, it shall, together with
such request, also deliver any Company Redemption Election Notice to the Trustee, provided
that the text of the Company Redemption Election Notice shall be prepared by the Company. Such
mailing shall be by first class mail. A Company Redemption Election Notice, if mailed in the
manner herein provided, shall be conclusively presumed to have been duly given, whether or not the
Holder receives such Company Redemption Election Notice. In any case, failure to give such Company
Redemption Election Notice by mail or any defect in such Company Redemption Election Notice to the
Holder of any Debentures designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debentures.



Each such Company Redemption Election Notice shall specify:




     (1) the aggregate principal amount of Debentures to be redeemed;



     (2) the CUSIP number or numbers of the Debentures being redeemed;



     (3) the Company Redemption Date;



     (4) the Company Redemption Price;



     (5) the place or places of payment and that payment will be made upon presentation and
surrender of such Debentures;



     (6) that interest accrued and unpaid to, but excluding, the Company Redemption Date will be
paid as specified in said Company Redemption Election Notice, and that on and after said Company
Redemption Date interest thereon or on the portion thereof to be redeemed will cease to accrue
(unless the Company shall default in the payment of such Debentures at the Company Redemption
Price);



     (7) that the Holder has a right to convert the Debentures called for redemption at any time
before 5:00 p.m., New York City time, on the Business Day immediately preceding said Company
Redemption Date;



     (8) the Conversion Rate on the date of such Company Redemption Election Notice; and



     (9) the calculation of the Interest Make-Whole, if any, that would be due if the Debentures
called for redemption were converted on the Business Day immediately preceding said Company
Redemption Date.



     If fewer than all the Debentures are to be redeemed, the Company Redemption Election Notice
shall identify the Debentures to be redeemed (including CUSIP numbers, if any). In case



29









 




any Debentures are to be redeemed in part only, the Company Redemption Election Notice shall
state the portion of the principal amount thereof to be redeemed and shall state that, on and after
the redemption date, upon surrender of such Debentures, a new Debentures or Debentures in principal
amount equal to the unredeemed portion thereof will be issued.




     Whenever any Debentures are to be redeemed, the Company will give the Trustee written notice
of such Company Redemption Date, together with an Officers’ Certificate as to the aggregate
principal amount of Debentures to be redeemed not fewer than 35 calendar days (or such shorter
period of time as may be acceptable to the Trustee) prior to the Company Redemption Date.



     On or prior to the Company Redemption Date specified in the Company Redemption Election Notice
given as provided in this Section 3.02, the Company will deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 2.06) an amount of money in immediately available funds sufficient to redeem on such
Company Redemption Date all the Debentures (or portions thereof) so called for redemption (other
than those theretofore surrendered for conversion) at the appropriate redemption price, together
with accrued and unpaid interest to, but excluding, the Company Redemption Date; provided
that if such payment is made on the Company Redemption Date, it must be received by the Paying
Agent, by 11:00 a.m., New York City time, on such date. If any Debentures called for redemption are
converted pursuant hereto prior to such Company Redemption Date, any money deposited with the
Paying Agent or so segregated and held in trust for the redemption of such Debentures shall be paid
to the Company or, if then held by the Company, shall be discharged from such trust.



     If less than all of the outstanding Debentures are to be redeemed, the Trustee shall select
the Debentures or portions thereof of the Global Debentures or the Debenture in certificated form
to be redeemed (in principal amounts of $1,000 or integral multiples of $1 thereof) by lot, at random, on a pro
rata basis or by another method the Trustee deems fair and appropriate. If any Debenture selected
for redemption is submitted for conversion in part after such selection, the portion of such
Debenture submitted for conversion shall be deemed (so far as may be possible) to be the portion to
be selected for redemption. The Debentures (or portions thereof) so selected for redemption shall
be deemed duly selected for redemption for all purposes hereof, notwithstanding that any such
Debentures are submitted for conversion in part before the mailing of the Company Redemption
Election Notice.



     Upon any redemption of less than all of the outstanding Debentures, the Company and the
Trustee may (but need not), solely for purposes of determining the pro rata allocation among such
Debentures that are unconverted and outstanding at the time of redemption, treat as outstanding any
Debentures surrendered for conversion during the period of fifteen calendar days preceding the
mailing of a notice of redemption and may (but need not) treat as outstanding any Debentures
authenticated and delivered during such period in exchange for the unconverted portion of any
Debentures converted in part during such period.



     SECTION 3.03 Payment of Debentures Called for Redemption. If the Company Redemption
Election Notice has been given as provided in Section 3.02, the Debentures or portion of Debentures
with respect to which such Company Redemption Election Notice has



30









 




been given shall, unless converted pursuant to the terms hereof, become due and payable on the date
fixed for redemption and at the place or places stated in such Company Redemption Election Notice
at the Company Redemption Price (unless such Company Redemption Date falls after a Record Date and
on or prior to the corresponding interest payment date, then the interest payable on such interest
payment date shall be paid on such interest payment date to the Holders of record of the Debentures
on the applicable Record Date instead of the Holders surrendering the Debentures for repurchase on
such date), and, unless the Company shall default in the payment of such Debentures at the Company
Redemption Price, interest shall cease to accrue on and after such date and, after 5:00 p.m., New
York City time, on the Business Day immediately preceding the Company Redemption Date (unless the
Company shall default in the payment of such Debentures at the Company Redemption Price), such
Debentures shall cease to be convertible and, except as provided in Section 2.06 and Section 8.02,
to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have
no right in respect of such Debentures except the right to receive the Company Redemption Price
with respect thereto plus, if applicable, accrued and unpaid interest to, but excluding, the
Company Redemption Date. On presentation and surrender of such Debentures at a place of payment in
said notice specified, the said Debentures or the specified portions thereof shall be paid and
redeemed by the Company at the Company Redemption Price; provided that if the applicable
Company Redemption Date is after the applicable Record Date and on or before an interest payment
date, the interest payable on such interest payment date shall be paid on such interest payment
date to the Holders of record of such Debentures on the applicable Record Date instead of the
Holders surrendering such Debentures for redemption on such date.




     Upon presentation of any Debentures redeemed in part only, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of
the Company, a new Debenture or Debentures, of authorized denominations, in principal amount equal
to the unredeemed portion of the Debentures so presented.



     Notwithstanding the foregoing, the Trustee shall not redeem any Debentures or mail any notice
of redemption during the continuance of a Default known to it in payment of interest on the
Debentures. If any Debentures called for redemption shall not be so paid upon surrender thereof
for redemption on the redemption date as provided in this Section 3.03, to the extent legally
permissible, the redemption price shall, until paid or duly provided for, bear interest from and
including the redemption date at the rate borne by the Debentures and such Debentures shall remain
convertible into Common Stock until the redemption price and interest shall have been paid or duly
provided for.



     SECTION 3.04 Repurchase at Option of Holders Upon a Fundamental Change. (a) If there shall
occur a Fundamental Change at any time prior to maturity of the Debentures, then each Holder of
Debentures shall have the right, at such Holder’s option, to require the Company to repurchase all
of such Holder’s Debentures, or any portion thereof that is a multiple of $1 principal amount,
on a date (the “Fundamental Change Repurchase Date”) which shall be a date that is not less than 20
calendar days nor more than 35 calendar days after the date of the Company Repurchase Notice
related to such Fundamental Change, at a cash repurchase price equal to 100% of the principal
amount of the Debentures being repurchased, plus accrued and unpaid interest to, but excluding, the
Fundamental Change Repurchase Date, subject to the satisfaction by the Holder of the requirements
set forth in Section 3.04(c); provided



31









 




that if such Fundamental Change Repurchase Date falls after a Record Date (i) for the payment of
interest and on or prior to the corresponding interest payment date, then the interest payable on
such interest payment date shall be paid on such date to the Holders of record of the Debentures on
the applicable Record Date instead of the Holders surrendering the Debentures for repurchase on
such date and (ii) for the payment of principal and on or prior to the corresponding Principal
Payment Date, then the principal payable on such date shall be paid on such date to the Holders of
record of the Debentures on the applicable Record Date instead of the Holders surrendering the
Debentures for repurchase on such date.




     (b) On or before the tenth Business Day after the Company knows or reasonably should know of
the occurrence of a Fundamental Change, the Company shall mail or deliver or cause to be mailed or
delivered to all Holders of record of the Debentures on the date of the Fundamental Change at their
addresses shown in the Register (and to beneficial owners of the Debentures as required by
applicable law) a Company Repurchase Notice as set forth in Section 3.05 with respect to such
Fundamental Change. The Company shall also deliver a copy of the Company Repurchase Notice to the
Trustee and the Paying Agent at such time as it is mailed to Holders of Debentures.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
repurchase rights of Holders of Debentures or affect the validity of the proceedings for the
repurchase of the Debentures pursuant to this Section 3.04.



     (c) For Debentures to be repurchased at the option of the Holder, the Holder must deliver to
the Paying Agent, at any time during the period beginning upon receipt of the Company Repurchase
Notice and prior to 5:00 p.m., New York City time on the Fundamental Change Repurchase Date (the
“Fundamental Change Period”), (i) a written notice of repurchase (the “Repurchase Notice”) in the
form set forth on the reverse of the Debentures duly completed (if the Debentures are certificated)
or stating the following (if the Debentures are represented by a Global Debenture): (A) the
certificate number of the Debentures which the Holder will deliver to be repurchased or compliance
with the appropriate Depositary procedures, (B) the portion of the principal amount of the
Debentures which the Holder will deliver to be repurchased, which portion must be in principal
amounts of $1,000 or an integral multiple of $1 thereof and (C) that such Debentures shall be
repurchased by the Company pursuant to the terms and conditions specified in the Debentures and in
this Indenture, together with (ii) such Debentures duly endorsed for transfer (if the Debentures
are certificated) or book-entry transfer of such Debentures (if such Debentures are represented by
a Global Debenture). The delivery of such Debentures to the Paying Agent (together with all
necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by
the Holder of the repurchase price therefore; provided, however, that such
repurchase price shall be so paid pursuant to this Section 3.04 only if the Debentures so delivered
to the Paying Agent shall conform in all respects to the description thereof in the Repurchase
Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance
of any Debentures for repurchase shall be determined by the Company, whose determination shall be
final and binding absent manifest error.



     (d) The Company shall repurchase from the Holder thereof, pursuant to this Section 3.04, a
portion of a Debenture, if the principal amount of such portion is $1,000 or a whole



32









 




multiple of $1. Provisions of this Indenture that apply to the repurchase of all of a
Debenture also apply to the repurchase of such portion of such Debenture.




     (e) The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase
Notice or written notice of withdrawal thereof.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.04
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Debentures.



     SECTION 3.05 Company Repurchase Notice. In connection with any repurchase of Debentures
pursuant to Section 3.04, the notice contemplated by such provision (the “Company Repurchase
Notice”) shall:



     (1) state the repurchase price and the Fundamental Change Repurchase Date to which the Company
Repurchase Notice relates;



     (2) state, if applicable, the circumstances constituting the Fundamental Change;



     (3) state that the repurchase price will be paid in cash;



     (4) state that Holders must exercise their right to elect repurchase prior to 5:00 p.m., New
York City time, on the Fundamental Change Repurchase Date;



     (5) include a form of Repurchase Notice;



     (6) state the name and address of the Paying Agent;



     (7) state that Debentures must be surrendered to the Paying Agent to collect the repurchase
price;



     (8) state that a Holder may withdraw its Repurchase Notice at any time prior to 5:00 p.m., New
York City time, on the Fundamental Change Repurchase Date by delivering a valid written notice of
withdrawal in accordance with Section 3.06;



     (9) state whether the Debentures are then convertible, the then applicable Conversion Rate,
including expected changes in the Conversion Rate resulting from the related Fundamental Change
transaction and expected changes in the cash, shares or other property deliverable upon conversion
of the Debentures as a result of the occurrence of the Fundamental Change, including whether any
Make-Whole Consideration is payable upon a conversion in connection with the Fundamental Change;



     (10) state that Debentures as to which a Repurchase Notice has been given may be converted
only if the Repurchase Notice is withdrawn in accordance with the terms of this Indenture;



33









 





     (11) state the amount of interest accrued and unpaid per $1,000 principal amount of Debentures
to, but excluding, the Fundamental Change Repurchase Date; and



     (12) state the CUSIP number of the Debentures. A Company Repurchase Notice may be given by the
Company or, at the Company’s request, the Trustee shall give such Company Repurchase Notice in the
Company’s name and at the Company’s expense; provided, that the text of the Company
Repurchase Notice shall be prepared by the Company.



     The Company will, to the extent applicable, comply with the provisions of Rule 13e-4 and Rule
14e-1 (or any successor provision) under the Exchange Act that may be applicable at the time of the
repurchase of the Debentures, file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act and comply with all other federal and state securities laws in
connection with the repurchase of the Debentures.



     SECTION 3.06 Effect of Repurchase Notice; Withdrawal. Upon receipt by the Paying Agent of
the Repurchase Notice specified in Section 3.04, the Holder of the Debentures in respect of which
such Repurchase Notice was given shall (unless such Repurchase Notice is validly withdrawn in
accordance with the following paragraph) thereafter be entitled to receive solely the repurchase
price with respect to such Debentures. Such repurchase price shall be paid to such Holder, subject
to receipt of funds and/or the Debentures by the Paying Agent, promptly following the later of (x)
the Fundamental Change Repurchase Date with respect to such Debentures (provided the Holder has
satisfied the conditions in Section 3.04) and (y) the time of book-entry transfer or delivery of
such Debentures to the Paying Agent by the Holder thereof in the manner required by Section 3.04.
The Debentures in respect of which a Repurchase Notice has been given by the Holder thereof may not
be converted pursuant to Article 10 hereof on or after the date of the delivery of such Repurchase
Notice unless such Repurchase Notice has first been validly withdrawn.



     A Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent in accordance with the Repurchase Notice at any time prior to 5:00
p.m., New York City time, on the Fundamental Change Repurchase Date specifying:



     (a) the certificate number, if any, of the Debenture in respect of which such notice of
withdrawal is being submitted, or the appropriate Depositary information, in accordance with
appropriate Depositary procedures, if the Debenture in respect of which such notice of withdrawal
is being submitted is represented by a Global Debenture,



     (b) the principal amount of the Debentures with respect to which such notice of withdrawal is
being submitted, and



     (c) the principal amount, if any, of such Debentures which remains subject to the original
Repurchase Notice and which has been or will be delivered for repurchase by the Company.



     If a Repurchase Notice is properly withdrawn, the Company shall not be obligated to repurchase
the Debentures listed in such Repurchase Notice.



34









 





     SECTION 3.07 Deposit of Repurchase Price. Prior to 11:00 a.m., New York City Time, on the
Business Day following the Fundamental Change Repurchase Date, the Company shall deposit with the
Paying Agent or, if the Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.06, an amount of cash (in immediately available funds if deposited on the
Fundamental Change Repurchase Date), sufficient to pay the aggregate repurchase price of all the
Debentures or portions thereof that are to be repurchased as of the Fundamental Change Repurchase
Date.



     If on the Business Day following the Fundamental Change Repurchase Date the Paying Agent holds
cash sufficient to pay the repurchase price of the Debentures that Holders have elected to require
the Company to repurchase in accordance with Section 3.04, as the case may be, then, as of the
Fundamental Change Repurchase Date, such Debentures will cease to be outstanding, interest will
cease to accrue and all other rights of the Holders of such Debentures will terminate, other than
the right to receive the repurchase price upon delivery or book-entry transfer of the Debentures.
This will be the case whether or not book-entry transfer of the Debentures has been made or the
Debentures have been delivered to the Paying Agent.



     SECTION 3.08 Debentures Repurchased in Part. Upon presentation of any Debentures
repurchased only in part, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof, at the expense of the Company, a new Debenture or
Debentures, of any authorized denomination, in aggregate principal amount equal to the
unrepurchased portion of the Debentures presented.



     SECTION 3.09 Repayment of Debentures Upon Asset Sale. The Debentures shall be subject
to repayment upon the occurrence of an Asset Sale as and to the extent provided in Section 1(d) of
the Debentures.



ARTICLE 4

COVENANTS




     SECTION 4.01 Payment of Debentures. The Company shall promptly pay the principal of and
interest on the Debentures on the dates and in the manner provided in the Debentures and in this
Indenture. Principal and interest shall be considered paid on the date due if on such date the
Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not
prohibited from paying such money to the Debentureholders on that date pursuant to the terms of
this Indenture.



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



     SECTION 4.02 Maintenance of Office or Agency. The Company will maintain an office or agency
in the United States, where the Debentures may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion, redemption or repurchase and where
notices and demands to or upon the Company in respect of the Debentures and this Indenture may be
served. As of the date of this Indenture, such office is



35









 




located at the office of the Trustee located at 1445 Ross Avenue, 2nd Floor, Dallas,
Texas 75202-2812 and, at any other time, at such other address as the Trustee may designate from
time to time by notice to the Company. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency not designated or
appointed by the Trustee. 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.




     The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Debentures may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations. 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.



     So long as the Trustee is the Registrar, the Trustee agrees to mail, or cause to be mailed,
the notices set forth in Section 7.08. If co-registrars have been appointed in accordance with
this Section, the Trustee shall mail such notices only to the Company and the Holders of Debentures
it can identify from its records.



     SECTION 4.03 144A Information. The Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to
any Holder or beneficial owner of Debentures or holder or beneficial owner of any Common Stock
(collectively, for purposes of this Section 4.03, “holder”) issued upon conversion thereof which
continue to be Restricted Securities and any prospective purchaser of Debentures or such Common
Stock designated by such holder, the information required pursuant to Rule 144A(d)(4) under the
Securities Act upon the request of any holder of the Debentures or such Common Stock, all to the
extent required to enable such holder to sell its Debentures or Common Stock without registration
under the Securities Act within the limitation of the exemption provided by Rule 144A until such
time as such securities are no longer “restricted securities” within the meaning of Rule 144 under
the Securities Act, assuming such securities are not owned by Affiliate of the Company.



     SECTION 4.04 Existence. Except in compliance with Article 5, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect its existence and
rights (charter and statutory); provided that the Company shall not be required to preserve
any such right if the Company shall determine that the preservation thereof is 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 of Debentures.



     SECTION 4.05 Payment of Taxes and Other Claims. The Company will pay or discharge, or cause
to be paid or discharged, before the same may become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Significant Subsidiary or upon the
income, profits or property of the Company or any Significant Subsidiary and (ii) all claims for
labor, materials and supplies which, if unpaid, might by law become a lien or charge upon the
property of the Company or any Significant Subsidiary; provided 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 (A) if the failure to do so will not, in the



36









 




aggregate, have a material adverse impact on the Company, or (B) if the amount, applicability or
validity is being contested in good faith by appropriate proceedings.




     SECTION 4.06 Compliance Certificate(a) . The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company an Officers’ Certificate stating
(a) that a review of the Company’s activities during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture and (b) as to each such
Officer signing such certificate, whether to the best of such Officer’s knowledge the Company
during such preceding fiscal year has kept, observed, performed and fulfilled each and every such
covenant contained in this Indenture and whether or not the signers know of any Default that
occurred during such period. If they do know of any Default, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take with respect thereto.



     SECTION 4.07 Further Instruments and Acts. The Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.



     SECTION 4.08 Intentionally Omitted. 



     SECTION 4.09 Additional Interest Notice. In the event that the Company is required to pay
Additional Interest to Holders of Debentures pursuant to Section 6.13, the Company will provide
written notice (“Additional Interest Notice”) to the Trustee of its obligation to pay Additional
Interest no later than two calendar days prior to the proposed payment date for Additional
Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to
be paid by the Company on such payment date. The Trustee shall not at any time be under any duty or
responsibility to any Holder of Debentures to determine the Additional Interest, or with respect to
the nature, extent or calculation of the amount of Additional Interest when made, or with respect
to the method employed in such calculation of the Additional Interest.



     SECTION 4.10 Reporting Obligation. (a) The Company shall deliver to the Trustee copies of
its annual reports and of information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act within 15 days
after the date the Company is required to file such annual reports, information, documents and
other reports with the SEC.



     (b) For the avoidance of doubt, this Section 4.10 is not intended to create any obligation to
timely file reports with the SEC.



     (c) Delivery of reports, information and other documents under this Section 4.10 to the
Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).



37









 





     SECTION 4.11 Limit on Incurring Additional Indebtedness and Liens. The Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly:



          (a) create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to any Indebtedness other than Permitted Indebtedness; or



          (b) allow or suffer to exist any mortgage, lien, pledge, charge, security interest or other
encumbrance that secures Indebtedness (i) upon or in any property or assets (including accounts and
contract rights) owned by the Company or any of its Subsidiaries, other than Permitted Liens or
(ii) upon or in any Collateral, other than (A) Liens securing any liabilities under the Parent
Credit Facility and any amendment, extension, refinancing, renewal or replacement thereof,
provided that such extension, refinancing, renewal or replacement after the Issue Date
shall not result in aggregate principal amounts at any time outstanding under such Indebtedness in
excess of $35 million and the proceeds of such Indebtedness shall be (or shall have been) used by
the Company or its Subsidiaries for general corporate purposes and (B) Liens described in clauses
(iv), (v), (vi), (vii) and (ix) of the definition of Permitted Liens.



          (c) At any such time that the Company seeks to incur, create, issue, assume, guarantee or
otherwise become directly or indirectly liable for any Consolidated Leverage Ratio Indebtedness in
excess of $10,000,000, individually or in any related series of Consolidated Leverage Ratio
Indebtedness, the Company shall deliver, prior to or contemporaneously with the incurrence of such
Consolidated Leverage Ratio Indebtedness, an Officers’ Certificate to the Trustee (i) certifying
that such Indebtedness constitutes Consolidated Leverage Ratio Indebtedness and (ii) setting forth
the calculation of the Consolidated Leverage Ratio. The Trustee shall deliver a copy of any
Officers’ Certificate delivered to it pursuant to this Section 4.11 to the Holders within five
Business Days of its receipt thereof. For purposes of this section, an Officers’ Certificate
delivered within the time period provided in Form 8-K for disclosure of material information will
be deemed to be provided “contemporaneously with” the incurrence of the applicable Consolidated
Leverage Ratio Indebtedness.



     SECTION 4.12 Changes to 2027 Convertible Debentures.



          (a) Without the prior written consent of Debentureholders of a majority in principal amount of
the Debentures, neither the Company nor any of its Subsidiaries shall take any action to (i) amend,
restate or waive any terms of the 2027 Convertible Debentures that would (x) result in an increase
in the Interest Rate (as defined in the 2027 Indenture as in effect on the Issue Date) or (y)
permit any of the 2027 Convertible Debentures to be redeemed or repurchased prior to August 14,
2013 (other than pursuant to the terms of the 2027 Indenture as in effect on the Issue Date) or
(ii) issue in exchange for the 2027 Convertible Debentures any Indebtedness with any such terms or
provisions.



          (b) The Company hereby covenants and agrees from and after the date hereof that any offers
made by the Company or any Subsidiary thereof to any Person with respect to any amendment,
restatement, settlement or waiver relating to the 2027 Convertible Debentures or any exchange of
the 2027 Convertible Debentures into Common Stock and/or Common Stock Equivalents and/or other
Indebtedness shall be offered to each Debentureholder in an



38









 




economically and legally equivalent manner such that if any such Debentureholders shall accept
such offer, such Debentureholders shall receive the benefit of the terms contained in such
amendment, restatement, settlement or waiver and, if applicable, the exchange of the Debentures
into Common Stock and/or Common Stock Equivalents and/or other Indebtedness on a substantially
equivalent basis.




     SECTION 4.13 Restrictions on Certain Transfers.



          (a) Other than pursuant to or in connection with Permitted Liens, the Company shall not offer
for sale, sell, assign, or transfer (with or without consideration) any interest in any ownership
interest in Trico Marine Assets, Inc. and Trico Marine Operators, (the “Restricted Interests”) now
or hereafter owned of record or beneficially by the Company, nor shall the Company grant or
otherwise permit to exist any Lien thereon without the prior written consent of the Collateral
Agent; provided, however, that the Company may offer, sell, assign or transfer any
such Restricted Interests to any Affiliate of the Company that is incorporated or formed in the
United States and which is a Guarantor.



          (b) The Company shall not, and shall not permit any Subsidiary that owns Collateral to, effect
any Asset Sale of any Collateral to a Subsidiary that is not a Guarantor unless the Asset Sale is
for fair value and on terms no less favorable to the Company or such Subsidiary than would
otherwise be available in an arm’s length transaction with a third party.



ARTICLE 5

SUCCESSOR COMPANY




     SECTION 5.01 When Company May Merge or Transfer Assets. The Company shall not, in a single
transaction or a series of related transactions, consolidate with or merge with or into any other
Person, or sell, convey, transfer or lease all or substantially all of its property and assets to
another Person unless:



     (a) either (i) the Company is the continuing corporation, or (ii) the resulting, surviving or
transferee Person (if other than the Company) is a corporation or limited liability company
organized and existing under the laws of the United States, any state thereof or the District of
Columbia and such Person assumes, by a supplemental indenture in a form reasonably satisfactory to
the Trustee, and a supplemental agreement, all of the Company’s obligations under the Debentures
and this Indenture;



     (b) immediately after giving effect to the transaction described above, no Default or Event of
Default, has occurred and is continuing; and



     (c) the Company has delivered to the Trustee the Officers’ Certificate and Opinion of Counsel
pursuant to Section 5.03.



     SECTION 5.02 Successor to be Substituted. In case of any such consolidation, merger, sale,
conveyance, transfer or lease in which the Company is not the continuing corporation and upon the
assumption by the successor Person, by supplemental indenture, executed and delivered to the
Trustee and reasonably satisfactory in form and substance to the Trustee, of the due and punctual
payment of the principal of, and premium, if any, and interest



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on all of the Debentures, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or satisfied by the Company, such
successor Person shall succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party of this first part, and Trico Marine Services, Inc. shall be
discharged from its obligations under the Debentures and this Indenture. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the name of Trico
Marine Services, Inc. any or all of the Debentures, issuable hereunder that theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Debentures that previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any Debentures that such
successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose.
All the Debentures so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debentures theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the execution hereof. In
the event of any such consolidation, merger, sale, conveyance, transfer or lease, upon compliance
with this Article 5, the Person named as the “Company” in the first paragraph of this Indenture or
any successor that shall thereafter have become such in the manner prescribed in this Article 5 may
be dissolved, wound up and liquidated at any time thereafter and such Person shall be discharged
from its liabilities as obligor and maker of the Debentures and from its obligations under this
Indenture.




     SECTION 5.03 Opinion of Counsel to be Given Trustee. Prior to execution of any supplemental
indenture pursuant to this Article 5, the Trustee shall receive an Officers’ Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or lease and any such assumption complies with the provisions of this Article 5.



ARTICLE 6

DEFAULTS AND REMEDIES




     SECTION 6.01 Events of Default. An “Event of Default” occurs if:



     (a) the Company defaults in any payment of interest (including Additional Interest, if any) on
any Debenture when the same becomes due and payable and such default continues for a period of 30
calendar days;



     (b) the Company defaults in the payment of the principal of any Debenture when the same
becomes due and payable upon redemption or required repurchase, upon declaration or otherwise;



     (c) the Company fails to deliver cash, if applicable, shares of Common Stock (including any
Additional Shares) and any Interest Make-Whole, as required pursuant to Article 10 upon the
conversion of any Debentures and such failure continues for five (5) calendar days following the
scheduled settlement date for such conversion;



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     (d) the Company fails to provide notice of the anticipated effective date or actual effective
date of a Fundamental Change on a timely basis as required by Section 3.04 or 10.01 of this
Indenture;



     (e) the Company fails to comply with any of its agreements contained in the Debentures or this
Indenture (other than those referred to in (a), (b), (c), or (d) above) or in any Security Document
and, in each case, such failure continues for 60 calendar days after the notice specified below (or
30 days in the case of Section 4.11);



     (f) indebtedness for borrowed money of the Company or any Significant Subsidiary is not paid
within any applicable grace period after final maturity or the acceleration of any such
indebtedness by the holders thereof because of a default and the total principal amount of such
indebtedness unpaid or accelerated exceeds $30 million or its foreign currency equivalent at the
time and such failure continues for 30 calendar days after the notice specified below;



     (g) the Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:




     (1) commences a voluntary case;




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




     (3) consents to the appointment of a Custodian of it or for any substantial part of its
property;




     (4) makes a general assignment for the benefit of its creditors; or




     (5) takes any comparable action under any foreign laws relating to insolvency;



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




     (1) is for relief against the Company or any Significant Subsidiary in an involuntary
case;




     (2) appoints a Custodian of the Company or any Significant Subsidiary or for any
substantial part of its property;




     (3) orders the winding up or liquidation of the Company or any Significant Subsidiary;
or




     (4) any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days.



     (i) any Security Document (other than the Intercreditor Agreement), after delivery thereof
pursuant hereto, shall for any reason fail to create or maintain a valid perfected Second Lien in
favor of the Trustee, for the benefit of the Holders of the Debentures, on the Collateral
purported to be covered thereby, except, in each case (i) as expressly permitted by the Security



41









 




Documents or (ii) as a result of the failure of the Trustee (or any Person acting on its
behalf) to file Uniform Commercial Code financing statements or to take any other action necessary
to maintain the perfection of such Lien, and such failure continues for 10 calendar days after the
notice specified below (except to the extent such failure arises in connection with any breach by
the Company or any of its Subsidiaries of any of its notification obligations set forth in the
Security Documents).




     The foregoing shall constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.



     The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state
law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Law.



     A Default under clause (e), (f) or (i) above is not an Event of Default until the Trustee or
the Debentureholders of at least 25% in principal amount of the outstanding Debentures notify the
Company of the Default and the Company does not cure such Default within the time specified in such
clause (e), (f) or (i) after receipt of such notice. Such notice must specify the Default, demand
that it be remedied and state that such notice is a “Notice of Default”.



     The Company shall deliver to the Trustee, promptly after the occurrence thereof, written
notice in the form of an Officers’ Certificate of any event which with the giving of notice or the
lapse of time would become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.



     SECTION 6.02 Acceleration. Subject to Section 6.13, if an Event of Default (other than an
Event of Default specified in Section 6.01(g) or (h) with respect to the Company or a Guarantor)
occurs and is continuing, the Trustee by notice to the Company, or the Debentureholders of at least
25% in principal amount of the outstanding Debentures by notice to the Company, may declare the
outstanding principal of and accrued but unpaid interest on all the Debentures to be due and
payable. Upon such a declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(g) or (h) occurs with respect to the Company or a
Guarantor, the principal of and interest on all the Debentures shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Debentureholders. The Debentureholders of a majority in principal amount of the Debentures by
written notice to the Trustee may rescind an acceleration and its consequences (including votes for
or consents to such a rescission obtained in connection with a purchase of, or tender offer or
exchange offer for, Debentures) if the rescission (i) would not conflict with any judgment or
decree; (ii) if all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration; and (iii) if the Company
has paid the compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel. No such rescission shall affect any subsequent Default or impair any right consequent
thereto.




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     SECTION 6.03 Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of or interest on the
Debentures or to enforce the performance of any provision of the Debentures or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Debentures or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Debentureholder in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are cumulative.



     SECTION 6.04 Waiver of Past Defaults. Subject to Section 6.02, the Holders of a majority in
principal amount of the Debentures then outstanding by written notice to the Trustee may waive an
existing Default and its consequences (including votes for or consents to such a waiver obtained in
connection with a purchase of, or tender offer or exchange offer for, Debentures) except (i) a
Default in the payment of the principal of or interest (including Additional Interest, if any) on a
Debenture, (ii) a Default arising from the failure to redeem or repurchase any Debenture when
required pursuant to the terms of this Indenture, (iii) a Default arising from the failure of the
Company to deliver cash, if applicable, Common Stock (including any Additional Shares) and Interest
Make-Whole upon the conversion of any Debentures pursuant to the terms of this Indenture or (iv) a
Default in respect of a provision that under Section 9.02 cannot be amended without the consent of
each Debentureholder affected. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right.



     SECTION 6.05 Control by Majority. The Debentureholders of a majority in principal amount of
the Debentures may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to
Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other
Debentureholders or would involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses and expenses caused by
taking or not taking such action.



     SECTION 6.06 Limitation on Suits. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Debentureholder may pursue any remedy with
respect to this Indenture or the Debentures unless:



     (a) the Debentureholder gives to the Trustee written notice stating that an Event of Default
is continuing;



     (b) the Debentureholders of at least 25% in principal amount of the Debentures make a written
request to the Trustee to pursue the remedy;



43









 





     (c) such Debentureholder or Debentureholders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense;



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



     (e) the Debentureholders of a majority in principal amount of the Debentures do not give the
Trustee a direction inconsistent with the request during such 60-day period. A Debentureholder may
not use this Indenture to prejudice the rights of another Debentureholder or to obtain a preference
or priority over another Debentureholder.



     SECTION 6.07 Rights of Debentureholders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Debentureholder to receive payment of principal of
and liquidated damages and interest on the Debentures held by such Debentureholder, on or after the
respective due dates expressed in the Debentures, or to convert such Debenture in accordance with
Article 10, or to bring suit for the enforcement of any such payment or right to convert on or
after such respective dates, shall not be impaired or affected without the consent of such
Debentureholder.



     SECTION 6.08 Collection Suit by Trustee. If an Event of Default specified in Section
6.01(a) or (b) occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount then due and owing (together
with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.



     SECTION 6.09 Trustee May File Proofs of Claim. The Trustee may file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee and the Debentureholders allowed in any judicial proceedings relative to the Company, its
creditors or its property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Debentureholders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Debentureholder to make payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Debentureholders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section
7.07.



     SECTION 6.10 Priorities. If the Trustee collects any money or property pursuant to this
Article 6, it shall pay out the money or property in the following order:



     FIRST: to the Trustee for amounts due under Section 7.07;



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



     THIRD: to the Company.



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



     SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, or a suit by Debentureholders of more than 10% in
principal amount of the Debentures or to any suit instituted by any Holder of Debentures for the
enforcement of the payment of the principal of, or premium, if any, or interest on any Debentures
on or after the due date expressed in such Debentures or to any suit for the enforcement of the
right to convert any Debentures in accordance with the provisions of Article 10.



     SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The Company shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.



     SECTION 6.13 Sole Remedy for Failure to Report. Notwithstanding any other provision of this
Indenture, the sole monetary remedy for an Event of Default relating to the failure of the Company
to comply with its agreements under Section 4.10 of this Indenture and for any failure of the
Company to comply with the requirements of Section 314(a)(1) of the TIA will, for the 365 days
after the occurrence of such an Event of Default, consist exclusively of the right to receive
additional interest (“Additional Interest”) on the principal amount of the Debentures at a rate
equal to 0.50% per annum. This Additional Interest will be payable in the same manner and subject
to the same terms as other interest payable under this Indenture. The Additional Interest will
accrue on all outstanding Debentures from and including the date on which such Event of Default
relating to a failure to comply with Section 4.10 hereof or Section 314(a)(1) of the TIA first
occurs to but not excluding the 365th day thereafter (or such earlier date on which the Event of
Default relating to a failure to comply with Section 4.10 hereof or Section 314(a)(1) of the TIA
shall have been cured or waived). On such 365th day (or earlier, if the Event of Default relating
to a failure to comply with Section 4.10 hereof or Section 314(a)(1) of the TIA is cured or waived
prior to such 365th day), such Additional Interest will cease to accrue and the Debentures will be
subject to acceleration and other remedies as provided in this Article 6 if the Event of Default is
continuing. For the avoidance of doubt, the provisions of this Section 6.13 will not affect the
rights of Holders of Debentures in the event of the occurrence of any other Event of Default.



45









 





ARTICLE 7

TRUSTEE




     SECTION 7.01 Duties of Trustee. (a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person’s own affairs.



     The Company hereby irrevocably appoints and authorizes Wells Fargo Bank, National Association,
to act as Trustee under this Indenture and the Security Documents for the benefit of the
Debentureholders with such powers as are specifically delegated to the Trustee by the terms of this
Indenture and such Security Documents, together with such other powers as are reasonably incidental
thereto, and Wells Fargo Bank, National Association hereby accepts such appointment and
authorization.



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




     (1) the Trustee need only perform such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



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




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




     (2) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



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



     (e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.



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



46









 





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



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



     SECTION 7.02 Rights of Trustee. (a) The Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.



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



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



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



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



     (f) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note 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.



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



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



     (i) The Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified



47









 







actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.



     (j) The permissive rights of the Trustee enumerated herein shall not be construed as duties.



     SECTION 7.03 Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Debentures and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Conversion Agent,
Paying Agent, Registrar or co-paying agent may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.



     SECTION 7.04 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Debentures or any Security
Document, it shall not be accountable for the Company’s use of the proceeds from the Debentures,
and it shall not be responsible for any statement of the Company in this Indenture, any Security
Document, or in any document issued in connection with the sale of the Debentures or in the
Debentures other than the Trustee’s certificate of authentication.



     SECTION 7.05 Notice of Defaults. (a) The Trustee shall not be deemed to have notice of any
Default, other than a payment default, unless a Trust Officer shall have been advised in writing
that a Default has occurred. No duty imposed upon the Trustee in this Indenture shall be applicable
with respect to any Default of which the Trustee is not deemed to have notice.



     (b) If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to each Debentureholder notice of the Default within the earlier of 90 days after it occurs or
30 days after it is known to a Trust Officer or written notice of it is received by the Trustee.
Except in the case of a Default in payment of principal, premium (if any) or interest on any
Debenture (including payments pursuant to the redemption provisions of such Debenture), the Trustee
may withhold notice if and so long as a committee of its Trust Officers in good faith determines
that withholding notice is in the interests of the Debentureholders.



     SECTION 7.06 Reports by Trustee to Debentureholders. As promptly as practicable after each
May 15, beginning with May 15, 2010, and in any event prior to December 31 in each subsequent year,
the Trustee shall, to the extent that any of the events described in TIA § 313(a) occurred within
the previous twelve months, but not otherwise, mail to the Company and each Debentureholder a brief
report dated as of May 15 that complies with Section 313(a) of the TIA. The Trustee shall also
comply with Section 313(b) of the TIA.



     A copy of each report shall be filed by the Company with the SEC and, if necessary, each stock
exchange (if any) on which the Debentures are listed. The Company agrees to notify promptly the
Trustee, in writing, whenever the Debentures become listed on any stock exchange and of any
delisting thereof.



     SECTION 7.07 Compensation and Indemnity. The Company shall pay to the Trustee from time to
time such compensation as the Company and the Trustee shall from time to



48









 







time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants
and experts. The Company shall indemnify the Trustee, and hold it harmless, against any and all
loss, liability or expense (including reasonable attorneys’ fees) incurred by or in connection with
the offer and sale of the Debentures or the administration of this trust and the performance of its
duties hereunder. The Trustee shall notify the Company of any claim for which it may seek
indemnity promptly upon obtaining actual knowledge thereof; provided, however, that
any failure so to notify the Company shall not relieve the Company of its indemnity obligations
hereunder. The Company shall defend the claim and the indemnified party shall provide reasonable
cooperation at the Company’s expense in the defense. Such indemnified parties may have separate
counsel and the Company shall pay the fees and expenses of such counsel; provided,
however, that the Company shall not be required to pay such fees and expenses if it assumes
such indemnified parties’ defense and, in such indemnified parties’ reasonable judgment, there is
no conflict of interest between the Company and such parties in connection with such defense. The
Company need not reimburse any expense or indemnify against any loss, liability or expense incurred
by an indemnified party through such party’s own willful misconduct and negligence.



     To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Debentures on all money or property held or collected by the Trustee other than money
or property held in trust to pay principal of and interest and any liquidated damages on particular
Debentures.



     The Company’s payment obligations pursuant to this Section shall survive the satisfaction or
discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy
law or the resignation or removal of the Trustee. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(g) or (h) with respect to the Company, the
expenses are intended to constitute expenses of administration under the Bankruptcy Law.



     SECTION 7.08 Replacement of Trustee. The Trustee may resign at any time by so notifying the
Company. The Holders of a majority in principal amount of the Debentures may remove the Trustee by
so notifying the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee
if:



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



     (b) the Trustee is adjudged bankrupt or insolvent;



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



     (d) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Debentures and such Debentureholders do not reasonably promptly



49









 







appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason
(the Trustee in such event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Debentureholders. The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 7.07.



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



     If the Trustee fails to comply with Section 7.10, any Debentureholder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.



     Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.



     SECTION 7.09 Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.



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



     SECTION 7.10 Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall
comply with TIA § 310(b); provided, however, that there shall be excluded from the
operation of TIA § 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA § 310(b)(1) are met.



     SECTION 7.11 Preferential Collection of Claims Against Company. The Trustee shall comply
with TIA § 311(a), excluding any creditor relationship listed in TIA



50









 




§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated.




ARTICLE 8

DISCHARGE OF INDENTURE




     SECTION 8.01 Discharge of Liability on Debentures. (a) When (i) the Company delivers to
the Trustee all outstanding Debentures (other than Debentures replaced pursuant to Section 2.09)
for cancellation or (ii) all outstanding Debentures have become due and payable, whether at
maturity or upon a redemption or repurchase pursuant to Article 3 hereof, and the Company
irrevocably deposits with the Trustee money sufficient to pay at maturity or upon redemption or
repurchase all outstanding Debentures, including interest thereon to maturity or such redemption or
repurchase date (other than Debentures replaced pursuant to Section 2.09), and any shares of Common
Stock or other property due in respect of converted Debentures, and if in each such case the
Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to
Section 8.01(b), cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel and at the cost and expense of the Company.



     (b) Notwithstanding clause (a) above, the Company’s obligations in Sections 2.05, 2.06, 2.07,
2.08, 2.09, 2.10, 7.07, 7.08 and in this Article 8 shall survive until the Debentures have been
paid in full. Thereafter, the Company’s obligations in Sections 7.07, 8.03 and 8.04 shall survive.



     SECTION 8.02 Application of Trust Money. The Trustee shall hold in trust money and any
shares of Common Stock or other property due in respect of converted Debentures deposited with it
pursuant to this Article 8. It shall apply the deposited money through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on the Debentures or, in
the case of any shares of Common Stock or other property due in respect of converted Debentures, in
accordance with this Indenture in relation to the conversion of Debentures pursuant to the terms
hereof.



     SECTION 8.03 Repayment to Company. The Trustee and the Paying Agent shall promptly turn
over to the Company upon written request any excess money or securities held by them at any time.



     Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon written request any money held by them for the payment of principal or interest
and any shares of Common Stock or other property due in respect of converted Debentures that
remains unclaimed for two years, and, thereafter, Debentureholders entitled to the money and/or
securities must look to the Company for payment as general creditors.



     SECTION 8.04 Reinstatement. If the Trustee or Paying Agent is unable to apply any money or
to deliver any shares of Common Stock or other property due in respect of converted Debentures in
accordance with this Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or



51









 







otherwise prohibiting such application, the Company’s obligations under this Indenture and the
Debentures shall be revived and reinstated as though no deposit had occurred pursuant to this
Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money and
any shares of Common Stock or other property due in respect of converted Debentures in accordance
with this Article 8; provided, however, that, if the Company has made any payment
of interest on or principal of any Debentures because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Debentureholders of such Debentures to receive
such payment from the money held by the Trustee or Paying Agent.



ARTICLE 9

AMENDMENTS




     SECTION 9.01 Without Consent of Debentureholders. The Company and the Trustee may amend
this Indenture, any Security Document or the Debentures without notice to or consent of any
Debentureholder:



     (a) to cure any ambiguity, omission, defect or inconsistency; provided that such
modification or amendment does not adversely affect the interests of the Holders of the Debentures
in any material respect;



     (b) to comply with Article 5;



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



     (d) to add guarantees with respect to the Debentures or to secure the Debentures;



     (e) to add to the covenants of the Company for the benefit of the Debentureholders or to
surrender any right or power herein conferred upon the Company;



     (f) to make any provision with respect to matters or questions arising under this Indenture
that the Company may deem necessary or desirable and that shall not be inconsistent with provisions
of this Indenture; provided that such change or modification does not, in the good faith
opinion of the Company’s Board of Directors, adversely affect the interests of the Holders of the
Debentures in any material respect;



     (g) to provide for a successor Trustee;



     (h) to make any increase in the Conversion Rate;



     (i) to comply with any requirements of the SEC in connection with qualifying, or maintaining
the qualification of, this Indenture under the TIA;



     (j) to provide for amendments to the conversion rights of Holders and the Company’s repurchase
obligations in connection with a Fundamental Change or in the event of any change or
reclassification of the Common Stock, merger or consolidation, or sale, lease, transfer,



52









 







conveyance or other disposition of all or substantially all of the Company’s assets and those
of its Subsidiaries taken as a whole, solely to the extent contemplated by Sections 10.06 or 10.13
and in accordance therewith; or



     (k) with respect to any Security Document, as provided therein.



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



     SECTION 9.02 With Consent of Debentureholders. The Company and the Trustee may amend this
Indenture, the Security Documents or the Debentures with the written consent of the Holders of at
least a majority in principal amount of the Debentures then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Debentures), without notice to
any other Debentureholder. However, without the consent of each Holder of an outstanding Debenture
affected, an amendment may not:



     (a) reduce the percentage of the Debentures required for consent to any modification of this
Indenture that requires the consent of each affected Holder;



     (b) reduce the rate of or extend the time for payment of interest (including Additional
Interest, if any) on any Debenture;



     (c) reduce the principal of or extend the Maturity Date (except in accordance with deferral
notices under Section 1(c) of the Debentures);



     (d) reduce the amount payable in relation to the repurchase or redemption of any Debentures;



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



     (f) change the redemption provisions in a manner adverse to the Holders;



     (g) change the Company’s obligation to repurchase any Debentures at the option of the Holder
in a manner adverse to the Holders;



     (h) change the Company’s obligation to repurchase any Debentures upon a Fundamental Change in
a manner adverse to the Holders;



     (i) impair the right of a Holder to institute suit for payment of any Debentures;



     (j) provide for amendments to the conversion rights of Holders of the Debentures and the
Company’s repurchase obligations in connection with a Fundamental Change or in the event of any
change or reclassification of the Common Stock, merger or consolidation, or sale, lease, transfer,
conveyance or other disposition of all or substantially all of the Company’s assets and those of
its Subsidiaries taken as a whole, other than any amendments covered by Section 9.01(j) hereto; or



53









 





     (k) except as otherwise permitted pursuant to this Indenture, adversely affect the right of a
Holder to convert any Debentures, or reduce the number of shares of Common Stock or any other
property receivable upon conversion pursuant to the terms of this Indenture.



     In addition, the Company and the Trustee may not amend Section 4.11 of this Indenture,
including, without limitation, any defined terms used therein, in any manner without the consent of
the Holders of at least two-thirds in principal amount of the Debentures then outstanding
(including consents obtained in connection with a tender offer or exchange offer for the
Debentures).



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



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



     SECTION 9.03 Compliance with Trust Indenture Act. Every amendment to this Indenture or the
Debentures shall comply with the TIA as then in effect.



     SECTION 9.04 Revocation and Effect of Consents and Waivers. A consent to an amendment or a
waiver by a Debentureholder of a Debenture shall bind the Debentureholder and every subsequent
Debentureholder of that Debenture or portion of the Debenture that evidences the same debt as the
consenting Debentureholder’s Debenture, even if notation of the consent or waiver is not made on
the Debenture. However, any such Debentureholder or subsequent Debentureholder may revoke the
consent or waiver as to such Debentureholder’s Debenture or portion of the Debenture if the Trustee
receives the notice of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Debentureholder. An amendment or
waiver becomes effective once both (i) the requisite number of consents have been received by the
Company or the Trustee and (ii) such amendment or waiver has been executed by the Company and the
Trustee.



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



     It is not necessary for the consent of the Holders of Debentures under this Indenture to
approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient
if such consent approves the substance thereof.



54









 





     For purposes of this Indenture, the consent of the Holder of a Global Debenture shall be
deemed to include any consent delivered by any member of, or participant in, any Depositary or DTC,
any nominees thereof and their respective successors and assigns, or such other depositary
institution hereinafter appointed by the Company (“Depositary Entity”) by electronic means in
accordance with the Automated Tender Offer Procedures system or other customary procedures of, and
pursuant to authorization by, such Depositary Entity.



     Without limiting the generality of this Section 9.04, unless otherwise provided in or pursuant
to this Indenture, a Holder, including a Depositary or its nominee that is a Holder of a Global
Debenture, may give, make or take, by an agent or agents duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action provided or permitted in
or pursuant to this Indenture to be given, made or taken by Holders, and a Depositary or its
nominee that is a Holder of a Global Debenture may duly appoint in writing as its agent or agents
members of, or participants in, such Depositary holding interests in such Global Debenture in the
records of such Depositary, with regard to all or any part of the principal amount of such
Debenture.



     Nothing in this paragraph shall be construed to prevent the Company or the Trustee from fixing
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 further action
by any Person be canceled and of no effect).



     SECTION 9.05 Notation on or Exchange of Debentures. If an amendment changes the terms of a
Debenture, the Trustee may require the Debentureholder of the Debenture to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Debenture regarding the changed
terms and return it to the Debentureholder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Debenture shall issue and the Trustee shall
authenticate a new Debenture that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Debenture shall not affect the validity of such amendment.



     SECTION 9.06 Trustee to Sign Amendments. The Trustee shall sign any amendment authorized
pursuant to this Article 9 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In
signing such amendment the Trustee shall be entitled to receive, and (subject to Section 7.01)
shall be fully protected in relying upon, in addition to the documents required by Section 11.04,
an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized or
permitted by this Indenture and that such amendment is the legal, valid and binding obligation of
the Company enforceable against it in accordance with its terms, subject to customary exceptions,
and complies with the provisions hereof (including Section 9.03).



ARTICLE 10

CONVERSION OF DEBENTURES




     SECTION 10.01 Right to Convert. (a) Subject to and upon compliance with the provisions of
this Indenture, at any time following the Issue Date and ending on 5:00 p.m. New York City time, on
the Business Day immediately preceding February 1, 2013, the Holder of any Debentures not
previously redeemed or repurchased shall have the right, at such Holder’s option,



55









 







to convert the principal amount then outstanding of the Debentures held by such Holder, or any
portion of such principal amount which is an integral multiple of $1, into fully paid and
non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion
Rate in effect at such time plus, if such conversion occurs after May 1, 2011 only, an amount in
cash equal to the Interest Make-Whole, by surrender of the Debentures so to be converted in whole
or in part, together with any required funds, under the circumstances described in this Section
10.01 and in the manner provided in Section 10.02. Notwithstanding anything in this Indenture to
the contrary, any Interest Make-Whole may be paid in shares of Common Stock in lieu of cash if the
Company and the relevant Holder so agree.



     (b) Debentures in respect of which a Holder has delivered a Repurchase Notice exercising such
Holder’s right to require the Company to repurchase such Debentures pursuant to Section 3.04 may be
converted only if such Repurchase Notice is withdrawn in accordance with Section 3.06 prior to 5:00
p.m., New York City time, on the Business Day immediately preceding the Fundamental Change
Repurchase Date.



     (c) A Holder of Debentures is not entitled to any rights of a holder of Common Stock until
such Holder has converted his Debentures to Common Stock, and only to the extent such Debentures
are deemed to have been converted to Common Stock under this Article 10.



     SECTION 10.02 Exercise of Conversion Right; Issuance of Common Stock on Conversion; No
Adjustment for Interest or Dividends. In order to exercise the conversion right with respect to
any Debentures in certificated form, the Company must receive at the office or agency of the
Company maintained for that purpose or, at the option of such Holder, the Corporate Trust Office,
such Debentures with the original or facsimile of the form entitled “Conversion Notice” on the
reverse thereof, duly completed and manually signed, together with such Debentures duly endorsed
for transfer, together with any other required transfer documents, accompanied by the funds, if
any, required by this Section 10.02. Such notice shall also state the name or names (with address
or addresses) in which the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued, and shall be accompanied by transfer or similar taxes
or duties, if required pursuant to Section 10.07.



     In order to exercise the conversion right with respect to any interest in a Global Debenture,
the Holder must complete, or cause to be completed, the appropriate instruction form for conversion
pursuant to the Depositary’s book-entry conversion procedures; deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Debenture; furnish appropriate endorsements and
transfer documents if required by the Company or the Trustee or conversion agent; and pay the
funds, if any, required by this Section 10.02 and any transfer or similar taxes or duties if
required pursuant to Section 10.07.



     The cash, if applicable, and a certificate or certificates for the number of full shares of
Common Stock into which the Debentures are converted (and cash in lieu of fractional shares) will
be delivered to such Holder after satisfaction of the requirements for conversion set forth above,
in accordance with Section 10.12. In case any Debentures of a denomination greater than $1,000
shall be surrendered for partial conversion, and subject to Section 2.03, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of the Debentures so surrendered,
without charge to the Holder, a new Debenture or Debentures in authorized



56









 







denominations in an aggregate principal amount equal to the unconverted portion of the
surrendered Debentures.



     Each conversion shall be deemed to have been effected as to any such Debentures (or portion
thereof) on the date on which the requirements set forth above in this Section 10.02 have been
satisfied as to such Debentures (or portion thereof) (the “Conversion Date”) and such Debentures
will be deemed to have been converted immediately prior to 5:00 p.m., New York City time, on the
Conversion Date. The Person in whose name any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become, on said date, the
holder of record of the shares represented thereby; provided that any such surrender on any
date when the stock transfer books of the Company shall be closed shall constitute the Person in
whose name the certificates are to be issued as the record holder thereof for all purposes on the
next succeeding day on which such stock transfer books are open.



     Any Debentures or portion thereof surrendered for conversion during the period from 5:00 p.m.,
New York City time, on the Record Date for any interest payment date to 5:00 p.m., New York City
time, on the Business Day preceding the applicable interest payment date shall be accompanied by
payment, in immediately available funds or other funds acceptable to the Company, of an amount
equal to the interest (excluding any Additional Interest) otherwise payable on such interest
payment date on the principal amount being converted; provided that no such payment need be
made (1) if a Holder converts its Debentures in connection with a redemption and the Company has
specified a redemption date that is after a Record Date and on or prior to the corresponding
interest payment date, (2) if a Holder converts its Debentures in connection with a Fundamental
Change and the Company has specified a Fundamental Change Repurchase Date that is after a Record
Date and on or prior to the corresponding interest payment date or (3) to the extent of any overdue
interest, if any overdue interest exists at the time of conversion with respect to such Debentures.
Except as provided above in this Section 10.02 and Section 10.05, no payment or other adjustment
shall be made for interest accrued on any Debentures converted or for dividends on any shares
issued upon the conversion of such Debentures as provided in this Article 10.



     Furthermore, any Debentures or portion thereof surrendered for conversion during the period
from 5:00 p.m., New York City time, on the Record Date for any Principal Payment Date to 5:00 p.m.,
New York City time, on the Business Day preceding the applicable Principal Payment Date shall be
accompanied by payment, in immediately available funds or other funds acceptable to the Company, of
an amount equal to the principal that is otherwise payable on such Principal Payment Date in
respect of such Debentures surrendered for conversion; provided that if the Trustee has
notified the Holders of a Deferral (as defined in the Debenture) relating to such Principal Payment
Date pursuant to Section 1(c) of the Debentures, the payment due by the Holder will be reduced by
the portion of the principal otherwise payable on such date that is being deferred.



     Upon the conversion of an interest in a Global Debenture, the Trustee (or other conversion
agent appointed by the Company), or the custodian for the Global Debenture at the direction of the
Trustee (or other conversion agent appointed by the Company), shall make a notation on such Global
Debenture as to the reduction in the principal amount represented



57









 







thereby. The Company shall notify the Trustee in writing of any conversions of Debentures
effected through any conversion agent other than the Trustee.



     Upon the conversion of any Debentures, the accrued but unpaid interest attributable to the
period from the issue date of the Debentures to the Conversion Date, with respect to the converted
Debentures, shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through delivery of the shares of Common Stock and cash
(including a cash payment in lieu of fractional shares), if any, in exchange for the Debentures
being converted pursuant to the provisions hereof.



     SECTION 10.03 Cash Payments in Lieu of Fractional Shares. No fractional shares of Common
Stock or scrip certificates representing fractional shares shall be issued upon conversion of
Debentures. If more than one Debenture shall be surrendered for conversion at one time by the same
Holder, the number of full shares that shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Debentures (or specified portions thereof to the
extent permitted hereby) so surrendered. If any fractional share of stock would be issuable upon
the conversion of any Debenture or Debentures, the Company shall make an adjustment and payment
therefor in cash to the Holder of Debentures at a price equal to the Volume Weighted Average Price
on the Conversion Date.



     SECTION 10.04 Conversion Rate.



     (a) Each $1,000 principal amount of the Debentures shall be convertible into the number of
shares of Common Stock equal to the Conversion Rate, which is subject to adjustment as provided in
this Section 10.04 and Section 10.05.



     (b) Subject to Section 10.13, if and only to the extent a Holder elects to convert Debentures
at any time following the earlier of (i) the Effective Date of the applicable Non-Stock Change of
Control and (ii) receipt of the applicable Company Repurchase Notice but before 5:00 p.m., New York
City time, on the Business Day immediately preceding the related Fundamental Change Repurchase Date
(a “Non-Stock Change of Control Conversion”), a Holder may elect in its Conversion Notice either
(x) with respect to a conversion after May 1, 2011 only, to receive the Interest Make-Whole upon
such conversion of Debentures pursuant to the terms of this Indenture or (y) to cause the Company
to increase the Conversion Rate applicable to such converted Debentures by a number of additional
shares of Common Stock (the “Additional Shares”) as set forth below.



     (c) If a Holder has elected to receive Make-Whole Consideration, the number of Additional
Shares shall be determined by reference to the table below, based on the Effective Date and the
price (the “Stock Price”) paid per share for the Common Stock in the Non-Stock Change of Control.
If holders of Common Stock receive only cash in the Non-Stock Change of Control, the Stock Price
shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the
Closing Sale Prices of the Common Stock on the five Trading Days prior to but not including the
Effective Date of such Non-Stock Change of Control.



     The numbers of Additional Shares set forth in the table below shall be adjusted as of any date
on which the Conversion Rate is adjusted in the same manner in which the Conversion Rate



58









 







is adjusted. The Stock Prices set forth in the table below shall be adjusted, as of any date
on which the Conversion Rate is adjusted, to equal the Stock Price applicable immediately prior to
such adjustment multiplied by a fraction, of which




     (1) the numerator shall be the Conversion Rate immediately prior to the adjustment and




     (2) the denominator shall be the Conversion Rate as so adjusted.



     The additional consideration payable hereunder on account of any Make-Whole Applicable
Increase (as defined below) with respect to a Debenture surrendered for conversion is herein
referred to as the “Make-Whole Consideration.”



     The Make-Whole Consideration will be in addition to, and not in substitution for, any cash,
securities or other assets otherwise due to Holders of Debentures upon conversion (other than the
Interest Make-Whole) as described in this Indenture.



     The following table sets forth the Stock Price and number of Additional Shares by which the
Conversion Rate shall be increased (the “Make-Whole Applicable Increase”):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STOCK PRICE
	Effective Date	 	$12.00	 	$13.00	 	$14.00	 	$15.00	 	$16.00	 	$17.00	 	$18.00	 	$19.00	 	$20.00	 	$22.50	 	$25.00	 	$30.00
	May  , 2009
	 	 	14.5381	 	 	 	12.4376	 	 	 	10.7293	 	 	 	9.3237	 	 	 	8.1528	 	 	 	7.1682	 	 	 	6.3333	 	 	 	5.6200	 	 	 	5.0060	 	 	 	3.8013	 	 	 	2.9264	 	 	 	1.7773	 
	May  , 2010
	 	 	13.7123	 	 	 	11.3276	 	 	 	9.4286	 	 	 	7.9047	 	 	 	6.6694	 	 	 	5.6618	 	 	 	4.8339	 	 	 	4.1489	 	 	 	3.5795	 	 	 	2.5262	 	 	 	1.8244	 	 	 	1.0020	 
	May  , 2011
	 	 	13.2764	 	 	 	10.2145	 	 	 	7.7036	 	 	 	5.6220	 	 	 	3.8906	 	 	 	2.4571	 	 	 	1.2894	 	 	 	0.3468	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 
	May  , 2012
	 	 	12.9714	 	 	 	9.5314	 	 	 	6.8264	 	 	 	4.6767	 	 	 	2.9600	 	 	 	1.5976	 	 	 	0.5422	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 
	January 20, 2013
	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 






     If the Stock Price and Effective Date are not set forth on the table above and the Stock Price
is:




     (i) between two Stock Prices on the table or the Effective Date is between two days on
the table, the number of Additional Shares shall be determined by straight-line
interpolation between the number of Additional Shares of Common Stock set forth for the
higher and lower Stock Price and the two Effective Dates, as applicable, based on a 360-day
year;




     (ii) in excess of $30.00 per share (subject to adjustment in the same manner as and as
of any date on which the Stock Prices are adjusted in the table above), no Additional Shares
of Common Stock shall be issued upon conversion; or




     (iii) less than $12.00 per share (subject to adjustment in the same manner as and as of
any date on which the Stock Prices are adjusted in the table above), no Additional Shares
shall be issued upon conversion.



     Notwithstanding the foregoing, in no event will the Conversion Rate as adjusted pursuant to
this Section 10.04 exceed 85.9667 per $1,000 principal amount of the Debentures, subject to



59









 







adjustments in the same manner as and as of any date on which the numbers of Additional Shares
set forth in the above table are adjusted as set forth in the second paragraph of this Section
10.04(c).



     SECTION 10.05 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company as follows:



     (a) In case the Company shall, at any time or from time to time while any of the Debentures
are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock to all or substantially all Holders of its outstanding shares of Common Stock (other
than a dividend or distribution upon a transaction to which Section 10.06 applies), then the
Conversion Rate in effect at the opening of business on the date following the Record Date fixed
for the determination of stockholders entitled to receive such dividend or other distribution shall
be increased by multiplying such Conversion Rate by a fraction:




     (1) the numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the Record Date fixed for the determination of
stockholders entitled to receive such dividend or other distribution plus the total number
of shares of Common Stock constituting such dividend or other distribution; and




     (2) the denominator of which shall be the number of shares of Common Stock outstanding
at the close of business on the Record Date fixed for such determination, such increase to
become effective immediately after the opening of business on the day following the Record
Date fixed for such determination. If any dividend or distribution of the type described in
this Section 10.05(a) is declared but not so paid or made, the Conversion Rate shall again
be adjusted to the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.



     (b) In case outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock (other than upon a transaction to which Section 10.06 applies), the
Conversion Rate in effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of shares of Common
Stock (other than upon a transaction to which Section 10.06 applies), the Conversion Rate in effect
at the opening of business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following the day upon which
such subdivision or combination becomes effective.



     (c) In case the Company shall issue rights or warrants to all or substantially all holders of
its outstanding shares of Common Stock (other than upon a transaction to which Section 10.06
applies) entitling them to purchase, for a period of up to 45 calendar days, shares of Common Stock
at a price per share less than the then Current Market Price, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the Record Date fixed for determination of stockholders entitled to
receive such rights or warrants by a fraction,



60









 






     (1) the numerator of which shall be the number of shares of Common Stock outstanding at
the close of business on the Record Date fixed for determination of stockholders entitled to
receive such rights or warrants plus the total number of additional shares of Common Stock
offered for subscription or purchase, and




     (2) the denominator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the Record Date fixed for determination of
stockholders entitled to receive such rights or warrants plus the number of shares that the
aggregate offering price of the total number of shares so offered would purchase at the
Current Market Price.



     Such adjustment shall be successively made whenever any such rights or warrants are issued,
and shall become effective immediately after the opening of business on the day following the date
fixed for determination of stockholders entitled to receive such rights or warrants;
provided, that no adjustment to the Conversion Rate shall be made if the Holder will
otherwise participate in such distribution without conversion as a result of holding the
Debentures. To the extent that shares of Common Stock are not delivered after the expiration of
such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would
then be in effect had the adjustments made upon the issuance of such rights or warrants been made
on the basis of delivery of only the number of shares of Common Stock actually delivered. If such
rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed. In determining whether
any rights or warrants entitle the Holders to purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such shares of Common
Stock, there shall be taken into account any consideration received by the Company for such rights
or warrants and any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.



     (d) In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its outstanding shares of Common Stock shares of any class of capital stock of the
Company or evidences of its indebtedness or assets (including securities, but excluding (i) any
rights or warrants referred to in Section 10.05(c), (ii) any dividends or distributions in
connection with a transaction to which Section 10.06 applies, (iii) any dividends or distributions
paid exclusively in cash or (iv) any dividends or distributions referred to in Section 10.05(a))
(any of the foregoing hereinafter in this Section 10.05(d) called the “Distributed Assets”), then,
in each such case, the Conversion Rate shall be increased so that the same shall be equal to the
rate determined by multiplying the Conversion Rate in effect on the Record Date with respect to
such distribution by a fraction,




     (1) the numerator of which shall be the Current Market Price; and




     (2) the denominator of which shall be the Current Market Price less the Fair Market
Value (as determined by the Board of Directors, whose determination shall be conclusive, and
described in a resolution of the Board of Directors) on the Record Date of the portion of
the Distributed Assets so distributed applicable to one share of Common



61









 






Stock, such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that if the then Fair Market Value
(as so determined) of the portion of the Distributed Assets so distributed applicable to one
share of Common Stock is equal to or greater than the Current Market Price or such Current
Market Price exceeds such Fair Market Value by less than $1.00, in lieu of the foregoing
adjustment, adequate provision shall be made so that the Holder of each Debenture shall have
the right to receive upon conversion the amount of Distributed Assets such Holder would have
received had such Holder converted such Debenture immediately prior to the Record Date; and
provided, further, that no adjustment to the Conversion Rate shall be made
if the Holder will otherwise participate in such distribution without conversion as a result
of holding the Debentures. If such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared.


Notwithstanding the foregoing, in the event any such distribution consists of shares of Capital
Stock of one or more of the Company’s Subsidiaries to be traded in a securities market (a
“Spin-Off”), the Conversion Rate shall be increased so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect immediately prior to the close of business
on the Record Date with respect to such distribution by a fraction:





     (1) the numerator of which shall be the Current Market Price of the Common Stock
determined for the period specified below, plus the Fair Market Value of the portion of the
Distributed Assets so distributed applicable to one share of Common Stock, determined as set
forth above, and




     (2) the denominator of which shall be the Current Market Price determined for the
period specified below;


and such increase shall become effective immediately prior to the opening of business on the day
following the last Trading Day of the Spin-Off Valuation Period (as defined below). For purposes of
this paragraph, the Fair Market Value of the securities to be distributed shall equal the average
of the Closing Sale Prices of such securities on the principal securities market on which such
securities are traded for the five consecutive Trading Days commencing on and including the sixth
day of trading of those securities after the effectiveness of the Spin-Off (the “Spin-Off Valuation
Period”), and the Current Market Price of the Common Stock shall be measured for the same period.
In the event, however, that an underwritten initial public offering of the securities in the
Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities distributed
in the Spin-Off shall mean the initial public offering price of such securities and the Current
Market Price of the Common Stock shall mean the Closing Sale Price for the Common Stock on the same
Trading Day.




     Rights or warrants distributed by the Company to all holders of Common Stock entitling the
Holders thereof to subscribe for or purchase shares of the Company’s capital stock (either
initially or under certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of
Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for purposes of this Section 10.05



62









 




(and no adjustment to the Conversion Rate under this Section 10.05 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate
shall be made under this Section 10.05(d). If any such right or warrant, including any such
existing rights or warrants distributed prior to the date of this Indenture, are subject to events,
upon the occurrence of which such rights or warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the date of the occurrence of any and
each such event shall be deemed to be the date of distribution and record date with respect to new
rights or warrants with such rights (and a termination or expiration of the existing rights or
warrants without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under
this Section 10.05 was made, (1) in the case of any such rights or warrants that shall all have
been redeemed or repurchased without exercise by any Holders thereof, the Conversion Rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been issued.




     No adjustment of the Conversion Rate shall be made pursuant to this Section 10.05(d) in
respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent
that such rights or warrants are actually distributed or reserved by the Company for distribution
to Holders of Debentures upon conversion by such Holders of Debentures to Common Stock.



     (e) In case the Company shall pay a dividend or otherwise distribute to all holders of its
Common Stock a dividend or other distribution of exclusively cash (excluding (x) any dividend or
distribution in connection with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary and (y) any dividend or distribution in connection with a transaction to
which Section 10.06 applies), then the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect on the applicable Record
Date by a fraction,




     (1) the numerator of which shall be the Current Market Price; and




     (2) the denominator of which shall be the Current Market Price less the amount of the
cash distribution applicable to one share of Common Stock, such adjustment to be effective
immediately prior to the opening of business on the day following such Record Date;
provided that if the portion of the cash so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of Debentures shall have
the right to receive upon conversion the amount of cash such Holder would have received had
such Holder converted such Debenture



63









 






immediately prior to the Record Date. If such dividend or distribution is not so paid
or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.



     (f) In case a tender or exchange offer made by the Company or any Subsidiary thereof for all
or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon
the expiration thereof) shall require the payment to stockholders of consideration per share of
Common Stock having a Fair Market Value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board of Directors) that as
of the last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender
or exchange offer (as it may be amended) exceeds the Closing Sale Price of a share of Common Stock
on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be increased so
that the same shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the Expiration Time by a fraction,




     (1) the numerator of which shall be the sum of (x) the Fair Market Value (determined as
aforesaid) of the aggregate consideration payable to stockholders whose shares are validly
tendered or exchanged and not withdrawn as of the Expiration Time and accepted for purchase
(the shares so accepted being referred to as the “Purchased Shares”) and (y) the product of
the number of shares of Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Closing Sale Price of a share of Common Stock on the Trading Day
next succeeding the Expiration Time, and




     (2) the denominator of which shall be the number of shares of Common Stock outstanding
(including any Purchased Shares) at the Expiration Time multiplied by the Closing Sale Price
of a share of Common Stock on the Trading Day next succeeding the Expiration Time,


such adjustment to become effective immediately prior to the opening of business on the Business
Day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any
such tender or exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer
had not been made.




     (g) For purposes of this Section 10.05, the following terms shall have the meaning indicated:




     (i) “Current Market Price,” with respect to any issuance or distribution, means, except
as otherwise provided in Section 10.05(d), the average of the daily Closing Sale Prices per
share of Common Stock for the ten consecutive Trading Days immediately prior to the “ex”
date for such issuance or distribution requiring such computation; provided that if
the “ex” date (as hereinafter defined) for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the Conversion Rate
pursuant to Section 10.05(a), (b), (c), (d), (e) or (f) occurs during such ten consecutive
Trading Days, the Closing Sale Price for each Trading Day prior to the “ex” date for such
other event shall be adjusted by dividing such Closing Sale Price



64









 






by the same fraction by which the Conversion Rate is so required to be multiplied as a
result of such other event.




Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are
called for pursuant to this Section 10.05, such adjustments shall be made to the Current
Market Price as may be necessary or appropriate to effectuate the intent of this Section
10.05 and to avoid unjust or inequitable results as determined in good faith by the Board of
Directors.




     (ii) “‘ex’ date”:




     (1) when used in this Article 10 with respect to any issuance or distribution, means
the first date on which the shares of Common Stock trade regular way on the relevant
exchange or in the relevant market from which the Closing Sale Price was obtained without
the right to receive such issuance or distribution;




     (2) when used in the proviso to Section 10.05(g)(i) with respect to any subdivision or
combination of shares of Common Stock, means the first date on which the shares of Common
Stock trade regular way on such exchange or in such market after the time at which such
subdivision or combination becomes effective; and




     (3) when used in the proviso to Section 10.05(g)(i) with respect to any tender or
exchange offer, means the first date on which the shares of Common Stock trade regular way
on such exchange or in such market after the Expiration Time of such offer.




     (iii) “Fair Market Value” shall mean the amount which a willing buyer would pay a
willing seller in an arm’s-length transaction.




     (iv) “Record Date” shall mean, with respect to any dividend, distribution or other
transaction or event in which the holders of Common Stock have the right to receive any
cash, securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).




     (v) “Trading Day” means any day that is scheduled to be a trading day on the primary
United States national securities exchange or market on which the Common Stock is listed,
admitted to trading or quoted on which (i) there is no Market Disruption Event and (ii) The
Nasdaq Global Select Market (or, if the Common Stock is not quoted on The Nasdaq Global
Select Market, the principal U.S. national or regional securities exchange on which the
Common Stock is listed or admitted to trading), is open for trading or, if the Common Stock
is not so listed, admitted for trading or quoted, any Business Day. A Trading Day includes
only those scheduled trading days that have a scheduled closing time of 4:00 p.m., New York
City time, or the then standard closing time for regular trading on the relevant exchange or
market.



65









 





     (h) The Company may make such increases in the Conversion Rate, in addition to those required
by Section 10.05(a)-(f), as the Board of Directors considers to be advisable to avoid or diminish
any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any event treated as such
for income tax purposes.



     In addition to the foregoing, to the extent permitted by applicable law, the Company from time
to time may increase the Conversion Rate by any amount for any period of time if the period is at
least 20 Business Days, the increase is irrevocable during the period and the Board of Directors
shall have made a determination that such increase would be in the best interests of the Company,
which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to Holders of record of the Debentures a notice of the
increase, which notice will be given at least 15 days prior to the effectiveness of any such
increase, and such notice shall state the increased Conversion Rate and the period during which it
will be in effect.



     (i) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in such rate; provided that
any adjustments that by reason of this Section 10.05(i) are not required to be made shall be
carried forward and the Company shall make such carry forward adjustments, regardless of whether
the aggregate adjustment is less than 1%, (x) annually on the anniversary of the Closing Date and
otherwise (y)(1) five Business Days prior to the final maturity of the Debentures (whether at
stated maturity or otherwise) or (2) prior to the redemption date or Fundamental Change Repurchase
Date, unless such adjustment has already been made. All calculations under this Article 10 shall be
made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. No adjustment need be made for rights to purchase
Common Stock pursuant to a Company plan for reinvestment of dividends or interest or for any
issuance of Common Stock or convertible or exchangeable securities or rights to purchase Common
Stock or convertible or exchangeable securities. Interest will not accrue on any cash into which
the Debentures are convertible.



     (j) Whenever the Conversion Rate is adjusted as herein provided, the Company will issue a
press release containing the relevant information and make this information available on the
Company’s website or through another public medium as the Company may use at that time. In
addition, the Company shall promptly file with the Trustee and any conversion agent other than the
Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Unless and until a
responsible officer of the Trustee shall have received such Officers’ Certificate, the Trustee
shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that
the last Conversion Rate of which it has actual knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment
becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the
Holder of each Debentures at his last address appearing on the Register, within 20 calendar days
after execution thereof. Failure to deliver such notice shall not affect the legality or validity
of any such adjustment.



66









 





     (k) In any case in which this Section 10.05 provides that an adjustment shall become effective
immediately after (1) a record date for an event, (2) the date fixed for the determination of
stockholders entitled to receive a dividend or distribution pursuant to Section 10.05(a), (3) a
date fixed for the determination of stockholders entitled to receive rights or warrants pursuant to
Section 10.05(c), or (4) the Expiration Time for any tender or exchange offer pursuant to Section
10.05(f) (each, a “Determination Date”), the Company may elect to defer until the occurrence of the
applicable Adjustment Event (as hereinafter defined) (x) issuing to the Holder of any Debentures
converted after such Determination Date and before the occurrence of such Adjustment Event, the
additional shares of Common Stock, if any, or other securities issuable upon such conversion by
reason of the adjustment required by such Adjustment Event over and above the Common Stock, if any,
issuable upon such conversion before giving effect to such adjustment and (y) paying to such Holder
any amount in cash in lieu of any fractional share pursuant to Section 10.03. For purposes of this
Section 10.05(k), the term “Adjustment Event” shall mean:




     (i) in any case referred to in clause (1) hereof, the occurrence of such event,




     (ii) in any case referred to in clause (2) hereof, the date any such dividend or
distribution is paid or made,




     (iii) in any case referred to in clause (3) hereof, the date of expiration of such
rights or warrants, and




     (iv) in any case referred to in clause (4) hereof, the date a sale or exchange of
Common Stock pursuant to such tender or exchange offer is consummated and becomes
irrevocable.



     (l) For purposes of this Section 10.05, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company will not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.



     (m) No adjustment to the Conversion Rate shall be made pursuant to this Section 10.05 if the
Holders of the Debentures may participate in the transaction that would otherwise give rise to
adjustment pursuant to this Section 10.05.



     SECTION 10.06 Effect of Reclassification, Consolidation, Merger or Sale. If any of the
following events occur, namely:



     (a) any reclassification or change of the outstanding Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value, or as a result of a
subdivision or combination),



     (b) any consolidation, merger or binding share exchange of the Company with or into another
Person, or



67









 





     (c) any sale, lease, transfer, conveyance or other disposition of all or substantially all of
the Company’s assets and those of its Subsidiaries taken as a whole to any other Person or Persons,


as a result of which holders of Common Stock shall be entitled to receive stock, other securities
or other property or assets (including cash or any combination thereof) with respect to or in
exchange for such Common Stock, in each case, the Company or the successor or purchasing
corporation, as the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental
indenture, if such supplemental indenture is then required to so comply) providing that each such
Debenture shall, without the consent of any Holders of Debentures, become convertible into a
Conversion Settlement Amount based on only the kind and amount of shares of stock and other
securities or property or assets (including cash or any combination thereof) (the “Applicable
Consideration”), as provided further below, that holders of shares of Common Stock
received in such reclassification, change, consolidation, merger, binding share exchange, sale,
lease, transfer, conveyance or other disposition, except that the conditions relating to conversion
of Debentures specified herein (including in Sections 10.01, 10.02 and 10.12) (modified as
appropriate in the good faith judgment of the Board of Directors to apply properly to the
Applicable Consideration in lieu of Common Stock) and the provisions of Section 10.12 relating to
the settlement of the conversion obligation upon conversion of Debentures shall continue to apply
following such transaction. In the event holders of Common Stock have the opportunity to elect the
form of consideration to be received in such transaction, the Applicable Consideration shall
consist of the consideration that a majority of the holders of Common Stock who made such an
election received in such transaction. The Company may not become a party to any such transaction
unless its terms are consistent with the foregoing. Such supplemental indenture shall provide for
adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 10, as determined in good faith by the Company or successor or purchasing
corporation. If, in the case of any such reclassification, change, consolidation, merger, binding
share exchange, sale, lease, transfer, conveyance or other disposition, the stock or other
securities and assets receivable thereupon by a holder of Common Stock includes shares of stock or
other securities and assets of a corporation other than the successor or purchasing corporation, as
the case may be, in such reclassification, change, consolidation, merger, binding share exchange,
sale, lease, transfer, conveyance or other disposition, then such supplemental indenture shall also
be executed by such other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Debentures as the Board of Directors shall reasonably consider
necessary by reason of the foregoing, including to the extent practicable the provisions providing
for the conversion rights set forth in this Article 10. Upon the effectiveness of such
transaction, a Holder of Debentures shall thereafter have the right to convert such Debentures, at
the Conversion Rate in effect immediately prior to the effectiveness of such transaction (subject
to adjustment as provided in Section 10.04 and Section 10.05), only into cash and units of
Applicable Consideration (a “unit of Applicable Consideration” being, for purposes of this
Indenture, the kind and amount of Applicable Consideration which the holder of one share of Common
Stock would have received in such transaction, determined as set forth above), as provided for in
accordance with Section 10.12.




68









 








     The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Holder, at the address of such Holder as it appears on the register of the Debentures
maintained by the Registrar, within 20 days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.



     The above provisions of this Section 10.06 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, binding share exchanges, sales, leases,
transfers, conveyances or other dispositions.



     If this Section 10.06 applies to any event or occurrence, Section 10.05 shall not apply.
Notwithstanding this Section 10.06, if a Public Acquirer Change of Control occurs and the Company
elects to adjust its conversion obligation and the Conversion Rate pursuant to Section 10.13, the
provisions of Section 10.13 instead of this Section 10.06 shall apply to the transaction.



     SECTION 10.07 Taxes on Shares Issued. The issue of stock certificates on conversions of
Debentures shall be made without charge to the converting Holder of Debentures for any documentary,
stamp or similar issue or transfer tax in respect of the issue thereof. The Company shall not,
however, be required to pay any such tax which may be payable in respect of any transfer involved
in the issue and delivery of stock in any name other than that of the Holder of any Debentures
converted, and the Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the Company that such tax
has been paid.



     SECTION 10.08 Reservation of Shares, Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock. The Company shall provide, free from preemptive rights,
out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common
Stock to provide for the conversion of the Debentures from time to time as such Debentures are
presented for conversion.



     Before taking any action which would cause an adjustment increasing the Conversion Rate to an
amount that would cause the Conversion Price to be reduced below the then par value, if any, of the
shares of Common Stock issuable upon conversion of the Debentures, the Company will take all
corporate action which may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate.



     The Company covenants that all shares of Common Stock which may be issued upon conversion of
Debentures will upon issue be fully paid and non-assessable by the Company and free from all taxes,
liens and charges with respect to the issue thereof.



     The Company covenants that, if any shares of Common Stock to be provided for the purpose of
conversion of Debentures hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company will in good faith and as expeditiously as possible, to the extent then permitted by
the rules and interpretations of the Commission (or any successor thereto), endeavor to secure such
registration or approval, as the case may be.



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     The Company further covenants that, if at any time the Common Stock shall be listed on any
national securities exchange or automated quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so long as the Common
Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable
upon conversion of the Debentures; provided that if the rules of such exchange or automated
quotation system permit the Company to defer the listing of such Common Stock until the first
conversion of the Debentures into Common Stock in accordance with the provisions of this Indenture,
the Company covenants to list such Common Stock issuable upon conversion of the Debentures in
accordance with the requirements of such exchange or automated quotation system at such time.



     SECTION 10.09 Responsibility of Trustee. The Trustee and any other conversion agent shall
not at any time be under any duty or responsibility to any Holder of Debentures to determine the
Conversion Rate or whether any facts exist which may require any adjustment of the Conversion Rate,
or with respect to the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture provided to be employed,
in making the same. The Trustee and any other conversion agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any
capital stock, other securities or other assets or property, which may at any time be issued or
delivered upon the conversion of any Debentures; and the Trustee and any other conversion agent
make no representations with respect thereto. Neither the Trustee nor any conversion agent shall
be responsible for any failure of the Company to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property or cash upon the surrender of any
Debentures for the purpose of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 10. Without limiting the generality of the
foregoing, neither the Trustee nor any conversion agent shall be under any responsibility to
determine the correctness of any provisions contained in any supplemental indenture entered into
pursuant to Section 10.06 relating either to the kind or amount of shares of capital stock or other
securities or other assets or property (including cash) receivable by Holders of Debentures upon
the conversion of their Debentures after any event referred to in such Section 10.06 or to any
adjustment to be made with respect thereto, but, subject to the provisions of Section 9.01, may
accept as conclusive evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers’ Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect thereto.



     SECTION 10.10 Notice to Holders Prior to Certain Actions. In case:



     (a) the Company shall declare a dividend (or any other distribution) on its Common Stock that
would require an adjustment in the Conversion Rate pursuant to Section 10.05; or



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



     (c) of any reclassification or change of the Common Stock of the Company (other than a
subdivision or combination of its outstanding Common Stock, or a change in par value, or



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from par value to no par value, or from no par value to par value), or of any consolidation or
merger or binding share exchange to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the sale, lease, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company and those of its Subsidiaries
taken as a whole; or



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


and, in the case of the events specified in clauses (a), (b) or (c), the Company shall cause to be
filed with the Trustee and to be mailed to each Holder of Debentures at his address appearing on
the Register provided for in Section 2.05 of this Indenture, as promptly as possible but in any
event at least ten calendar days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, change, consolidation, merger, binding
share exchange, sale, transfer, conveyance or other disposition, dissolution, liquidation or
winding up is expected to become effective or occur, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, change, consolidation, merger, binding
share exchange, sale, lease, transfer, conveyance or other disposition, dissolution, liquidation or
winding up. Failure to give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, change, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.




     SECTION 10.11 Stockholder Rights Plans. If the rights provided for in any future rights
plan adopted by the Company have separated from the shares of Common Stock in accordance with the
provisions of the applicable stockholder rights agreement so that the Holders of the Debentures
would not be entitled to receive any rights in respect of Common Stock issuable upon conversion of
the Debentures, the Conversion Rate will be adjusted (and, if applicable readjusted) as provided in
Section 10.05(d). If such rights have not separated, any shares of Common Stock delivered upon the
conversion of Debentures shall be accompanied by such rights.



     SECTION 10.12 Settlement Upon Conversion.



     (a) Upon any conversion of Debentures, the Company will deliver to converting Holders in
respect of each $1,000 principal amount of Debentures being converted a “Conversion Settlement
Amount” consisting of (i) a number of shares of Common Stock equal to the Conversion Rate (the
“Settlement Shares”) and (ii) if the applicable Conversion Date is after May 1, 2011, except in the
case of a conversion in which the Make-Whole Applicable Increase pursuant to Section 10.04 of the
Indenture shall apply, an amount in cash equal to the applicable Interest Make Whole.



     (b) On the third Trading Day following the applicable Conversion Date, the Company shall
deliver to the applicable Holder (i) an amount in cash equal to the applicable Interest Make-



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Whole if the Conversion Date is after May 1, 2011 (except in the case of a conversion in which
the Make-Whole Applicable Increase pursuant to Section 10.04 of the Indenture shall apply) and (ii)
the Settlement Shares, in accordance with Section 10.02 of the Indenture.



     SECTION 10.13 Conversion After a Public Acquirer Change of Control.



     (a) In the event of a Public Acquirer Change of Control, the Company may, in lieu of adjusting
the Conversion Rate pursuant to Section 10.04(b) or 10.06, elect to adjust its conversion
obligation and the Conversion Rate such that from and after the Effective Date of such Public
Acquirer Change of Control, Holders of the Debentures shall be entitled, subject to the conditions
relating to conversion of Debentures specified herein (including Sections 10.01, 10.02 and 10.12)
to receive a Conversion Settlement Amount upon conversion of Debentures based on shares of Public
Acquirer Common Stock; and the Conversion Rate in effect immediately before the Public Acquirer
Change of Control shall be adjusted by multiplying it by a fraction:




     (1) the numerator of which shall be (A) in the case of a consolidation, merger or
binding share exchange, pursuant to which the Common Stock is converted solely into cash,
the value of such cash paid or payable per share of Common Stock or (B) in the case of any
other Public Acquirer Change of Control, the average of the Closing Sale Prices of the
Common Stock for the five consecutive Trading Days prior to but excluding the Effective Date
of such Public Acquirer Change of Control; and




     (2) the denominator of which shall be the average of the Closing Sale Prices of the
Public Acquirer Common Stock for the five consecutive Trading Days commencing on the Trading
Day next succeeding the Effective Date of such Public Acquirer Change of Control.



     (b) The Company shall notify Holders of its election by providing notice as set forth in
Section 3.04(b).



     (c) If the Company elects to make the adjustment to the Conversion Rate described in Section
10.13(a) in the event of a Public Acquirer Change of Control, (i) Holders of Debentures will not be
entitled to receive any Additional Shares pursuant to Section 10.04(b) as a result of such Public
Acquirer Change of Control; (ii) Section 10.06 will not apply to such transaction and (iii) the
Company and the acquirer or other issuer of Public Acquirer Common Stock shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at
the date of execution of such supplemental indenture, if such supplemental indenture is then
required to so comply) providing that such Debentures shall, without the consent of any Holders of
Debentures, be convertible into a Conversion Settlement Amount based on shares of Public Acquirer
Common Stock at the adjusted Conversion Rate as specified above (subject to the conditions relating
to conversion of Debentures specified herein (including Sections 10.01, 10.02 and 10.12)). Such
supplemental indenture shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 10, as determined in good faith by the
Company or the Public Acquirer.



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     SECTION 10.14 Limitations on Foreign Ownership. The shares of Common Stock issuable upon
conversion of the Debentures are subject to limitations on foreign ownership as and to the extent
set forth in the certificate of incorporation and bylaws of the Company as of the Issue Date. By
reason of such limitations, upon conversion of the Debentures, as and to the extent set forth in
the certificate of incorporation and bylaws of the Company as of the Issue Date, an Alien (as
defined in the certificate of incorporation of the Company as of the Issue Date) holding Common
Stock received upon conversion of the Debentures will not receive or accrue any rights with respect
to any dividends or other distributions of assets declared payable or be entitled to vote with
respect to any matter submitted to stockholders and will be subject to having any Excess Shares (as
defined in the certificate of incorporation of the Company as of the Issue Date) of such Alien
redeemed by the Company for cash or for promissory notes of the Company with maturities not to
exceed ten years and bearing interest at the then-applicable rate for U.S. treasury instruments of
the same tenor. Each Debentureholder, by accepting the same, (a) agrees to and shall be bound by
such limitations and (b) authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate such limitations.



     SECTION 10.15 Conversion Limitation. No Holder shall have the right to convert any portion
of such Debenture, to the extent that after giving effect to such conversion, a Holder (together
with such Holder’s affiliates whose ownership of securities is not disaggregated from such Holder
in accordance with SEC Release No. 34-39538) would beneficially own in excess of 9.99% of the
number of shares of Common Stock outstanding immediately after giving effect to such conversion
(the “Conversion Limitation”). For purposes of the foregoing sentence, the number of shares of
Common Stock beneficially owned by a Holder and its affiliates shall include the number of shares
of Common Stock issuable upon conversion of a Debenture in respect of which the determination of
such sentence is being made, but shall exclude the number of shares of Common Stock which would be
issuable upon (A) conversion of the remaining, nonconverted portion of any Debentures beneficially
owned by such Holder or any of its affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company subject to a limitation on conversion
or exercise analogous to the limitation contained herein beneficially owned by such Holder or any
of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For
purposes of this Section 10.15, in determining the number of outstanding shares of Common Stock, a
Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the
Company’s most recent Form 10-K, 10-Q or Form 8-K, as the case may be, (y) a more recent public
announcement by the Company or (z) any other notice by the Company setting forth the number of
shares of Common Stock outstanding. For any reason at any time, upon the written or oral request
of a Holder, the Company shall within one Business Day confirm orally and in writing to such Holder
the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including any Debenture, by a Holder or its affiliates since the date as
of which such number of outstanding shares of Common Stock was reported. Notwithstanding the
foregoing, the Conversion Limitation shall not be applicable (i) on any of the ten Trading Days up
to and including the Maturity Date, (ii) during the Fundamental Change Period, or (iii) to a Holder
that, on the Issue Date, beneficially owns in excess of 9.99% of the number of shares of Common
Stock then outstanding.



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ARTICLE 11

MISCELLANEOUS




     SECTION 11.01 Trust Indenture Act Controls. If this Indenture is qualified under the TIA,
and any provision of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision shall control.



     SECTION 11.02 Notices. Any notice or communication shall be in writing and delivered in
person or mailed by first-class mail addressed as follows:



     if to the Company:


Trico Marine Services, Inc.

10001 Woodloch Forest Drive, Suite 610

The Woodlands, Texas 77380

Attention: General Counsel




     if to the Trustee:


Wells Fargo Bank, National Association

1445 Ross Avenue — 2nd Floor

Dallas, TX 75202-2812

Attention: Patrick Giordano




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



     Any notice or communication mailed to a Debentureholder shall be mailed to the Debentureholder
at the Debentureholder’s address as it appears on the Register of the Registrar and shall be
sufficiently given if so mailed within the time prescribed. The Trustee will forward to
Debentureholders any notices permitted or required to be provided by the Company to the
Debentureholders hereunder.



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



     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



     Notwithstanding any other provision of this Indenture or any Debenture, where this Indenture
or any Debenture provides for notice of any event (including any notice of redemption) to a Holder
of a Global Debenture (whether by mail or otherwise), such notice shall be



74









 







sufficiently given if given to the Depositary for such Debenture (or its designee), pursuant
to the customary procedures of such Depositary, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice.



     SECTION 11.03 Communication by Debentureholders with Other Debentureholders.
Debentureholders may communicate pursuant to TIA § 312(b) with other Debentureholders with respect
to their rights under this Indenture or the Debentures. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA § 312(c).



     SECTION 11.04 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:



     (a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and



     (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions precedent have been complied with.



     SECTION 11.05 Statements Required in Certificate or Opinion. Each certificate or opinion
with respect to compliance with a covenant or condition provided for in this Indenture shall
include:



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



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



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



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



     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 as to such matters in one or several documents.



     Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate of opinion of, or representations by, counsel. Any such
certificate or Opinion of Counsel may be based, and may state that it is so based, insofar as it



75









 







relates to factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company.



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



     SECTION 11.06 When Debentures Disregarded. In determining whether the Debentureholders of
the required principal amount of Debentures have concurred in any direction, waiver or consent,
Debentures owned by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be disregarded and deemed not
to be outstanding, except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Debentures which a Trust
Officer of the Trustee knows are so owned shall be so disregarded. Subject to the foregoing, only
Debentures outstanding at the time shall be considered in any such determination.



     SECTION 11.07 Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable
rules for action by or a meeting of Debentureholders. The Registrar and the Paying Agent may make
reasonable rules for their functions.



     SECTION 11.08 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York, Houston, Texas or the
location of the Corporate Trust Office. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record date shall not be
affected.



     SECTION 11.09 Governing Law. THIS INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     SECTION 11.10 No Interpretation of or by Other Agreements. This Indenture may not be used
to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.



     SECTION 11.11 Successors. All agreements of the Company in this Indenture and the
Debentures shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.



     SECTION 11.12 Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



     SECTION 11.13 Table of Contents; Headings. The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for



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convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.



     SECTION 11.14 Indenture and Debentures Solely Corporate Obligations. No recourse for the
payment of the principal of or, premium, if any, or interest on any Debentures or for any claim
based upon any Debentures 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 supplemental indenture
or in any Debentures or because of the creation of any indebtedness represented thereby shall be
had against any incorporator, stockholder, member, manager, employee, agent, officer, director or
subsidiary, as such, past, present or future, of the Company or any of the Company’s subsidiaries
or of any successor thereto, either directly or through the Company or any of the Company’s
subsidiaries or any successor thereto, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Debentures.



     SECTION 11.15 Severability. In case any provision in this Indenture or in the Debentures
is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.



     SECTION 11.16 Benefits of Indenture. Nothing in this Indenture or in the Debentures,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Debentures, any benefit or any legal or equitable right, remedy or
claim under this Indenture or the Debentures.



     SECTION 11.17 Calculations. Except as otherwise provided herein, the Company shall be
responsible for making all calculations called for under this Indenture and the Debentures. The
Company or its agents shall make all such calculations in good faith and, absent manifest error,
its calculations will be final and binding on the Holders. The Company upon request shall provide
a schedule of its calculations to the Trustee, and the Trustee shall be entitled to rely
conclusively upon the accuracy of the Company’s calculations without independent verification. The
Trustee shall deliver a copy of such schedule to any Holder upon the written request of such
Holder.



     SECTION 11.18 Turnover of Proceeds. The Debentures are expressly subordinated in right of
payment to the 2028 Convertible Debentures. Each Holder of the Debentures agrees that, in the event
of a payment default on the 2028 Convertible Debentures, the Holders of the Debentures shall not be
entitled to receive payments from the Company or its Subsidiaries prior to the payment in full of
the 2028 Convertible Debentures. To the extent that any Holder receives any payment contrary to the
foregoing, it agrees it shall hold it in trust for the benefit of the holders of the 2028
Convertible Debentures, shall segregate such payment from other funds and property held by such
Holder and shall forthwith pay the amount of such payment over to the trustee under the 2028
Indenture in the same form as so received (with any necessary endorsement) to be applied (in the
case of cash) to or held as collateral (in the case of securities or other non-cash property) for
the payment or prepayment of the 2028 Convertible



77









 







Debentures until the earlier of (i) such Event of Default is cured or waived by the holders of the
2028 Debentures or (ii) payment in full of the 2028 Convertible Debentures.



ARTICLE 12

SECURITY




     SECTION 12.01 Grant of Security Interest; Remedies. (a) In order to secure the obligations
of the Company hereunder, the Company hereby covenants to, and to cause each of its Subsidiaries,
as applicable, to, execute and deliver on or before the Issue Date, and from time to time
thereafter as appropriate, the Security Documents providing for the Second Lien. Reference is made
hereby to each such Security Document for a more complete description of the terms and provisions
thereof. Each holder of a Debenture, by accepting a Debenture, and the Trustee agree to all of the
terms and provisions of each Security Document, including the limitations and Collateral release
provisions in the Intercreditor Agreement.



     (b) If an Event of Default has occurred and is continuing, the Trustee may take all actions it
deems necessary or appropriate, including, but not limited to, foreclosing upon the Collateral in
accordance with the Security Documents and applicable law, subject, however, to the terms of the
Intercreditor Agreement. Subject to the provisions of the applicable Security Documents and to the
terms of the Intercreditor Agreement, (a) the Trustee may, in its sole discretion and without the
consent of the holders of the Debentures, take all actions it deems necessary or appropriate in
order to (i) enforce any of the terms of the Security Documents and (ii) collect and receive any
and all amounts payable in respect of the obligations of the Company hereunder, and (b) the Trustee
shall have power to institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Collateral by any act that may be unlawful or in violation of the
Security Documents or this Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the holders of the Debentures
in the Collateral (including the power to institute and maintain suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest thereunder or be prejudicial to
the interests of the holders of the Debentures or of the Trustee).



     (c) Unless an Event of Default shall have occurred and be continuing, the Company and its
Subsidiaries will have the right to remain in possession and retain exclusive control of the
Collateral, to freely operate the Collateral and to collect, invest and dispose of any income
thereon or therefrom except as provided in the Security Documents.



     (d) Each Holder, by its acceptance of a Debenture, consents and agrees to the terms of each
Security Document, as the same may be in effect or may be amended from time to time in accordance
with its respective terms, and authorizes and directs the Trustee to enter into the Security
Documents and to make certain covenants on such Holder’s behalf therein and perform its obligations
and exercise its rights thereunder in accordance therewith.



     (e) In any circumstance where the Trustee is required to exercise discretion, approve
documentation, or give its consent under any Security Document, the Trustee may, at its option,



78









 







seek to obtain instructions or directions from the Holders of a majority in principal amount
of the Debentures then outstanding with respect to such action. If the Trustee so elects, then it
may refrain from taking such action until such directions or instructions are received by a
Responsible Officer and shall have no liability to the Holders for so refraining.



     SECTION 12.02 Recording and Opinions. The Company shall take or cause to be taken all
action required to perfect, maintain, preserve and protect the Second Lien including, without
limitation, the filing of financing statements, continuation statements and any instruments of
further assurance, in such manner and in such places as may be required by law fully to preserve
and protect the rights of the holders of the Debentures and the Trustee under this Indenture and
the Security Documents to the Collateral. The Company shall from time to time promptly pay all
financing and continuation statement recording and/or filing fees, charges and taxes relating to
this Indenture, the Security Documents, any amendments thereto and any other instruments of further
assurance required pursuant to the Security Documents.



     SECTION 12.03 Release of Collateral. The Trustee, in its capacity as the Trustee or
collateral agent, as applicable, under the Security Documents, shall not at any time release
Collateral from the Second Lien unless such release is in accordance with the provisions of this
Indenture, the Security Documents or the Intercreditor Agreement.



     (a) The Company and its Subsidiaries, as applicable, shall be entitled to obtain a full
release of all of the Collateral from the Second Lien or an assignment of the Second Lien to a
Person designated by the Company upon compliance with the conditions precedent set forth in Section
8.01 for satisfaction and discharge of this Indenture. Upon delivery by the Company to the Trustee
of an Officers’ Certificate and an Opinion of Counsel, each to the effect that such conditions
precedent have been complied with (and which may be the same Officers’ Certificate and Opinion of
Counsel required by Article 8), the Trustee shall forthwith take all necessary action (at the
request of and the expense of the Company) to release and reconvey to the relevant Person all of
the Collateral without any representations or warranties, and shall deliver such Collateral in its
possession to the Company, including, without limitation, the execution and delivery of releases
and satisfactions wherever required.



     (b) Upon compliance by the Company with the conditions in this Indenture or the Security
Documents in respect of any sale, transfer or other disposition, including, without limitation, the
Asset Sale provisions of Section 1(d) of the Debenture, the Trustee shall release the Released
Interests from the Second Lien and reconvey the Released Interests to the Company or the grantor of
the Second Lien on such property without any representations or warranties. The Company will have
the right to obtain a release of items of Collateral (the “Released Interests”) subject to any
sale, transfer or other disposition in accordance with this Indenture, including, without
limitation, the Asset Sale provisions of Section 1(d) of the Debenture, or owned by a Subsidiary of
the Company the Capital Stock of which is sold in compliance with the terms of this Indenture,
including, without limitation, the Asset Sale provisions of Section 1(d) of the Debenture, such
that it ceases to be a Subsidiary of the Company.



     (c) The Trustee shall not release its Lien on any of the Collateral except as set forth in
Section 12.03(a), Section 12.03(b), the Intercreditor Agreement or the Security Documents or as
follows (capitalized terms in this Section 12.03(c) and in Section 12.05 not defined herein shall



79









 







have the meaning as set forth in the Intercreditor Agreement or, with respect to any Permitted
Indebtedness issued in replacement thereof, the intercreditor agreement, by and between the
collateral agent for such Permitted Indebtedness and the Trustee with respect thereto):




     (i) in connection with an Asset Sale to the extent such release is permitted pursuant
to Section 1(d) of the Debenture; or




     (ii) with respect to any Lien on any Additional Collateral (as defined in Section
12.05), upon receipt of the written request of the First-Lien Collateral Agent and the
release of the Lien on such Collateral by the First-Lien Collateral Agent and First-Lien
Creditors.


Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel,
each to the effect that such conditions precedent have been complied with, the Trustee shall
forthwith take all necessary action (at the request of and the expense of the Company) to release
and reconvey to the relevant Person all of the Collateral without any representations or
warranties, and shall deliver such Collateral in its possession to the Company, including, without
limitation, the execution and delivery of releases and satisfactions wherever required.




     SECTION 12.04 Rights of Purchasers; Form and Sufficient of Release. No purchaser or grantee
of any property or rights purporting to be released herefrom shall be bound to ascertain the
authority of the Trustee to execute the release or to inquire as to the existence of any conditions
herein prescribed for the exercise of such authority; nor shall any purchaser or grantee of any
property or rights permitted by this Indenture to be sold or otherwise disposed of by the Company
or any of its Subsidiaries be under any obligation to ascertain or inquire into the authority of
the Company or such Subsidiary to make such sale or other disposition. In the event that any Person
has sold, exchanged, or otherwise disposed of or proposes to sell, exchange or otherwise dispose of
any portion of the Collateral that may be sold, exchanged or otherwise disposed of, and the Company
or any of its Subsidiaries makes written request to the Trustee to furnish a written disclaimer,
release or quit-claim of any interest in such property or rights under this Indenture and the
Security Documents, the Trustee, in its capacity as secured party under the Security Documents,
shall execute, acknowledge and deliver to the Company or such Subsidiary (in proper form and
without any representation or warranty) such an instrument promptly after satisfaction of the
conditions set forth herein for delivery of any such release. Notwithstanding the preceding
sentence, all purchasers and grantees of any property or rights purporting to be released herefrom
shall be entitled to rely upon any release executed by the Trustee hereunder as sufficient for the
purpose of this Indenture and the Security Documents and as constituting a good and valid release
of the property therein described from the Second Lien.



     SECTION 12.05 Additional Collateral. At any time the Trustee is entitled to receive any
additional Collateral (“Additional Collateral”) pursuant to Section 2.3(b) of the Intercreditor
Agreement (or, with respect to any Permitted Indebtedness issued in replacement thereof, the
intercreditor agreement, by and between the collateral agent for such Permitted Indebtedness and
the Trustee with respect thereto), the Company hereby agrees to take all actions necessary to grant
to the Trustee a Second Lien in such Collateral and permit the Trustee to perfect its Second Lien
on such Additional Collateral, including, without limitation, entering into such agreements in form
and substance similar in all material respects (omitting, to the extent



80









 




such Additional Collateral is comprised of a vessel which is not classified, any representations,
warranties or covenants regarding classification) to the agreements entered into with respect to the Lien of the First-Lien
Collateral Agent (or the collateral agent for such Permitted Indebtedness, as applicable) on such Additional Collateral,
mutatis mutandis, to reflect any material differences between the security documents of the First-Lien Collateral Agent on the
Issue Date and the Security Documents on the Issue Date. At the time the Company grants a Lien on Additional Collateral in favor
of the Trustee, the Company shall deliver to the Trustee an updated Annex A; provided that, for the avoidance of doubt, any changes to
Annex A (x) may only include Liens in effect as of such date of a type described in clauses (ii), (vi) and/or (xii) of the definition of
“Permitted Liens” and (y) shall apply solely to such Additional Collateral..




[Signature Page Follows]





81











 





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



	 	 	 	 	 	 	 
	 	 	TRICO MARINE SERVICES, INC., as Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL	 	 
	 	 	ASSOCIATION, as Trustee,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Patrick Giordano
	 	 
	 

	 	Title:
	 	Vice President, Senior Relationship	 	 
	 

	 	 	 	Manager (Corporate Trust Services)	 	 






82









 





EXHIBIT A




[FORM OF FACE OF DEBENTURE]




[Global Debentures Legend]




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



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



[Restricted Debentures Legend]




     THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF OR A
BENEFICIAL INTEREST HEREIN, THE HOLDER:




(1) AGREES THAT IT WILL NOT, PRIOR TO MAY 16, 2009, RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK THAT MAY BE ISSUABLE UPON CONVERSION OF SUCH
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT OF 1933, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER, OR (D) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT OF 1933, INCLUDING UNDER RULE 144, IF AVAILABLE, SUBJECT TO THE
COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH TRANSFER, TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR



1









 







OTHER INFORMATION SATISFACTORY TO THE COMPANY AND THE TRUSTEE; AND




(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(A) AND 1(C) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.




2









 








			
	 	 	 
	No.                    
	 	$                         






8.125% Secured Convertible Debenture due 2013




CUSIP No.:                     




     Trico Marine Services, Inc., a Delaware corporation, promises to pay to
[                                        ]1, the principal sum of                     
Dollars [, as revised by the
Schedule of Increases or Decreases in Global Debenture attached hereto,]1 such payment
to be made at the times and in the amounts set forth herein.



     Interest Payment Dates: May 15 and November 15.



     Record Dates: May 1 and November 1.



     Reference is made to the further provisions of this Debenture set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Debenture the right to convert
this Debenture into Common Stock and, if applicable, cash, on the terms and subject to the
limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such
further provisions shall for all purposes have the same effect as though fully set forth at this
place.



     This Debenture shall not be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.



     IN WITNESS WHEREOF, Trico Marine Services, Inc. has caused this instrument to be duly
executed.



	 	 	 	 	 	 	 
	 	 	TRICO MARINE SERVICES, INC.	 	 
	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	Dated:
	 	 	 	 	 	 








 




			
	1	 	Use the Schedule of Increases and Decreases language if
Debenture is in Global form.




3









 










TRUSTEE’S CERTIFICATE OF

AUTHENTICATION

WELLS FARGO BANK, NATIONAL

ASSOCIATION,



as Trustee, certifies that

this is one of the Debentures

referred to in the Indenture.




By:




                    
                                        

Authorized Signatory





4









 








[FORM OF REVERSE SIDE OF DEBENTURE]




8.125% Secured Convertible Debenture due 2013



1. Interest and Principal




     (a) TRICO MARINE SERVICES, INC., a Delaware corporation (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the unpaid principal amount of this Debenture at the rate of 8.125
percent per annum (the “Interest Rate”). The Company will pay interest semiannually on May 15 and
November 15 of each year commencing on November 15, 2009. Interest on the Debentures will accrue
from the most recent date to which interest has been paid or, if no interest has been paid, from
May 15, 2009. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If
a payment date is not a Business Day, payment will be made on the next succeeding Business Day, and
no additional interest will accrue in respect of such payment by virtue of the payment being made
on such later date.



     (b) Additional Interest. The Holder of this Debenture shall be entitled to receive
Additional Interest as and to the extent provided in the Indenture.



     (c) Principal. Principal will be paid in installments in cash on the dates and in the
amounts indicated in the Installment Payment Schedule attached hereto. Subject to the Equity
Conditions being satisfied on the date of any principal installment payment, the Company shall have
the right at its option to satisfy its obligation to make any such principal installment payment,
when due, by delivering, in lieu of cash, a number of shares of Common Stock equal to the principal
installment amount then due divided by a price that is equal to 95% of the average Volume Weighted
Average Price of the Common Stock for each Trading Day in the period of ten consecutive Trading
Days ending on the fifth Trading Day immediately prior to the date on which such payment is due,
rounded to the nearest whole share. To exercise its right described in the preceding sentence, the
Company shall give the Holder of this Debenture notice of such election not later than the first
Business Day of the calendar month preceding the due date of such principal installment payment.



     Notwithstanding any provision of this Section 1(c) to the contrary, if the Trustee receives a
notice at least 30 calendar days prior to a Principal Payment Date from beneficial holders of a
majority in principal amount of the Debentures then outstanding, with signatures medallion
guaranteed by a broker, electing to have the payment of all or any portion of an installment of
principal on the Debentures payable on such Principal Payment Date deferred (a “Deferral” and such
amount deferred, the “Deferral Amount”) to the Maturity Date, the Installment Payment Schedule
shall be automatically amended to provide that such installment of principal on the Debentures
shall no longer be payable on such Principal Payment Date and shall be payable on the Maturity
Date. On the first Trading Day following receipt of such notice of Deferral from beneficial
holders of a majority in principal amount of the Debentures then outstanding, the Trustee shall
deliver a notice to the Company and each Holder of Debentures stating that a Deferral will be made,
which notice shall include (i) the aggregate Deferral Amount and (ii) the Principal Payment Date
prior to such Deferral.



1









 





     (d) Asset Sales.




     (i) If the Company or any of its Subsidiaries consummates any Asset Sale resulting in
gross cash proceeds to the Company of $5,000,000 or more, then 50% of the Net Cash Proceeds
from such Asset Sale shall constitute “Single Asset Sale Proceeds.” The Company shall apply
such Single Asset Sale Proceeds to the pro rata repayment of principal on the outstanding
Debentures.




     (ii) After the Issue Date, the consummation by the Company or any of its Subsidiaries
of any Asset Sale resulting in gross cash proceeds to the Company of greater than $500,000
but less than $5,000,000 shall constitute an “Eligible Asset Sale.” If the Company or any
of its Subsidiaries consummates two or more Eligible Asset Sales that result in gross cash
proceeds to the Company in excess of $10,000,000 (the “Multiple Asset Sale Threshold”), then
50% of the Net Cash Proceeds from such Eligible Asset Sales shall constitute “Multiple Asset
Sale Proceeds” and the Company shall apply such Multiple Asset Sale Proceeds to the pro rata
repayment of principal on the outstanding Debentures; provided, however,
that on each anniversary of the Issue Date, $5,000,000 of Multiple Asset Sale Proceeds that
have been received during the preceding 12 months shall be deducted from the cumulative
total of Multiple Asset Sale Proceeds for the purposes of determining whether the Multiple
Asset Sale Threshold is met.




     (iii) The Company shall cause the Single Asset Sale Proceeds and/or Multiple Asset Sale
Proceeds of any Asset Sale to be delivered to the Trustee, by wire transfer in U.S. dollars
and immediately available funds in accordance with the written wire instructions of the
Trustee, no later than the Principal Payment Date with respect to such Asset Sale.




     (iv) At least one Business Day prior to the consummation of any Asset Sale resulting in
gross cash proceeds to the Company of more than $500,000, the Company shall deliver to the
Trustee a written notice (the “Asset Sale Notice”) which shall include (A) a reasonable
description of the Asset Sale, including, without limitation, the assets in such Asset Sale
and whether such assets include any Collateral, (B) the gross cash proceeds of such Asset
Sale, (C) the Net Cash Proceeds (including reasonable detail with respect to the
calculations related thereto), (D) whether the proceeds of such sale will constitute Single
Asset Sale Proceeds and/or Multiple Asset Sale Proceeds (including reasonable detail with
respect to the calculations related thereto), (E) the date of the expected consummation of
the Asset Sale, and (F) if the Trustee is required to release any Collateral with respect to
such Asset Sale, any required release documentation with respect to the Collateral to be
executed by the Trustee and released to the Company after either (I) the Single Asset Sale
Proceeds and/or Multiple Asset Sale Proceeds, if any, from such sale have been delivered to
the Trustee, (II) the Trustee has received evidence reasonably satisfactory to the Trustee
that such Single Asset Sale Proceeds and/or Multiple Asset Sale Proceeds, if any, will be
delivered to the Trustee directly by the purchaser of such assets in such Asset Sale on the
date of the consummation of such Asset Sale or (III) promptly following the Trustee’s
receipt of the Asset Sale Notice if the Asset Sale will not result in any Single Asset Sale
Proceeds or Multiple Asset Sale Proceeds.



2









 






     (v) Upon delivery by the Company to the Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that the terms and conditions of the Indenture and this
Debenture with respect to the Asset Sale have been complied with, including, without
limitation, the conditions precedent to the release of Collateral related thereto, the
Trustee shall forthwith take all necessary action (at the request of and the expense of the
Company) to release and reconvey to the relevant Person all of the Collateral without any
representations or warranties, and shall deliver such Collateral in its possession to the
Company, including, without limitation, the execution and delivery of releases and
satisfactions wherever required.




     (vi) Notwithstanding anything to the contrary in this Section 1(d), until the Single
Asset Sale Proceeds or Multiple Asset Sale Proceeds, as applicable, is paid in full, a
Holder may convert any outstanding principal amount of its Debenture into Common Stock.



2. Method of Payment




     The Company will pay interest on the Debentures (except defaulted interest) to the Persons who
are registered Holders of Debentures at the close of business on the Record Date next preceding the
interest payment date even if Debentures are canceled after such Record Date and on or before the
interest payment date, except as otherwise provided in the Indenture. The Company will pay
principal and interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. The Company shall pay interest (i) on any
Global Debentures by wire transfer of immediately available funds to the account of the Depositary
or its nominee, (ii) on any Debentures in certificated form having a principal amount of less than
$2,000,000, by check mailed to the address of the Person entitled thereto as it appears in the
Register, provided, however, that at maturity interest will be payable at the
office of the Company maintained by the Company for such purposes, which shall initially be an
office or agency of the Trustee (as defined below) and (iii) on any Debentures in certificated form
having a principal amount of $2,000,000 or more, by wire transfer in immediately available funds to
an account in the United States at the election of the Holder of such Debentures duly delivered to
the Trustee at least five Business Days prior to the relevant interest payment date,
provided, however, that at maturity interest will be payable at the office of the
Company maintained by the Company for such purposes in Dallas, Texas, which shall initially be an
office or agency of the Trustee.



     The Company will, other than on the Maturity Date, make payments of principal on the
Debentures to the Persons who are registered Holders of Debentures at the close of business on the
Record Date preceding the applicable Principal Payment Date, unless the Debentures are repaid,
redeemed, canceled or converted after the Record Date and on or before the applicable Principal
Payment Date. The Company shall pay principal (i) on any Global Debentures by wire transfer of
immediately available funds to the account of the Depositary or its nominee, (ii) on any Debentures
in certificated form having a principal amount of less than $2,000,000, by check mailed to the
address of the Person entitled thereto as it appears in the Register, and (iii) on any Debentures
in certificated form having a principal amount of $2,000,000 or more, by wire transfer in
immediately available funds to an account in the United States at the election of the Holder of
such Debentures duly delivered to the Trustee at least five Business Days prior to the



3









 







relevant Principal Payment Date; provided, however, that any payment of
principal that is payable on the Maturity Date will be payable at the office of the Company
maintained by the Company for such purposes in Dallas, Texas, which shall initially be an office or
agency of the Trustee. Holders must surrender Debentures to a Paying Agent to collect any principal
payments payable on the Maturity Date.



3. Paying Agent and Registrar




     Initially, Wells Fargo Bank, National Association (the “Trustee”), will act as Paying Agent,
Registrar and conversion agent. The Company may appoint and change any Paying Agent, Registrar or
co-registrar or conversion agent without notice. The Company or any of its domestically organized
wholly owned Subsidiaries may act as Paying Agent or Registrar or co-registrar.



4. Indenture




     The Company issued the Debentures under an Indenture dated as of [•], 2009 (the “Indenture”),
between the Company and the Trustee. The terms of the Debentures include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the Indenture (except as
specifically provided in Section 1(b) hereof). The Debentures are subject to all such terms, and
Debentureholders are referred to the Indenture and the TIA for a statement of those terms.



     The Debentures are secured obligations of the Company. The Debentures are expressly
subordinated in right of payment to the 2028 Convertible Debentures. Each Holder of the Debentures
agrees that, in the event of a payment default on the 2028 Convertible Debentures, the Holders of
the Debentures shall not be entitled to receive payments from the Company or its Subsidiaries prior
to the payment in full of the 2028 Convertible Debentures. To the extent that any Holder receives
any payment contrary to the foregoing, it agrees it shall hold it in trust for the benefit of the
holders of the 2028 Convertible Debentures, shall segregate such payment from other funds and
property held by such Holder and shall forthwith pay the amount of such payment over to the
trustee under the 2028 Indenture in the same form as so received (with any necessary endorsement)
to be applied (in the case of cash) to or held as collateral (in the case of securities or other
non-cash property) for the payment or prepayment of the 2028 Convertible Debentures until the
earlier of (i) such Event of Default is cured or waived by the holders of the 2028 Debentures or
(ii) payment in full of the 2028 Convertible Debentures.



5. Optional Redemption




     No sinking fund is provided for the Debentures. At any time commencing on or after May 1,
2011, the outstanding Debentures may be redeemed at the option of the Company, in whole or in part
from time to time, on not less than 30 calendar days’ nor more than 60 calendar days’ prior notice,
if the Closing Sale Price of the Common Stock on no fewer than 20 consecutive Trading Days has
exceeded 135% of the Conversion Price.



     All such optional redemptions shall be at the Company Redemption Price.



4









 





6. Notice of Redemption




     Notice of redemption will be mailed by first-class mail at least 30 calendar days but not more
than 60 calendar days before the redemption date to each Holder of Debentures to be redeemed at his
or her registered address. Debentures in denominations larger than $1,000 may be redeemed in part
but only in whole multiples of $1. If money sufficient to pay the redemption price of and
accrued interest on all Debentures (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Debentures (or such portions
thereof) called for redemption.



7. Repurchase of Debentures at the Option of Debentureholders




     If a Fundamental Change occurs at any time prior to maturity of the Debentures, this Debenture
will be subject to a repurchase, at the option of the Holder, on a Fundamental Change Repurchase
Date, specified by the Company, that is not less than 20 calendar days nor more than 35 calendar
days after notice thereof, at a repurchase price equal to 100% of the principal amount hereof,
together with accrued and unpaid interest on this Debenture to, but excluding, the Fundamental
Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls
after a record date and on or prior the corresponding interest payment date, the accrued and unpaid
interest shall be payable to the holder of record of this Debenture on the applicable record date
instead of the Holders surrendering the Debentures for repurchase on such date. For Debentures to
be so repurchased at the option of the Holder, the Holder must deliver to the Paying Agent in
accordance with the terms of the Indenture, the Repurchase Notice containing the information
specified by the Indenture, together with such Debentures, duly endorsed for transfer, or (if the
Debentures are Global Debentures) book-entry transfer of the Debentures, prior to 5:00 p.m., New
York City time, on the Fundamental Change Repurchase Date.



     Holders have the right to withdraw any Repurchase Notice by delivering to the Paying Agent a
written notice of withdrawal at any time prior to 5:00 p.m., New York City time, on the Fundamental
Change Repurchase Date, all as provided in the Indenture.



8. Conversion




     Subject to and upon compliance with the provisions of the Indenture, the Holder hereof has the
right, at its option, to convert each $1,000 principal amount of this Debenture into Common Stock
based on a Conversion Rate of 71.4286 shares of Common Stock per $1000 principal amount of
Debentures (equivalent to a Conversion Price of $14 per share), as the same may be adjusted
pursuant to the terms of the Indenture and, if applicable, cash. As specified in the Indenture,
upon conversion by any Holder, the Company will pay to such Holder, per $1,000 principal amount of
Debentures, an amount in cash equal to the Interest Make-Whole, if applicable, and deliver the
applicable Settlement Shares (as defined in the Indenture).



     If and only to the extent Holders elect a Non-Stock Change of Control Conversion (as defined
in the Indenture), the Company may be required to increase the Conversion Rate applicable to such
converting Debentures; provided that in the case of a Non-Stock Change of Control
constituting a Public Acquirer Change of Control (as defined in the Indenture), the



5









 







Company may, in lieu of increasing the Conversion Rate, elect to adjust the conversion
obligation and the Conversion Rate such that from and after the effective date of such Public
Acquirer Change of Control, Holders of the Debentures will be entitled to convert their Debentures
(subject to the satisfaction of certain conditions) into a number of shares of Public Acquirer’s
Common Stock (as defined in the Indenture) determined as set forth in the Indenture.



     If this Debenture (or portion hereof) is surrendered for conversion during the period from
5:00 p.m., New York City time, on any applicable Record Date for the payment of interest to 5:00
p.m., New York City time, on the Business Day preceding the corresponding interest payment date,
this Debenture (or portion hereof being converted) must be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal to the interest
(excluding any Additional Interest) otherwise payable on such interest payment date on the
principal amount being converted; provided that no such payment shall be required (1) if
the Holder surrenders this Debenture for conversion in connection with a redemption and the Company
has specified a redemption date that is after a Record Date and on or prior to the corresponding
interest payment date, (2) if the Holder surrenders this Debenture in connection with a Fundamental
Change and the Company has specified a Fundamental Change Repurchase Date that is after a Record
Date and on or prior to the corresponding interest payment date or (3) to the extent of any overdue
interest, if any, existing at the time of conversion with respect to this Debenture.



     Furthermore, any Debentures or portion thereof surrendered for conversion during the period
from 5:00 p.m., New York City time, on the Record Date for any Principal Payment Date to 5:00 p.m.,
New York City time, on the Business Day preceding the applicable Principal Payment Date shall be
accompanied by payment, in immediately available funds or other funds acceptable to the Company, of
an amount equal to the principal that is otherwise payable on such Principal Payment Date in
respect of such Debentures surrendered for conversion; provided that if the Trustee has
notified the Holders of a Deferral (as defined in the Debenture) relating to such Principal Payment
Date pursuant to Section 1(c) of the Debentures, the payment due by the Holder will be reduced by
the portion of the principal otherwise payable on such date that is being deferred.



     No fractional shares will be issued upon any conversion of Debentures, but an adjustment and
payment in cash will be made, as provided in the Indenture, in respect of any fraction of a share
which would otherwise be issuable upon the surrender of any Debentures or Debentures for
conversion.



     A Debenture in respect of which a Holder is exercising its right to require repurchase may be
converted only if such Holder validly withdraws its election to exercise such right to require
repurchase in accordance with the terms of the Indenture.



9. Denominations, Transfer, Exchange




     The Debentures are in registered form without coupons in denominations of $1,000 and whole
multiples of $1. A Debentureholder may transfer or exchange Debentures in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a
Debentureholder, among other things, to furnish appropriate endorsements or transfer



6









 







documents and to pay any taxes required by law or permitted by the Indenture. The Registrar
need not issue, register the transfer of, or exchange any Debentures during the period of 15 days
before the mailing of the notice of redemption, or register the transfer of or exchange any
Debentures so selected for redemption, in whole or in part, except the unredeemed portion of any
Debentures being redeemed in part.



10. Persons Deemed Owners 




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



11. Unclaimed Money




     Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon written request any money held by them for the payment of principal or interest
and any shares of Common Stock or other property due in respect of converted Debentures that
remains unclaimed for two years, and, thereafter, Debentureholders entitled to the money and/or
securities must look to the Company for payment as general creditors.



12. Amendment, Waiver




     Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Debentures
may be amended without prior notice to any Debentureholder but with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding Debentures and (ii)
any default or noncompliance with any provision may be waived with the written consent of the
Holders of at least a majority in principal amount of the outstanding Debentures. In certain
circumstances set forth in the Indenture, the Company and the Trustee may amend the Indenture or
the Debentures without the consent of any Holder of Debentures.



13. Defaults and Remedies




     If an Event of Default occurs (other than an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization) and is continuing, the Trustee or the Holders of at least
25% in principal amount of the outstanding Debentures may declare the principal of and accrued but
unpaid interest on all the Debentures to be due and payable, except as provided in the Indenture.
If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization
occurs, the principal of and interest on all the Debentures will become immediately due and payable
without any declaration or other act on the part of the Trustee or any Debentureholders. Under
certain circumstances, the Holders of a majority in principal amount of the outstanding Debentures
may rescind any such acceleration with respect to the Debentures and its consequences. No
reference herein to the Indenture and no provision of this Debenture or of the Indenture shall
impair, as among the Company and the Holder of the Debentures, the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, on and interest on this
Debenture at the place, at the respective times, at the rate and in the coin or currency herein and
in the Indenture prescribed or to convert the Debenture as provided in the Indenture.



7









 





14. Trustee Dealings with the Company




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



15. Indenture and Debentures Solely Corporate Obligations




     No recourse for the payment of the principal of or, premium, if any, or interest on any
Debentures or for any claim based upon any Debentures or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or in
any supplemental indenture or in any Debentures or because of the creation of any indebtedness
represented thereby shall be had against any incorporator, stockholder, member, manager, employee,
agent, officer, director or subsidiary, as such, past, present or future, of the Company or any of
the Company’s subsidiaries or of any successor thereto, either directly or through the Company or
any of the Company’s subsidiaries or any successor thereto, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and released as a condition
of, and as a consideration for, the execution of the Indenture and the issue of the Debentures.



16. Authentication




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



17. Abbreviations




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



18. GOVERNING LAW




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



19. CUSIP and ISIN Numbers




     Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Debentures and has
directed the Trustee to use CUSIP and ISIN numbers in notices of redemption as a convenience to
Debentureholders. No representation is made as to the accuracy



8









 







of such numbers either as printed on the Debentures or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers placed thereon.



20. Limitations on Foreign Ownership.




     The shares of Common Stock issuable upon conversion of the Debentures are subject to
limitations on foreign ownership as and to the extent set forth in the certificate of incorporation
and bylaws of the Company as of the Issue Date. By reason of such limitations, upon conversion of
the Debentures, as and to the extent set forth in the certificate of incorporation and bylaws of
the Company as of the Issue Date, an Alien (as defined in the certificate of incorporation of the
Company as of the Issue Date) holding Common Stock received upon conversion of the Debentures will
not receive or accrue any rights with respect to any dividends or other distributions of assets
declared payable or be entitled to vote with respect to any matter submitted to stockholders and
will be subject to having any Excess Shares (as defined in the certificate of incorporation of the
Company as of the Issue Date) of such Alien redeemed by the Company for cash or for promissory
notes of the Company with maturities not to exceed ten years and bearing interest at the
then-applicable rate for U.S. treasury instruments of the same tenor. Each Debentureholder, by
accepting the same, (a) agrees to and shall be bound by such limitations and (b) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate such limitations.



     The Company will furnish to any Holder of Debentures upon written request and without charge
to the Holder a copy of the Indenture.



9









 





INSTALLMENT PAYMENT SCHEDULE



Subject to the deferral provision in Section 1(c) of this Debenture, installments of principal on
this Security shall be payable on each Principal Payment Date indicated below, and the amount of
each such installment shall be calculated as the product of the percentage specified below for such
Principal Payment Date multiplied by the original principal amount of such Debenture less the
amount of prepayments of principal repaid with Net Cash Proceeds from an Asset Sale in accordance
with Section 1(d) of this Security (with any fraction of $1.00 being rounded upwards or downwards
to the nearest $1.00 (with $0.50 being rounded upwards) notwithstanding anything to the contrary in
the Indenture or the Security):




	 	 	 	 	 
	Principal Payment Date	 	Percentage
	August 1, 2010

	 	 	 5%	 
	November 1, 2010

	 	 	 5%	 
	February 1, 2011

	 	 	 5%	 
	May 1, 2011

	 	 	 5%	 
	August 1, 2011

	 	 	 5%	 
	November 1, 2011

	 	 	 5%	 
	February 1, 2012

	 	 	 14%	 
	May 1, 2012

	 	 	 14%	 
	August 1, 2012

	 	 	 14%	 
	November 1, 2012

	 	 	 14%	 
	February 1, 2013

	 	 	 14%	 






10









 






CONVERSION NOTICE



TO: TRICO MARINE SERVICES, INC. and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee




     The undersigned registered owner of this Debenture hereby irrevocably exercises the option to
convert this Debenture, or the portion thereof (which is $1,000 or a
multiple of $1 thereof) below
designated, into, cash and shares of Common Stock of Trico Marine Services, Inc., if any, in
accordance with the terms of the Indenture referred to in this Debenture, and directs that the
check in payment for cash and the shares, if any, issuable and deliverable upon such conversion,
deliverable upon conversion or for fractional shares and any Debentures representing any
unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless
a different name has been indicated below. Capitalized terms used herein but not defined shall have
the meanings ascribed to such terms in the Indenture. If shares or any portion of this Debenture
not converted are to be issued in the name of a person other than the undersigned, the undersigned
will provide the appropriate information below and pay all taxes or duties payable with respect
thereto. Any amount required to be paid by the undersigned on account of interest accompanies this
Debenture.



Dated:                     




	 	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Signature(s)	 	 
	 
	 

	 	Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the
Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion
Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.	 	 
	 
	 
	 	 	 	 
	 

	 	 

Signature Guarantee
	 	 






11









 





     Fill in the registration of shares of Common Stock, if any, if to be issued, and Debentures if
to be delivered, and the person to whom cash, if any, and payment for fractional shares is to be
made, if to be made, other than to and in the name of the registered Holder:



Please print name and address




(Name)




(Street Address)




(City, State and Zip Code)




Principal amount to be converted

(if less than all):



$


Social Security or Other Taxpayer

Identification Number:









NON-STOCK CHANGE OF CONTROL CONVERSION ELECTION (IF APPLICABLE):




	 	 	 	 	 
	 
	 	 Check box that applies:
	 
	 	 	 	 
	Holder elects to receive the Interest Make-Whole
	 	 	o	 
	 
	 	 	 	 
	Holder elects to receive the Make-Whole Consideration
	 	 	o	 









NOTICE: The signature on this Conversion Notice must correspond with the name as written upon the
face of the Debentures in every particular without alteration or enlargement or any change
whatever.




12









 





REPURCHASE NOTICE



TO: TRICO MARINE SERVICES, INC. and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee




     The undersigned registered owner of this Debenture hereby irrevocably acknowledges receipt of
a notice from Trico Marine Services, Inc. (the “Company”) regarding the right of Holders to elect
to require the Company to repurchase the Debentures and requests and instructs the Company to repay
the entire principal amount of this Debenture, or the portion thereof (which is $1,000 or an
integral multiple of $1 thereof) below designated, in accordance with the terms of the Indenture at the
price of 100% of such entire principal amount or portion thereof, together with, except as provided
in the Indenture, accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase
Date, to the registered Holder hereof. Capitalized terms used herein but not defined shall have
the meanings ascribed to such terms in the Indenture. The Debentures shall be repurchased by the
Company as of the Fundamental Change Repurchase Date, pursuant to the terms and conditions
specified in the Indenture.



Dated:                     




	 	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

Signature(s)
	 	 





NOTICE: The above signatures of the Holder(s) hereof must correspond with the name as written upon
the face of the Debentures in every particular without alteration or enlargement or any change
whatever.




Debentures Certificate Number (if applicable):                     




Principal amount to be repurchased

(if less than all, must be $1,000 or whole multiples of $1 thereof):                     




Social Security or Other Taxpayer Identification Number:                     





13









 








ASSIGNMENT




     For value received                                          hereby sell(s) assign(s) and transfer(s) unto
                                         (Please insert social security or other Taxpayer Identification Number of
assignee) the within Debentures, and hereby irrevocably constitutes and appoints
                                         attorney to transfer said Debentures on the books of the Company, with full
power of substitution in the premises.



     In connection with any transfer of the Debentures prior to the expiration of the holding
period applicable to sales thereof under Rule 144 without the requirement to be in compliance with
Rule 144(c)(1) under the Securities Act (or any successor provision) (other than any transfer
pursuant to a registration statement that has been declared effective under the Securities Act),
the undersigned confirms that such Debentures are being transferred:




	 	o	 	To Trico Marine Services, Inc. or a subsidiary thereof; or
	 
	 	o	 	To a “qualified institutional buyer” in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
	 
	 	o	 	Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as
amended; or
	 
	 	o	 	Pursuant to a Registration Statement which has been declared effective under the
Securities Act of 1933, as amended, and which continues to be effective at the time
of transfer.





     Unless one of the boxes is checked, the Trustee will refuse to register any of the Debentures
evidenced by this certificate in the name of any person other than the registered Holder thereof.



14









 





Dated:                     




	 	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Signature(s)	 	 
	 
	 	 	 	 
	 

	 	Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may
be determined by the Registrar in addition to, or
in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.	 	 
	 
	 	 	 	 
	 
	 

	 	 

Signature Guarantee
	 	 





NOTICE: The signature on this Assignment must correspond with the name as written upon the face of
the Debentures in every particular without alteration or enlargement or any change whatever.





15









 








SCHEDULE OF INCREASES AND DECREASES IN GLOBAL DEBENTURE*




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



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

	 	 
	 	 
	 	 
	 	 







 




			
	*	 	For Global Debentures only




 









 










EXHIBIT B




FORM OF RESTRICTIVE LEGEND FOR

COMMON STOCK ISSUED UPON CONVERSION1




     THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE BY ACQUISITION HEREOF. THE HOLDER
AGREES THAT (1) IT WILL NOT, PRIOR TO MAY 16, 2009,, RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY EXCEPT (A) TO TRICO MARINE SERVICES, INC. (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF, (B) TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER, OR (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT OF 1933 PROVIDED BY RULE 144 , IF AVAILABLE, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO
ANY SUCH TRANSFER, TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO THE COMPANY; AND (2) THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED PURSUANT TO CLAUSE 1(B) ABOVE A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.







 




			
	1	 	This legend should be included only if the Security is
a Transfer Restricted Security.




 









 






Annex A






     None



 









 





Schedule I




Collateral





	1.	 	Each of the following Mortgaged Vessels solely owned by Trico Marine Assets, Inc.:






	 	•	 	United States flag vessel Trico Moon, Official Number 1215615;
	 
	 	•	 	United States flag vessel Trico Mystic, Official Number 1212011;
	 
	 	•	 	Commonwealth of Dominica flag vessel Elm River, Official Number 50206;
	 
	 	•	 	Commonwealth of Dominica flag vessel Kings River, Official Number 50259; and
	 
	 	•	 	Commonwealth of Dominica flag vessel Big Blue River, Official Number 50322.






	2.	 	Insurance Collateral (as defined in the Assignments of Insurances) for each of the Mortgaged
Vessels.






	3.	 	Earnings Collateral (as defined in the Assignments of Earnings) for each of the Mortgaged
Vessels.






	4.	 	The Trico Supply Intercompany Loan Documentation (as defined in the Pledge Agreement).






	5.	 	The issued and outstanding equity interests in (i) Trico Marine Assets, Inc. and Trico Marine
Operators, Inc. and (ii) any other Domestic Subsidiary (as defined in the Pledge Agreement) at
any time owned, directly or indirectly, by the Issuer which owns, directly or indirectly,
interests in Trico Marine Assets, Inc. or Trico Marine Operators, Inc.