exv4w7






Exhibit 4.7




 





GULFMARK OFFSHORE, INC.




Issuer



 





 





INDENTURE




Dated as of                     



 





U.S. BANK NATIONAL ASSOCIATION




Trustee



 





 










 









 







CROSS-REFERENCE TABLE1




	 	 	 	 	 	 	 
	Trust Indenture	 	 	 
	   Act Section	 	Indenture Section
	 
	 	 	 	 	 	 
	310
	 	(a)(l)	 	 	7.10	 
	 
	 	(a)(2)	 	 	7.10	 
	 
	 	(a)(3)	 	 	N.A.	 
	 
	 	(a)(4)	 	 	N.A.	 
	 
	 	(a)(5)	 	 	7.10	 
	 
	 	(b)	 	 	7.10	 
	 
	 	(c)	 	 	N.A.	 
	311
	 	(a)	 	 	7.11	 
	 
	 	(b)	 	 	7.11	 
	 
	 	(c)	 	 	N.A.	 
	312
	 	(a)	 	 	2.05	 
	 
	 	(b)	 	 	12.03	 
	 
	 	(c)	 	 	12.03	 
	313
	 	(a)	 	 	7.06	 
	 
	 	(b)(2)	 	 	7.06, 7.07	 
	 
	 	(c)	 	 	7.06, 12.02	 
	 
	 	(d)	 	 	7.06	 
	314
	 	(a)	 	 	4.03, 12.02, 12.05	 
	 
	 	(a)(4)	 	 	4.03	 
	 
	 	(c)(1)	 	 	12.04	 
	 
	 	(c)(2)	 	 	12.04	 
	 
	 	(c)(3)	 	 	N.A.	 
	 
	 	(e)	 	 	12.05	 
	 
	 	(f)	 	 	N.A.	 
	315
	 	(a)	 	 	7.01	 
	 
	 	(b)	 	 	7.05	 
	 
	 	(c)	 	 	7.01	 
	 
	 	(d)	 	 	7.01	 
	 
	 	(e)	 	 	6.11	 
	316
	 	(a)(last sentence)	 	 	2.09	 
	 
	 	(a)(1)(A)	 	 	6.05	 
	 
	 	(a)(l)(B)	 	 	6.04	 
	 
	 	(a)(2)	 	 	N.A.	 
	 
	 	   (b)     	 	 	6.07	 
	 
	 	   (c)     	 	 	2.12	 
	 
	 	317 (a)(1)	 	 	6.08	 
	 
	 	(a)(2)	 	 	6.09	 
	 
	 	(b)	 	 	2.04	 
	
	 	318 (a)	 	 	12.01	 
	 
	 	(b)	 	 	12.01	 
	 
	 	(c)	 	 	12.01	 






NA. means not applicable.






 




			
	1	 	This Cross-Reference Table is not part of
this Indenture.





 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 

	ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE

	 	 	 
	 	 	 	 
	SECTION 1.01	 	Definitions
	 	 	2	 
	SECTION 1.02	 	Other Definitions
	 	 	19	 
	SECTION 1.03	 	Incorporation by Reference of Trust Indenture Act
	 	 	20	 
	SECTION 1.04	 	Rules of Construction
	 	 	20	 
	 	 	 
	 	 	 	 
	ARTICLE II. THE NOTES

	 	 	 
	 	 	 	 
	SECTION 2.01	 	Form and Dating
	 	 	21	 
	SECTION 2.02	 	Execution and Authentication
	 	 	21	 
	SECTION 2.03	 	Registrar and Paying Agent
	 	 	22	 
	SECTION 2.04	 	Paying Agent to Hold Money in Trust
	 	 	22	 
	SECTION 2.05	 	Holder Lists
	 	 	23	 
	SECTION 2.06	 	Transfer and Exchange
	 	 	23	 
	SECTION 2.07	 	Replacement Notes
	 	 	26	 
	SECTION 2.08	 	Outstanding Notes
	 	 	27	 
	SECTION 2.09	 	Treasury Notes
	 	 	27	 
	SECTION 2.10	 	Temporary Notes
	 	 	27	 
	SECTION 2.11	 	Cancellation
	 	 	28	 
	SECTION 2.12	 	Defaulted Interest
	 	 	28	 
	SECTION 2.13	 	CUSIP Numbers
	 	 	28	 
	 	 	 
	 	 	 	 
	ARTICLE III. REDEMPTION AND PREPAYMENT

	 	 	 
	 	 	 	 
	SECTION 3.01	 	Notices to Trustee
	 	 	28	 
	SECTION 3.02	 	Selection of Notes to be Redeemed
	 	 	29	 
	SECTION 3.03	 	Notice of Redemption
	 	 	29	 
	SECTION 3.04	 	Effect of Notice of Redemption
	 	 	30	 
	SECTION 3.05	 	Deposit of Redemption Price
	 	 	30	 
	SECTION 3.06	 	Notes Redeemed in Part
	 	 	31	 
	SECTION 3.07	 	Optional Redemption
	 	 	31	 
	SECTION 3.08	 	Mandatory Redemption
	 	 	32	 
	SECTION 3.09	 	Offer to Purchase by Application of Excess Proceeds
	 	 	32	 
	 	 	 
	 	 	 	 
	ARTICLE IV. COVENANTS

	 	 	 
	 	 	 	 
	SECTION 4.01	 	Payment of Notes
	 	 	33	 
	SECTION 4.02	 	Maintenance of Office or Agency
	 	 	34	 
	SECTION 4.03	 	Reports
	 	 	34	 
	SECTION 4.04	 	Compliance Certificate
	 	 	35	 
	SECTION 4.05	 	Taxes
	 	 	35	 
	SECTION 4.06	 	Waiver of Stay, Extension and Usury Laws
	 	 	35	 
	SECTION 4.07	 	Restricted Payments
	 	 	36	 
	SECTION 4.08	 	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	39	 






i 









 






	 	 	 	 	 	 	 

	SECTION 4.09	 	Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	40	 
	SECTION 4.10	 	Asset Sales
	 	 	43	 
	SECTION 4.11	 	Transactions with Affiliates
	 	 	44	 
	SECTION 4.12	 	Liens
	 	 	45	 
	SECTION 4.13	 	Business Activities
	 	 	45	 
	SECTION 4.14	 	Corporate Existence
	 	 	45	 
	SECTION 4.15	 	Offer to Repurchase upon Change of Control
	 	 	46	 
	SECTION 4.16	 	Subsidiary Guarantees of Certain Indebtedness
	 	 	47	 
	SECTION 4.17	 	Changes in Covenants When Notes Rated Investment Grade
	 	 	47	 
	 	 	 
	 	 	 	 
	ARTICLE V. SUCCESSORS

	 	 	 
	 	 	 	 
	SECTION 5.01	 	Merger, Consolidation, or Sale of Assets
	 	 	48	 
	SECTION 5.02	 	Successor Corporation Substituted
	 	 	48	 
	 	 	 
	 	 	 	 
	ARTICLE VI. DEFAULTS AND REMEDIES

	 	 	 
	 	 	 	 
	SECTION 6.01	 	Events of Default
	 	 	48	 
	SECTION 6.02	 	Acceleration
	 	 	50	 
	SECTION 6.03	 	Other Remedies
	 	 	51	 
	SECTION 6.04	 	Waiver of Past Defaults
	 	 	51	 
	SECTION 6.05	 	Control by Majority
	 	 	51	 
	SECTION 6.06	 	Limitation on Suits
	 	 	51	 
	SECTION 6.07	 	Rights of Holders of Notes to Receive Payment
	 	 	52	 
	SECTION 6.08	 	Collection Suit by Trustee
	 	 	52	 
	SECTION 6.09	 	Trustee May File Proofs of Claim
	 	 	52	 
	SECTION 6.10	 	Priorities
	 	 	53	 
	SECTION 6.11	 	Undertaking for Costs
	 	 	53	 
	 	 	 
	 	 	 	 
	ARTICLE VII. TRUSTEE

	 	 	 
	 	 	 	 
	SECTION 7.01	 	Duties of Trustee
	 	 	53	 
	SECTION 7.02	 	Rights of Trustee
	 	 	54	 
	SECTION 7.03	 	Individual Rights of Trustee
	 	 	55	 
	SECTION 7.04	 	Trustee’s Disclaimer
	 	 	55	 
	SECTION 7.05	 	Notice of Defaults
	 	 	55	 
	SECTION 7.06	 	Reports by Trustee to Holders of the Notes
	 	 	56	 
	SECTION 7.07	 	Compensation and Indemnity
	 	 	56	 
	SECTION 7.08	 	Replacement of Trustee
	 	 	57	 
	SECTION 7.09	 	Successor Trustee by Merger, Etc
	 	 	58	 
	SECTION 7.10	 	Eligibility, Disqualification
	 	 	58	 
	SECTION 7.11	 	Preferential Collection of Claims Against Company
	 	 	58	 
	 	 	 
	 	 	 	 
	ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 	 	 
	 	 	 	 
	SECTION 8.01	 	Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	58	 
	SECTION 8.02	 	Legal Defeasance and Discharge
	 	 	59	 
	SECTION 8.03	 	Covenant Defeasance
	 	 	59	 






ii 









 






	 	 	 	 	 	 	 

	SECTION 8.04	 	Conditions to Legal or Covenant Defeasance
	 	 	60	 
	SECTION 8.05	 	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
	 	 	61	 
	SECTION 8.06	 	Repayment to Company
	 	 	61	 
	SECTION 8.07	 	Reinstatement
	 	 	62	 
	 	 	 
	 	 	 	 
	ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER

	 	 	 
	 	 	 	 
	SECTION 9.01	 	Without Consent of Holders of Notes
	 	 	62	 
	SECTION 9.02	 	With Consent of Holders of Notes
	 	 	63	 
	SECTION 9.03	 	Compliance with Trust Indenture Act
	 	 	64	 
	SECTION 9.04	 	Revocation and Effect of Consents
	 	 	64	 
	SECTION 9.05	 	Notation on or Exchange of Notes
	 	 	65	 
	SECTION 9.06	 	Trustee to Sign Amendments, Etc
	 	 	65	 
	 	 	 
	 	 	 	 
	ARTICLE X. GUARANTEES

	 	 	 
	 	 	 	 
	SECTION 10.01	 	Subsidiary Guarantees
	 	 	65	 
	SECTION 10.02	 	Execution and Delivery of Subsidiary Guarantee
	 	 	66	 
	SECTION 10.03	 	Guarantors May Consolidate, Etc., on Certain Terms
	 	 	67	 
	SECTION 10.04	 	Releases Following Release Under All Indebtedness or Sale of Assets
	 	 	67	 
	SECTION 10.05	 	Limitation on Guarantor Liability; Contribution
	 	 	68	 
	SECTION 10.06	 	Trustee to Include Paying Agent
	 	 	68	 
	 	 	 
	 	 	 	 
	ARTICLE XI. SATISFACTION AND DISCHARGE

	 	 	 
	 	 	 	 
	SECTION 11.01	 	Satisfaction and Discharge
	 	 	69	 
	 	 	 
	 	 	 	 
	ARTICLE XII. MISCELLANEOUS

	 	 	 
	 	 	 	 
	SECTION 12.01	 	Trust Indenture Act Controls
	 	 	69	 
	SECTION 12.02	 	Notices
	 	 	69	 
	SECTION 12.03	 	Communication by Holders of Notes with Other Holders of Notes
	 	 	70	 
	SECTION 12.04	 	Certificate and Opinion as to Conditions Precedent
	 	 	70	 
	SECTION 12.05	 	Statements Required in Certificate or Opinion
	 	 	71	 
	SECTION 12.06	 	Rules by Trustee and Agents
	 	 	71	 
	SECTION 12.07	 	No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	71	 
	SECTION 12.08	 	Governing Law
	 	 	72	 
	SECTION 12.09	 	No Adverse Interpretation of Other Agreements
	 	 	72	 
	SECTION 12.10	 	Successors
	 	 	72	 
	SECTION 12.11	 	Severability
	 	 	72	 
	SECTION 12.12	 	Counterpart Originals
	 	 	72	 
	SECTION 12.13	 	Table of Contents, Headings, Etc
	 	 	72	 
	 	 	 
	 	 	 	 
	 	 	 
	 	 	 	 
	EXHIBIT A	 	Form of Note
	 	A-1	 	 
	EXHIBIT B	 	Form of Supplemental Indenture
	 	B-1	 	 






iii









 





          INDENTURE dated as of                      between GulfMark Offshore, Inc., a Delaware corporation
(the “Company”), and U.S. Bank National Association, a national banking association, as trustee
(the “Trustee”).




          The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders (as defined) of the                                          (the “Initial Notes”
and, together with the Initial Notes and any Additional Notes (as defined), the “Notes”):




ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE




     SECTION 1.01 Definitions.



          “Acquired Debt” means, with respect to any specified Person: (i) Indebtedness of any other
Person existing at the time such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person; or (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person; provided that, in each case, such Indebtedness was not incurred
in connection with, or in contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, or such encumbered asset being acquired by such
Person.




          “Additional Notes” means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Section 2.02 and 4.09 hereof.




          “Adjusted Net Assets” of a Guarantor at any date means the lesser of the amount by which (i)
the fair value of the property of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding liabilities under its
Subsidiary Guarantee, of such Guarantor at such date and (ii) the present fair salable value of the
assets of such Guarantor at such date exceeds the amount that will be required to pay the probable
liability of such Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any collection from any
Subsidiary of such Guarantor in respect of the obligations of such Subsidiary under such Subsidiary
Guarantee), excluding debt in respect of such Subsidiary Guarantee, as they become absolute and
matured.




          “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
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of Voting
Securities, by agreement or otherwise.




          “Agent” means any Registrar, Paying Agent or co-registrar.







2









 








          “Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of
(i) ___% of the principal amount of the Note; and (ii) the excess of (a) the present value at such
Redemption Date of (i) the redemption price of the Note at                      (such redemption price being
set forth in the table appearing in Section 3.07 hereof) plus (ii) all required interest payments
due on the Note through                      (excluding accrued but unpaid interest) computed using a
discount rate equal to the Treasury Rate as of such Redemption Date
plus ___ basis points; over
(b) the principal amount of the Note.




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




          “Asset Sale” means (i) the sale, lease, conveyance or other disposition of any assets or
rights (including, without limitation, by way of a sale-and-leaseback) other than in the ordinary
course of business consistent with past practices (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and its Restricted
Subsidiaries, taken as a whole, will be governed by the covenants described in Sections 4.15 and
5.01 hereof and not by the provisions of the covenant described in Section 4.10 hereof), and (ii)
the issue or sale by the Company or any of its Restricted Subsidiaries of Equity Interests of any
of the Company’s Restricted Subsidiaries, in the case of either clause (i) or (ii), whether in a
single transaction or a series of related transactions (a) that have a Fair Market Value in excess
of $                     or (b) for Net Proceeds in excess of $                    ; provided that the following
will not be deemed to be Asset Sales: (A) a transfer of assets by the Company to a Restricted
Subsidiary of the Company or by a Restricted Subsidiary of the Company to the Company or to another
Restricted Subsidiary of the Company; (B) an issuance or sale of Equity Interests by a Restricted
Subsidiary of the Company to the Company or to another Restricted Subsidiary of the Company; (C)
(x) a Permitted Investment or (y) a Restricted Payment that is permitted by the covenant described
in Section 4.07 hereof; (D) any disposition of assets resulting from the enforcement or foreclosure
of Liens permitted to be incurred under the covenant described in Section 4.12 hereof; (E) any
disposition of assets in trade or exchange for assets of comparable Fair Market Value related to
the Permitted Business of the Company, provided that (x) in any such trade or exchange with a Fair
Market Value in excess of $                    , the Company shall obtain an opinion or report from a
nationally recognized investment banking firm, appraisal firm or other valuation expert confirming
that the assets received by the Company and the Restricted Subsidiaries in such trade or exchange
have a fair market value of at least the fair market value of the assets so traded or exchanged and
(y) any cash or Cash Equivalent received by the Company or a Restricted Subsidiary in connection
with such trade or exchange (net of direct costs relating to such transaction) shall be treated as
Net Proceeds of an Asset Sale and shall be applied in the manner set forth in the covenant
described in Sections 3.09 and 4.10 hereof; (F) the sale or lease of equipment, inventory, accounts
receivable, services or other assets in the ordinary course of business or the sale of inventory to
any joint venture, in which the Company owns directly or indirectly at least 50% of the Equity
Interest, for resale by such joint venture to its customers in the ordinary course of business; (G)
the sale or disposition of cash or Cash Equivalents; (H) the sale of assets by the Company or any
of its Restricted Subsidiaries for the purpose of sale to a customer where the sale proceeds are
recorded in the Company’s consolidated financial statements as operating income in accordance with
generally accepted accounting principles in the United States; and (I) sales of damaged, worn-out
or obsolete






3









 







equipment or assets that, in the Company’s reasonable judgment, are either (x) no longer used
or (y) no longer useful in the business of the Company or its Restricted Subsidiaries.




          “Bankruptcy Code” means Title 11, U.S. Code, as amended, or any similar federal or state law
for the relief of debtors.




          “Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of such board of directors.




          “Business Day” means any day other than a Legal Holiday.




          “Capital Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at such time be required to be
capitalized on a balance sheet in accordance with GAAP.




          “Capital Stock” means (i) in the case of a corporation, corporate stock, (ii) in the case of
an association or business entity, any and all shares, interests, participation, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.




          “Cash Equivalents” means (i) United States dollars, (ii) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or instrumentality
thereof having maturities of not more than one year from the date of acquisition, (iii)
certificates of deposit and Eurodollar time deposits with maturities of not more than one year from
the date of acquisition, bankers’ acceptances with maturities of not more than one year from the
date of acquisition and overnight bank deposits, in each case with any domestic commercial bank
having capital and surplus in excess of $500,000,000 and a Thompson Bank Watch Rating of “B” or
better or any commercial bank organized under the laws of any other country that is a member of the
OECD and has total assets in excess of $500,000,000, (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses (ii) and (iii)
above entered into with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from Moody’s or S&P with
maturities of not more than one year from the date of acquisition, (vi) deposits available for
withdrawal on demand with any commercial bank not meeting the qualifications specified in clause
(iii) above, but which is organized under the laws of (a) any country that is a member of the OECD
and has total assets of $50,000,000 or (b) any other country in which the Company or any Restricted
Subsidiary maintains an office or is engaged in any Permitted Business, provided that, in either
case, (A) all such deposits are required to be made in such accounts in the ordinary course of
business, (B) such deposits do not exceed at any one time $2,000,000 in the aggregate and (C) no
funds so deposited remain on deposit in such bank for more than 30 days, and (vii) investments in
money market funds substantially all of whose assets comprise securities or deposits of the types
described in clauses (i) through (v) above.




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





4









 









               (i)      Change in Board of Directors Composition. Individuals who constitute the
members of the Board of Directors as of the date hereof (the “Incumbent Directors”), cease
for any reason to constitute at least a majority of members of the Board of Directors;
provided that any individual becoming a director of the Company subsequent to the date
hereof shall be considered an Incumbent Director if such individual’s appointment, election
or nomination was approved by a vote of at least 50% of the Incumbent Directors; provided
further that any such individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of members of the Board of
Directors or other actual or threatened solicitation of proxies or contests by or on behalf
of a “person” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act) other
than the Board of Directors, including by reason of agreement intended to avoid or settle
any such actual or threatened contest or solicitation, shall not be considered an Incumbent
Director;




               (ii)      Business Combination. Consummation of (a) a reorganization, merger,
consolidation, share exchange or other business combination involving the Company or any of
its Subsidiaries or the disposition of all or substantially all the assets of the Company,
whether in one or a series of related transactions, or (b) the acquisition of assets or
stock of another entity by the Company (either, a “Business Combination”), excluding,
however, any Business Combination pursuant to which: (A) individuals who were the
“beneficial owners” (as such term is defined in Rule 13d-3 under the Exchange Act),
respectively, of the then outstanding shares of common stock of the Company (the
“Outstanding Stock”) and the combined voting power of the then outstanding securities
entitled to vote generally in the election of directors of the Company (the “Outstanding
Company Voting Securities”) immediately prior to such Business Combination beneficially own,
upon consummation of such Business Combination, directly or indirectly, more than 50% of the
then outstanding shares of common stock (or similar securities or interests in the case of
an entity other than a corporation) and more than 50% of the combined voting power of the
then outstanding securities (or interests) entitled to vote generally in the election of
directors (or in the selection of any other similar governing body in the case of an entity
other than a corporation) of the Surviving Corporation (as defined below) in substantially
the same proportions as their ownership of the Outstanding Stock and Outstanding Company
Voting Securities, immediately prior to the consummation of such Business Combination (that
is, excluding any outstanding voting securities of the Surviving Corporation that such
beneficial owners hold immediately following the consummation of the Business Combination as
a result of their ownership prior to such consummation of voting securities of any company
or other entity involved in or forming part of such Business Combination other than the
Company); (B) no person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any of its Subsidiaries or any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any subsidiary of the
Company) or group (as such term is defined in Rule 13d-3 under the Exchange Act) becomes the
beneficial owner of 20% or more of either (x) the then outstanding shares of common stock
(or similar securities or interests in the case of entity other than a corporation) of the
Surviving Corporation, or (y) the combined voting power of the then outstanding securities
(or interests) entitled to vote generally in the election of directors (or in the selection
of any other similar governing body in the case of an entity



5









 







other than a corporation); and (C) individuals who were Incumbent Directors at the time
of the execution of the initial agreement or of the action of the Board providing for such
Business Combination constitute at least a majority of the members of the board of directors
(or of any similar governing body in the case of an entity other than a corporation) of the
Surviving Corporation; where for purposes of this subsection (b), the term “Surviving
Corporation” means the entity resulting from a Business Combination or, if such entity is a
direct or indirect Subsidiary of another entity, the entity that is the ultimate parent of
the entity resulting from such Business Combination;




          (iii)      Stock Acquisition. Any person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any of its Subsidiaries or any
trustee or other fiduciary holding securities under an employee benefit plan of the Company
or any Subsidiary of the Company) or group becomes the beneficial owner of 20% or more of
either (x) the Outstanding Stock or (y) the Outstanding Company Voting Securities; provided,
however, that for purposes of this subsection (iii), no Change of Control shall be deemed to
have occurred as a result of any acquisition directly from the Company; or




          (iv)      Liquidation. Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company (or, if no such approval is required, the
consummation of such a liquidation or dissolution).



          “Commission” means the U.S. Securities and Exchange Commission.




          “Consolidated Cash Flow” means, with respect to any Person for any period, the Consolidated
Net Income of such Person for such period, plus (i) an amount equal to any extraordinary, unusual
or non-recurring expenses or losses (including, whether or not otherwise includable as a separate
item in the statement of Consolidated Net Income for such period, losses on sales of assets outside
of the ordinary course of business) plus any net loss realized in connection with an Asset Sale (to
the extent such losses were deducted in computing such Consolidated Net Income), plus (ii)
provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for
such period, to the extent that such provision for taxes was included in computing such
Consolidated Net Income, plus (iii) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings,
and net payments (if any) pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv) depreciation and amortization
(including amortization of goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) of such Person and its Restricted Subsidiaries for
such period to the extent that such depreciation and amortization were deducted in computing such
Consolidated Net Income, plus (v) all extraordinary, unusual or non-recurring items of loss or
expense, minus (vi) all extraordinary, unusual or non-recurring items of gain or revenue, minus
(vii) non-cash items increasing such






6









 







Consolidated Net Income for such period, in each case, on a consolidated basis and determined
in accordance with GAAP. Notwithstanding the foregoing, the provision for taxes on the income or
profits of, and the depreciation and amortization and other non-cash charges of, a Restricted
Subsidiary of the referent Person shall be added to Consolidated Net Income to compute Consolidated
Cash Flow only to the extent (and in same proportion) that the Net Income of such Restricted
Subsidiary was included in calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior governmental approval (that has not been
obtained), and without direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Restricted Subsidiary or its stockholders.




          “Consolidated Net Income” means, with respect to any Person for any period, the aggregate of
the Net Income of such Person and its Restricted Subsidiaries (for such period, on a consolidated
basis, determined in accordance with GAAP); provided that (i) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Restricted Subsidiary, (ii) the Net Income (but not loss) of any
Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends
or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, (iii) the cumulative effect of a change in accounting principles
shall be excluded, and (iv) each of the following shall be excluded: (a) any increased
amortization, depreciation or cost of sales resulting from the write-up of assets pursuant to
Financial Accounting Standards Board Accounting Standards Codification Topic 105, Generally
Accepted Accounting Principles, (b) the amortization of any Intangible Assets (including
amortization attributable to goodwill and financing costs and including amortization of finance
costs relating to the issuance of the Notes), (c) any non-recurring charges relating to any premium
or penalty paid, write off of deferred financing costs or other financial recapitalization charges
in connection with redeeming or retiring any Indebtedness prior to or at its Stated Maturity, and
(d) any non-cash non-recurring charge arising out of the restructuring or consolidation of the
operations of any Persons or businesses either alone or together with such Person or any Restricted
Subsidiary of such Person.




          “Consolidated Tangible Assets” means, with respect to any Person as of any date, the amount
which, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like
caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries, less all
Intangible Assets, including, without limitation, goodwill, organization costs, patents,
trademarks, copyrights, franchises and research and development costs.




          “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 11.02 hereof or such other address as to which the Trustee may give notice to the Company.







7









 








          “Credit Agreement” means that certain (i) U.S. $25.0 Million Secured Reducing Revolving Loan
Facility Agreement, Dated June 1, 2006, as Amended and Restated by a First Supplemental Agreement
dated June 5, 2008, as amended through the Issue Date, by and between the Company and DnB NOR Bank
ASA as mandated lead arranger, agent and security trustee and others; and (ii) U.S. $200.0 Million
Facility Agreement dated December 17, 2009, as amended through the Issue Date, by and among
GulfMark Americas, Inc., as borrower, the Company, as guarantor, The Royal Bank of Scotland plc, as
arranger, as agent of the Finance Parties and as security trustee for the Secured Parties, and the
lenders that are parties thereto; including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith and in each case, as amended, restated,
modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or
refinanced (including by means of Debt Issuances) from time to time.




          “Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities or Debt Issuances, in each case with banks,
investment banks, insurance companies, mutual funds and/or other institutional lenders or
institutional investors providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose entities formed to
borrow from (or sell receivables to) such lenders against such receivables), letters of credit or
Debt Issuances, in each case, as amended, extended, renewed, restated, refinanced (including,
refinancing with Debt Issuances), supplemented or otherwise modified (in whole or in part, and
without limitation as to amount, terms, conditions, covenants and other provisions) from time to
time.




          “Currency Hedging Obligations” means, with respect to any Person, the net payment Obligations
of such Person under agreements or arrangements designed to protect such Person against
fluctuations in the currency exchange rates incurred or entered into in the ordinary course of its
business and not for speculative purposes.




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




          “Debt Issuances” means, with respect to the Company or any Restricted Subsidiary, one or more
issuances after the Issue Date of Indebtedness evidenced by notes, debentures, bonds or other
similar securities or instruments.




          “Default” means any event that is or with the passage of time or the giving of notice (or
both) would be an Event of Default.




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




          “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03 hereof as the Depositary with respect to the






8









 







Notes, and any and all successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.




          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the Holder thereof, in whole
or in part, on or prior to the date that is 91 days after the date on which the Notes mature,
except to the extent that such Capital Stock is solely redeemable with, or solely exchangeable for,
any Capital Stock of such Person that is not Disqualified Stock.




          “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).




          “Equity Offering” means any public or private sale or issuance by the Company of Capital Stock
(other than Disqualified Stock) of the Company made for cash on a primary basis after the Issue
Date or any contribution of cash to the Company after the Issue Date in respect of Capital Stock
(other than Disqualified Stock).




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




          “Fair Market Value” means, with respect to consideration received or to be received pursuant
to any transaction by any Person, the fair market value of such consideration as determined in good
faith by the Board of Directors of the Company.




          “Financial Hedging Obligations” means, with respect to any Person, the net payment Obligations
of such Person under (i) interest rate swap agreements, interest rate cap agreements and interest
rate collar agreements and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates incurred or entered into in the
ordinary course of its business and not for speculative purposes.




          “Fixed Charge Coverage Ratio” means with respect to any Person for any period, the ratio of
the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for
such period. In the event that the Company or any of its Restricted Subsidiaries incurs, assumes,
guarantees or redeems any Indebtedness (other than revolving credit borrowings under any Credit
Facility) or issues or redeems preferred stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated but on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such issuance or redemption of
preferred stock, as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on or prior to the
Calculation Date shall be deemed to have occurred on the first day






9









 







of the four-quarter reference period and Consolidated Cash Flow for such reference period
shall be calculated without giving effect to clause (iii) of the proviso set forth in the
definition of Consolidated Net Income, (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses disposed of prior
to the Calculation Date, shall be excluded, (iii) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses disposed of prior
to the Calculation Date, shall be excluded, but only to the extent that the obligations giving rise
to such Fixed Charges will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date and (iv) whenever pro forma effect is to be given to an
acquisition or disposition, the amount of income or earnings related thereto (including the
incurrence of any Indebtedness and any pro forma expense and cost reductions that have occurred or
are reasonably expected to occur, regardless of whether those expense and cost reductions could
then be reflected in pro forma financial statements in accordance with Regulation S-X as
promulgated by the Commission or any regulation or policy of the Commission related thereto) shall
be reasonably determined in good faith by one of the Company’s financial or accounting officers.




          “Fixed Charges” means, with respect to any Person for any period, the sum, without
duplication, of (i) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued (including, without limitation or
duplication, amortization of debt issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers’ acceptance financings, and net payments
(if any) pursuant to Hedging Obligations), (ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period, (iii) any interest expense on
Indebtedness of another Person that is guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries
(whether or not such guarantee or Lien is called upon), and (iv) all dividend payments, whether or
not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividend payments on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock), in each case, on a consolidated basis and in accordance with GAAP.




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants, Financial Accounting Standards Board Accounting Standards Codification and such other
statements by such other entities as have been approved by a significant segment of the accounting
profession, which are applicable on the Issue Date.




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




          “Global Notes” means, individually and collectively, each of the Global Notes substantially in
the form of Exhibit A hereto issued in accordance with Section 2.01 or 2.06 hereof.







10









 








          “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America the payment of which is guaranteed by the full faith and credit of the United
States.




          “Guarantee” means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof or pledging
assets to secure), of all or any part of any Indebtedness.




          “Guarantors” means (i) each of the Company’s Restricted Subsidiaries that becomes a guarantor
of the Notes in accordance with the provisions of Section 10.01 hereof and (ii) each of the
Company’s Restricted Subsidiaries executing a supplemental indenture in which such Restricted
Subsidiary agrees to be bound by the terms of this Indenture; provided that any Person constituting
a Guarantor as described above shall cease to constitute a Guarantor when its respective Subsidiary
Guarantee is released in accordance with the terms thereof.




          “Hedging Obligations” means, with respect to any Person, collectively, the Currency Hedging
Obligations of such Person and the Financial Hedging Obligations of such Person.




          “Holder” means a Person in whose name a Note is registered in the security register.




          “Indebtedness” means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect thereof) or banker’s
acceptances or representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP, as well as all Indebtedness
of others secured by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the guarantee by such Person of
any Indebtedness or any other liability, whether or not contingent, of any other Person, and
whether or not it appears on the balance sheet of such other Person. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof, in the case of any
Indebtedness that does not require current payments of interest, and (ii) the principal amount
thereof, together with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.




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




          “Independent Financial Advisor” means a nationally recognized accounting, appraisal or
investment banking firm that is, in the reasonable judgment of the Board of Directors, qualified to
perform the task for which such firm has been engaged hereunder and disinterested and independent
with respect to the Company and its Affiliates; provided that providing accounting, appraisal or
investment banking services to the Company or any of its Affiliates or having an employee, officer
or other representative serving as a member of the Board of Directors of the






11









 







Company or any of its Affiliates will not disqualify any firm from being an Independent
Financial Advisor.




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




          “Initial Notes” means the $                     in aggregate principal amount of the Notes initially
authenticated and delivered under this Indenture of the Issue Date.




          “Intangible Assets” means goodwill, patents, tradenames, trademarks, copyrights, franchises,
experimental expense, organization expenses and any other amounts classified as intangible assets
in accordance with GAAP.




          “Investments” means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the forms of direct or indirect loans (including guarantees of
Indebtedness or other Obligations), advances or capital contributions (excluding commission, travel
and entertainment, moving, and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company or any of its
Restricted Subsidiaries sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a direct or indirect Subsidiary of the Company, the Company,
or such Restricted Subsidiary, as the case may be, shall be deemed to have made an Investment on
the date of any such sale or disposition equal to the Fair Market Value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the
fourth paragraph of Section 4.07 hereof.




          “Issue Date” means                     .




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




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in any asset and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).




          “Moody’s” means Moody’s Investor Services, Inc. or any successor rating agency.




          “Net Income” means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however, (i) any gain (but not loss), together with any related provision for






12









 







taxes on such gain (but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale-and-leaseback transactions), or (b) the
disposition of any securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries and (ii)
any extraordinary or nonrecurring gain (but not loss), together with any related provision for
taxes on such extraordinary or nonrecurring gain (but not loss).




          “Net Proceeds” means the aggregate cash proceeds or Cash Equivalents received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation,
any cash received upon the sale or other disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting, investment banking and brokers fees, and sales and underwriting commissions) and
any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness secured by a Lien on
the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with GAAP.




          “Non-Recourse Indebtedness” means Indebtedness (i) as to which neither the Company nor any of
its Restricted Subsidiaries, (a) provides any guarantee or credit support of any kind (including
any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness)
or (b) is directly or indirectly liable (as a guarantor or otherwise), (ii) the incurrence of which
will not result in any recourse against any of the assets of the Company or its Restricted
Subsidiaries, and (iii) no default with respect to which (including any rights that the holders
thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare pursuant to the express terms governing such Indebtedness a
default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior
to its Stated Maturity.




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




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




          “Obligations” means any principal, premium (if any), interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization relating to the Company or
its Restricted Subsidiaries whether or not a claim for post-filing interest is allowed in such
proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement obligations,
damages, guarantees (including the Subsidiary Guarantees) and other liabilities or amounts payable
under the documentation governing any Indebtedness or in respect thereof.




          “OECD” means Organization for Economic Cooperation and Development.




          “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the






13









 







Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or
any Vice-President of such Person.




          “Officers’ Certificate” means a certificate signed by two officers, at least one of whom shall
be the principal executive officer, principal accounting officer or principal financial officer of
the Company, and delivered to the Trustee.




          “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 11.05 hereof. The counsel may be an employee of or
counsel to the Company or any Subsidiary of the Company.




          “Participant” means, with respect to DTC, a Person who has an account with DTC.




          “Permitted Business” means the lines of business conducted by the Company on the Issue Date
and businesses reasonably related or incidental thereto or which is a reasonable extension thereof.




          “Permitted Investments” means (a) any Investment in the Company or in a Restricted Subsidiary
of the Company; (b) any Investment in Cash Equivalents or deposit accounts maintained in the
ordinary course of business consistent with past practices; (c) any Investment by the Company or
any Restricted Subsidiary of the Company in a Person, if as a result of such Investment (i) such
Person becomes a Restricted Subsidiary of the Company or (ii) such Person is merged, consolidated
or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company; (d) any Restricted
Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was
made pursuant to and in compliance with the covenant described in Section 4.10 hereof; (e) any
acquisition of assets solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (f) any Investment received in settlement of debts, claims or
disputes owed to the Company or any Restricted Subsidiary of the Company that arose out of
transactions in the ordinary course of business; (g) any Investment received in connection with or
as a result of a bankruptcy, workout or reorganization of any Person; (h) advances and extensions
of credit in the nature of accounts receivable arising from the sale or lease of goods or services
or the licensing of property in the ordinary course of business; (i) other Investments by the
Company or any Restricted Subsidiary of the Company in any Person having an aggregate Fair Market
Value (measured as of the date each such Investment is made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant to this clause (i)
(net of returns of capital, dividends and interest paid on Investments and sales, liquidations and
redemptions of Investments), not to exceed 5% of Consolidated Tangible Assets; (j) Investments in
the form of intercompany Indebtedness or guarantees of Indebtedness of a Restricted Subsidiary of
the Company permitted under clauses (v) and (ix) of Section 4.09 hereof; (k) Investments arising in
connection with Financial Hedging Obligations or Currency Hedging Obligations that are incurred in
the ordinary course of business for the purpose of fixing or hedging currency or interest rate risk
(including with respect to any floating rate Indebtedness that is permitted by the terms of this
Indenture to be outstanding) in connection with the conduct of the business of the Company and its
Subsidiaries and not for speculative purposes; (l) guarantees (including Subsidiary Guarantees) of
Indebtedness permitted under Section 4.09 hereof; (m) payroll, travel and similar advances to cover
matters that are






14









 







expected at the time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business; (n) loans or advances made to
employees made in the ordinary course of business consistent with past practices of the Company or
such Restricted Subsidiary not to exceed $                     at any one time outstanding; and (o)
Investments in any Permitted Joint Venture having an aggregate Fair Market Value (measured on the
date each such Investment was made and without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to this clause (o) that are at the time
outstanding, not to exceed $                    .




          “Permitted Joint Venture” means any joint venture that the Company or any Restricted
Subsidiary is a party to that is engaged in a Permitted Business.




          “Permitted Liens” means (i) Liens in favor of the Company or any Restricted Subsidiary; (ii)
Liens on property of a Person existing at the time such Person is merged into or consolidated with
the Company or any Restricted Subsidiary of the Company; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to any assets other
than those of the Person merged into or consolidated with the Company; (iii) Liens on property
existing at the time of acquisition thereof by the Company or any Restricted Subsidiary of the
Company, provided that such Liens were in existence prior to the contemplation of such acquisition;
(iv) Liens existing on the Issue Date of this Indenture and any extensions or renewals thereof,
provided that such extension or renewal of such Liens does not extend to or cover any other
property or assets of the Company or any Restricted Subsidiary; (v) statutory Liens (other than any
Lien imposed by ERISA) or landlords’ and carriers’, warehouseman’s, mechanics’, suppliers’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business; (vi)
Liens for taxes, assessments, government charges or claims not yet due and payable or which are
being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted and if a reserve or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made therefor; (vii) Liens incurred or deposits made in the
ordinary course of business in connection with workers’ compensation, unemployment insurance and
other types of social security; (viii) Liens created or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a like nature incurred in the
ordinary course of business (exclusive of obligations for the payment of borrowed money); (ix)
easements, rights-of-way, licenses, covenants, reservations, restrictions and other similar charges
or encumbrances not interfering in any material respect with the business of the Company or any
Restricted Subsidiary incurred in the ordinary course of business; (x) any attachment or judgment
Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60
days after the expiration of any such stay; (xi) any other Liens imposed by operation of law which
do not materially affect the Company’s or any Guarantor’s ability to perform its obligations under
the Notes, the Subsidiary Guarantees and this Indenture; (xii) rights of banks to set off deposits
against debts owed to said bank; (xiii) Liens upon specific items of inventory or other goods and
proceeds of the Company or its Restricted Subsidiaries securing the Company’s or any Restricted
Subsidiary’s obligations in respect of bankers’ acceptances issued or created for the account of
any such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens securing reimbursement obligations with respect to letters of credit






15









 







which encumber documents and other property relating to such letters of credit and the
products and proceeds thereof entered into in the ordinary course of business consistent with past
practices; (xv) Liens to secure Purchase Money Indebtedness or other purchase money obligations
incurred for the purpose of financing all or a part of the purchase price or cost of construction
or improvement of property, plant or equipment used in the Permitted Business and acquired,
constructed or improved after the Issue Date, provided that (1) the principal amount of
Indebtedness secured by such Liens shall not exceed 100% of the lesser of cost or Fair Market Value
of the property or assets so acquired, constructed or improved plus transaction costs related
thereto, (2) such Liens shall not encumber any other property or assets of the Company or any
Restricted Subsidiary (other than the charters or other contracts relating solely to such property
or assets, and the proceeds therefrom and accessions and upgrades thereto) and (3) such Liens shall
attach to such property or assets within 270 days of the date of the completion of the construction
or acquisition of such property or assets; (xvi) Liens to secure any Permitted Refinancing
Indebtedness incurred to refinance any Indebtedness secured by any Lien referred to in the
foregoing clauses (ii), (iii), (iv) and (xv), provided, however, that such new Lien shall be
limited to all or part of the same property that secured the original Lien (provided that such
Liens may extend to after-acquired property, including any assets or Capital Stock of any
subsequently formed or acquired Subsidiary, if such original Lien included such property or assets
as collateral); (xvii) Liens in favor of customs and revenue authorities to secure payment of
customs duties in connection with the importation of goods in the ordinary course of business and
other similar Liens arising in the ordinary course of business; (xviii) leases or subleases granted
to third Persons in the ordinary course of business consistent with past practices not interfering
with the ordinary course of business of the Company or its Restricted Subsidiaries; (xix) deposits
made in the ordinary course of business to secure liability to insurance carriers, and Liens on the
proceeds of insurance granted to insurance carriers solely to secure the payment of financed
premiums; (xx) Liens in favor of a trustee under any indenture securing amounts due to the trustee
in connection with its services under such indenture; (xxi) Liens under licensing agreements for
use of intellectual property entered into in the ordinary course of business; (xxii) Liens incurred
in the ordinary course of business of the Company or any Restricted Subsidiary of the Company with
respect to obligations that do not exceed $                     at any one time outstanding and that (a) are
not incurred in connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of the property or materially impair the use thereof in the
operation of business by the Company or such Restricted Subsidiary; (xxiii) any attachment or
judgment Lien not constituting an Event of Default under clause (f) of the first paragraph of
Section 6.01 hereof; (xxiv) Liens securing Hedging Obligations related to Indebtedness permitted
under this Indenture; and (xxv) Liens of the Company and any Restricted Subsidiary securing
Indebtedness under Credit Facilities that are permitted by the terms of this Indenture.




          “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that: (i) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount of (or accreted value, if applicable), plus accrued and unpaid interest
on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or






16









 







refunded (plus the amount of all expenses and premiums incurred in connection therewith); (ii)
such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness
has a final maturity date later than the final maturity date of, and is subordinated in right of
payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in
the documentation governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by the Company or a Restricted
Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded. Notwithstanding the foregoing, any Indebtedness incurred under Credit
Facilities pursuant to Section 4.09 hereof shall be subject to the refinancing provisions of the
definition of Credit Facilities and not pursuant to the requirements set forth in this definition
of Permitted Refinancing Indebtedness.




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




          “Purchase Money Indebtedness” of a Person means any Indebtedness represented by Capital Lease
Obligations, mortgage or construction financings, purchase money obligations or Acquired Debt, in
each case incurred for the purpose of financing all or any part of the purchase price, acquisition
cost or cost of construction or improvement of property, plant or equipment used in the Permitted
Business of such Person and acquired, constructed or improved after the Issue Date.




          “Responsible Officer,” when used with respect to the Trustee, means any officer in the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer
of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to particular corporate trust matter, any other
officer or employee of the Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.




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




          “Restricted Subsidiary” of a Person means any Subsidiary of the referenced Person that is not
an Unrestricted Subsidiary; provided that, on the Issue Date, all Subsidiaries of the Company shall
be Restricted Subsidiaries of the Company.




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




          “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.,
or any successor rating agency.




          “Senior Indebtedness” means Indebtedness of the Company and its Restricted Subsidiaries, at
the time any determination is to be made, in an amount equal to the sum of: (1) all Indebtedness of
the Company and its Restricted Subsidiaries outstanding under Credit






17









 







Facilities and Hedging Obligations related thereto at such time; and (2) all other outstanding
Indebtedness of the Company or any of its Restricted Subsidiaries, unless the instrument under
which such Indebtedness is incurred expressly provides that such Indebtedness is subordinated to
the Notes or Subsidiary Guarantees, if applicable.




          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.




          “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.




          “Subordinated Indebtedness” means any Indebtedness of (i) the Company which is subordinated in
right of payment to the Notes or (ii) any Guarantor which is subordinated in right of payment to
such Guarantor’s Subsidiary Guarantee.




          “Subsidiary” means, with respect to any Person, (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person and (ii) any partnership (a) the sole general partner or the managing general
partner of which is such Person or an entity described in clause (i) and related to such Person or
(b) the only general partners of which are such Person or of one or more entities described in
clause (i) and related to such Person (or any combination thereof).




          “Subsidiary Guarantee” means the guarantee of the Notes by any Guarantors pursuant to Article
10 hereof pursuant to the execution and delivery of a supplemental indenture substantially in the
form of Exhibit B hereof entered into in accordance with Section 4.16 hereof.




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




          “Total Assets” of the Company means the Company’s and its Restricted Subsidiaries’ total
consolidated assets, as shown on the Company’s and its Restricted Subsidiaries’ most recent
consolidated balance sheet.




          “Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such Redemption
Date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available
at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most nearly equal to the
period from the Redemption Date to                     ; provided, however, that if the period from the
Redemption Date to                      is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year will be used.







18









 








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




          “Unrestricted Subsidiary” means any Subsidiary of the Company (including any newly acquired or
newly formed Subsidiary of the Company) that is designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a resolution of the Board of Directors as certified in an
Officers’ Certificate delivered to the Trustee, but only to the extent that such Subsidiary at the
time of designation and thereafter: (a) has no Indebtedness other than Non-Recourse Indebtedness;
(b) is not party to any agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company or such Restricted Subsidiary than those that
might be obtained, in light of all the circumstances, at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for additional
Equity Interests or (y) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results; (d) has not guaranteed or otherwise
directly or indirectly provided credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries; and (e) does not own any Capital Stock of or own or hold any Lien on any
property of, the Company or any Restricted Subsidiary of the Company.




          “Voting Securities” of any Person as of any date means the Capital Stock of such Person that
is at the time entitled to vote in the election of the board of directors of such Person.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing (i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment, by (ii) the then outstanding principal amount of such Indebtedness.




     SECTION 1.02 Other Definitions.



	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section
	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	4.10	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Payment Date”
	 	 	4.15	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 






19









 






	 	 	 	 	 
	“Excess Proceeds”
	 	 	4.10	 
	“Funding Guarantor”
	 	 	10.05	 
	“incur”
	 	 	4.09	 
	“Investment Grade Rating”
	 	 	4.17	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Payment Default”
	 	 	6.01	 
	“Permitted Debt”
	 	 	4.09	 
	“Purchase Date”
	 	 	3.09	 
	“Redemption Date”
	 	 	3.07	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 






     SECTION 1.03 Incorporation by Reference of Trust Indenture Act.



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




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




          “indenture securities” means the Notes;




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




          “indenture to be qualified” means this Indenture;




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




          “obligor” on the Notes means the Company and any successor obligor upon the Notes.




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




     SECTION 1.04 Rules of Construction.



          Unless the context otherwise requires:




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




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




          (3)      “or” is not exclusive;




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







20









 








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




          (6)      provisions apply to successive events and transactions; and




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




ARTICLE II.

THE NOTES




     SECTION 2.01 Form and Dating.



          a. General. The Notes and the Trustee’s certificate of authentication shall be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The
Notes shall be in denominations of $1,000 and integral multiples thereof. The Notes shall be
issued on the Issue Date only against payment in immediately available funds. Subject to Section
4.16, the Notes may bear notations of Subsidiary Guarantees.




          The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.




          b. Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend and the “Schedule of Exchanges of Interests in
the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it represents the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee, the Depositary or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.




          c. Definitive Notes. Notes issued as Definitive Notes shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached hereto).




     SECTION 2.02 Execution and Authentication.



          At least one Officer shall sign the Notes for the Company by manual or facsimile signature.







21









 








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




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




          The Trustee shall, upon a written order of the Company signed by two Officers (an
“Authentication Order”), authenticate Notes for (i) original issue up to the aggregate principal
amount stated in paragraph 4 of the Notes and (ii) Additional Notes in such amounts as may be
specified from time to time, without limit as to the aggregate principal amount, in one or more
series having identical terms and conditions to the Initial Notes, other than with respect to the
date of issuance and issue price, subject to compliance with Section 4.09 hereof.




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




     SECTION 2.03 Registrar and Paying Agent.



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




          The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.




          The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Note Custodian with respect to the Global Notes.




     SECTION 2.04 Paying Agent to Hold Money in Trust.



          The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium or interest on the Notes, and shall notify the
Trustee in writing of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the






22









 







Company or a Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.




     SECTION 2.05 Holder Lists.



          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish to a Responsible Officer
of the Trustee at least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of Notes and the Company shall
otherwise comply with T1A § 312(a).




     SECTION 2.06 Transfer and Exchange.



               (a)      Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes shall be
exchanged by the Company for Definitive Notes if (i) the Company delivers to the Trustee written
notice from the Depositary that it is unwilling or unable to continue to act as Depositary for the
Global Notes or that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120 days after the date
of such notice from the Depositary, or (ii) the Company in its sole discretion determines that
Global Notes should be exchanged for Definitive Notes and delivers a written notice to such effect
to the Trustee, or there has occurred and is continuing a Default or Event of Default with respect
to the Notes. Upon the occurrence of either of the preceding events in clause (i) or (ii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee.
Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) hereof.



               (b)      Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of
beneficial interests in the Global Notes also shall require compliance with either subparagraph (i)
or (ii) below, as applicable, as well as one or more of the other following subparagraphs as
applicable:



23









 






               (i)      Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in a Global Note. No written orders or instructions shall be required
to be delivered to the Registrar to effect the transfers described in this Section
2.06(b)(i).




               (ii)      All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar either (A) both (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another Global Note in
an amount equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or (B) both (1) a
written order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in clause (i) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(e)
hereof.



               (c)      Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(c), the
Registrar shall register the transfer or exchange of Definitive Notes and deliver such Definitive
Notes to the Person specified in the written instruction of transfer received for such transfer or
exchange. Prior to such registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by
its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required pursuant to the
following provisions of this Section 2.06(c).



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


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE






24









 







BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF GULFMARK
OFFSHORE, INC.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), 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 MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.”




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



               (f)      General Provisions Relating to Transfers and Exchanges.




               (i)      To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.




               (ii)      No service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or



25









 







exchange, but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 4.10, 4.15 and 9.05 hereof).




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




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




          (v)      Neither the Registrar nor the Company will be required:




             (A)      to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection, (B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part, or (C) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest payment date.




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




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




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



     SECTION 2.07 Replacement Notes.



           If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any






26









 







authenticating agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge for its expenses in replacing a Note.




          Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.




     SECTION 2.08 Outstanding Notes.



          The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.




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




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




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




     SECTION 2.09 Treasury Notes.



          In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, shall be considered as though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded.




     SECTION 2.10 Temporary Notes.



          Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Definitive Notes in exchange for temporary Notes.




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







27









 








     SECTION 2.11 Cancellation.



          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all cancelled Notes will be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.




     SECTION 2.12 Defaulted Interest.



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




     SECTION 2.13 CUSIP Numbers.



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




ARTICLE III.

REDEMPTION AND PREPAYMENT




     SECTION 3.01 Notices to Trustee.



          If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers’ Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount
of Notes to be redeemed and (iv) the redemption price.







28









 








     SECTION 3.02 Selection of Notes to be Redeemed.



          If less than all of the Notes are to be redeemed at any time, selection of Notes for
redemption shall be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed, or, if the Notes are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and
appropriate; provided that no Notes of $1,000 or less shall be redeemed in part. In the event of
partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.




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




     SECTION 3.03 Notice of Redemption.



          Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days
before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address.




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




               (a)      the redemption date;



               (b)      the redemption price;



               (c)      if less than all of the Notes are to be redeemed, the identification of the particular
Notes to be redeemed;



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



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



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



               (g)      that on the redemption date and, if applicable, upon the satisfaction of any conditions to
such redemption set forth in such notice of redemption, the redemption price will become due and
payable upon each such Note or portion thereof, and that, unless the Company



29









 




defaults in making such redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;




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



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



          In addition, if such redemption is subject to satisfaction of one or more conditions
precedent, such notice of redemption shall describe each such condition, and if applicable, shall
state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any
or all such conditions shall be satisfied, or such redemption may not occur and such notice may be
rescinded in the event that any or all such conditions shall not have been satisfied by the
Redemption Date as stated in such notice, or by the Redemption Date as so delayed.




          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 35 days prior to the redemption date (unless a shorter period is acceptable to the
Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in the preceding paragraph.




     SECTION 3.04 Effect of Notice of Redemption.



          Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price,
subject to the satisfaction of any conditions precedent provided in such notice.




     SECTION 3.05 Deposit of Redemption Price.



          No later than 10:00 a.m. New York City Time on the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.




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







30









 








     SECTION 3.06 Notes Redeemed in Part.



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




     SECTION 3.07 Optional Redemption.



                    (a)      Except as set forth in clause (b) of this Section 3.07, the Notes shall not be redeemable
at the Company’s option prior to                     . Thereafter, the Notes will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60
days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on ___of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	_____
	 	            	%	 
	_____
	 	            	%	 
	_____
	 	            	%	 
	_____ and thereafter
	 	            	%	 






                    (b)      Notwithstanding the foregoing, at any time prior to                     , the Company may also
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice mailed
by first class mail to each Holder’s registered address, at a redemption price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest to, the date of redemption (the “Redemption Date”).



                    (c)      In addition, at any time prior to                     , the Company may on any one or more occasions
redeem up to an aggregate of 35% of the principal amount of Notes (including any Additional Notes)
outstanding at a redemption price of ___% of the principal amount thereof, plus accrued and
unpaid interest, if any, thereon, to the redemption date, with the net cash proceeds of any one or
more Equity Offerings; provided that at least 65% of the aggregate principal amount of Notes
outstanding on the Issue Date remain outstanding immediately after each occurrence of such
redemption; and provided, further, that each such redemption shall occur within 120 days of the
date of the closing of such Equity Offering.



                    (d)      Notice of any redemption upon an Equity Offering may be given prior to the completion of
the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be
subject to one or more conditions precedent, including, but not limited to completion of the
related Equity Offering.



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



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     SECTION 3.08 Mandatory Redemption.



          Except as set forth under Sections 3.09, 4.10 and 4.15 hereof, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to the Notes.




     SECTION 3.09 Offer to Purchase by Application of Excess Proceeds.



          In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence
an Asset Sale Offer (as defined in Section 4.10 hereof), it shall follow the procedures specified
below.




          The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Purchase Date”), the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes
so purchased shall be made in the same manner as interest payments are made.




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




          Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a
notice to the Trustee and each of the Holders. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the
Asset Sale Offer, shall state:




                    (a)      that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10
hereof and the length of time the Asset Sale Offer shall remain open;



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



                    (c)      that any Note not tendered or accepted for payment shall continue to accrete or accrue
interest;



                    (d)      that, unless the Company defaults in making such payment, any Note accepted for payment
pursuant to the Asset Sale Offer shall cease to accrete or accrue interest after the Purchase Date;



32









 





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



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



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



                    (h)      that, if the aggregate principal amount of Notes surrendered by Holders thereof exceeds
the Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and



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



          On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment,
on a pro rata basis to, the extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes
or portions thereof were accepted for payment by the Company in accordance with the terms of this
Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company shall authenticate and mail or deliver (or cause to
be transferred by book entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly announce the results of
the Asset Sale Offer on the Purchase Date.




          Other than as specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.




ARTICLE IV.

COVENANTS




     SECTION 4.01 Payment of Notes.



33









 





          The Company shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company or
a Subsidiary thereof, holds as of 10:00 a.m. New York City Time on the due date money deposited by
the Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due. The Company shall pay interest (including post-petition
interest in any proceeding under the Bankruptcy Code) on overdue principal at the rate borne on the
Notes to the extent lawful; it shall pay interest (including post-petition interest in any
proceeding under the Bankruptcy Code) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.




     SECTION 4.02 Maintenance of Office or Agency.



          The Company shall maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee.




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




          The Company hereby designates the Corporate Trust Services office of U.S. Bank Trust National
Association, an Affiliate of the Trustee, located at the date hereof at 100 Wall Street, Suite
1600, New York, New York, 10005, as one such office or agency of the Company in accordance with
Section 2.03 hereof.




     SECTION 4.03 Reports.



               (a)      Whether or not required by the rules and regulations of the Commission, so long as any
Notes are outstanding, the Company shall furnish to each of the Holders of Notes within the time
periods specified in the Commission’s rules and regulations all quarterly and annual financial
information that would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such financial information, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the
annual information only, reports thereon by the Company’s independent public accountants (which
shall be firm(s) of established national






34









 







reputation). In addition, whether or not required by the rules and regulations of the
Commission, the Company shall file a copy of all such information and reports with the Commission
for public availability and make such information available to securities analysts and prospective
investors upon request. The Company shall at all times comply with TIA § 314(a).




               (b)      The Company shall be deemed to have furnished such reports to the Trustee and Holders of
the Notes in accordance with Section 4.03(a) hereof if it has filed such reports with the
Commission via the EDGAR filing system and such reports are publicly available.




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




     SECTION 4.04 Compliance Certificate.



               (a)      The Company shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of, or interest on the
Notes is prohibited or if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto.




               (b)      The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.




     SECTION 4.05 Taxes.



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




     SECTION 4.06 Waiver of Stay, Extension and Usury Laws.



35









 





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




     SECTION 4.07 Restricted Payments.



          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company) or to
the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests in their capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value (including without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company; (iii) make any payment on
or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any
Subordinated Indebtedness of the Company or any Guarantor, except (x) a payment of interest or
principal at Stated Maturity and (y) intercompany Indebtedness between the Company and any of its
Restricted Subsidiaries; or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted
Payments”), unless, at the time of and after giving effect to such Restricted Payment:




                    (a)      no Default or Event of Default shall have occurred and be continuing or would occur as a
consequence thereof;



                    (b)      the Company would, at the time of such Restricted Payment and after giving pro forma
effect thereto as if such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09
hereof; and



                    (c)      such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company or any of its Restricted Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) or (ix) of the
next succeeding paragraph), is less than the sum of (i)                     % of the Consolidated Net Income
of the Company for the period (taken as one accounting period) from                      to the end of the
Company’s most recently ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net proceeds received by the
Company (including the Fair Market Value of non-



36









 







cash proceeds less issuance costs) from the issue or sale, in either case, since                      of
(A) Equity Interests of the Company (other than Disqualified Stock), or (B) Disqualified Stock or
debt securities of the Company that have been converted into such Equity Interests (other than
Equity Interests (or Disqualified Stock or convertible or exchangeable debt securities) sold to a
Restricted Subsidiary of the Company and other than Disqualified Stock or debt securities that have
been converted or exchanged into Disqualified Stock), plus (iii) in case any Unrestricted
Subsidiary has been redesignated a Restricted Subsidiary pursuant to the terms of this Indenture or
has been merged, consolidated or amalgamated with or into, or transfers or conveys assets to or is
liquidated into, the Company or a Restricted Subsidiary and provided that no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence thereof, the lesser
of (A) the book value (determined in accordance with GAAP) at the date of such redesignation,
combination or transfer of the aggregate Investments made by the Company and its Restricted
Subsidiaries in such Unrestricted Subsidiary (or of the assets transferred or conveyed, as
applicable) and (B) the Fair Market Value of such Investment in such Unrestricted Subsidiary at the
time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as
applicable), in each case as determined in good faith by the Board of Directors of the Company,
whose determination shall be conclusive and evidenced by a resolution of such Board of Directors
and, in each case, after deducting any Indebtedness associated with the Unrestricted Subsidiary so
designated or combined or with the assets so transferred or conveyed, plus (iv) to the extent not
already included in Consolidated Net Income for such period, without duplication, any Restricted
Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid
for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment
(less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment.




          The foregoing provisions shall not prohibit: (i) the payment of any dividend or consummation
of any irrevocable redemption of debt within 60 days after the date of declaration of the dividend
or giving of any such redemption notice, as the case may be, if at the date of declaration or
notice, such payment would have complied with the provisions of this Indenture; (ii) the
redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated
Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests
of the Company (other than any Disqualified Stock); provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iii) the defeasance,
redemption, repurchase or other acquisition of Subordinated Indebtedness with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend or
distribution by a Restricted Subsidiary of the Company to the holders of its common Equity
Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held
by any employee or director of the Company (or any of its Subsidiaries), or any former employee or
director of the Company (or any of its Subsidiaries) issued pursuant to any management equity plan
or stock option plan or any other management or employee benefit plan, agreement or trust;
provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests pursuant to this clause (v) shall not exceed $                     in any
twelve-month period; (vi) the declaration and payment of dividends to holders of any class or
series of Disqualified Stock of the Company






37









 







issued in accordance with the terms of this Indenture to the extent such dividends are
included in the definition of “Fixed Charges”; (vii) repurchases of Equity Interests deemed to
occur upon the cashless exercise of stock options; (viii) reasonable and customary directors’ fees
to the members of the Company’s Board of Directors, provided that such fees are consistent with
past practice; and (ix) other Restricted Payments since the Issue Date in an aggregate amount not
to exceed $                    , provided that, with respect to clauses (ii), (iii), (v), (vi), (vii) and
(ix) above, no Default or Event of Default shall have occurred and be continuing immediately after
such transaction.




          In determining whether any Restricted Payment is permitted by the foregoing covenant, the
Company may allocate or reallocate all or any portion of such Restricted Payment among the clauses
(i) through (ix) of the preceding paragraph or among such clauses and the first paragraph of this
covenant including clauses (a), (b) and (c), provided that at the time of such allocation or
reallocation, all such Restricted Payments, or allocated portions thereof, would be permitted under
the various provisions of the foregoing covenant.




          The amount of all Restricted Payments (other than cash) shall be the Fair Market Value (as
evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’
Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as
the case may be, pursuant to the Restricted Payment, such determination to be based upon an opinion
or appraisal by an Independent Financial Advisor if the Fair Market Value of any Restricted Payment
is greater than $                    . Not later than (i) the end of any calendar quarter in which any
Restricted Payment is made or (ii) the making of a Restricted Payment which, when added to the sum
of all previous Restricted Payments made in a calendar quarter, would cause the aggregate of all
Restricted Payments made in such quarter to exceed $                    , the Company shall deliver to the
Trustee an Officers’ Certificate stating that such Restricted Payment is permitted and setting
forth the basis upon which the calculations required by this covenant were computed, which
calculations may be based upon the Company’s latest available financial statements.




          The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary only if (i) immediately after giving effect to such designation, the Company is able to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in the first paragraph of Section 4.09, (ii) immediately before and immediately after
giving effect to such designation, no Default or Event of Default shall have occurred and be
continuing and (iii) the Company certifies that such designation complies with this covenant. Any
such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the resolution giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing provisions.




          For purposes of making the determination as to whether such designation would cause a Default
or Event of Default, all outstanding Investments by the Company and its Restricted Subsidiaries
(except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be
Restricted Payments at the time of such designation and will reduce the amount available for
Restricted Payments under the first paragraph of this covenant. All such outstanding Investments
will be deemed to constitute Investments in an amount equal to the greatest of (i) the






38









 







net book value (determined in accordance with GAAP) of such Investments at the time of such
designation, (ii) the Fair Market Value of such Investments at the time of such designation and
(iii) the original Fair Market Value of such Investments at the time they were made. Such
designation will only be permitted if such Restricted Payment would be permitted at such time and
if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.




          Any such designation by the Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Board of Directors of the Company giving
effect to such designation and an Officers’ Certificate certifying that such designation complied
with the foregoing conditions.




          Notwithstanding the foregoing, if, at any time, any Unrestricted Subsidiary would fail to meet
the requirements under the definition of Unrestricted Subsidiary, it shall thereafter cease to be
an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred as of such date.




     SECTION 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.



          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company or the Company to (i)(x) pay
dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1)
on its Capital Stock or (2) with respect to any other interest or participation in, or measured by,
its profits; provided that the priority of any preferred stock in receiving dividends or
liquidating distributions prior to dividends or liquidating distributions being paid on Capital
Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock, or
(y) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries, (ii) make loans
or advances to the Company or any of its Restricted Subsidiaries or (iii) transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of: (a) Indebtedness outstanding on the
Issue Date; (b) this Indenture and the Notes; (c) the Credit Facilities as in effect on the Issue
Date and any future Liens that may be permitted to be granted under any other provisions of this
Indenture; (d) applicable law or any applicable rule, regulation or order of any court or
governmental authority; (e) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except with respect to Indebtedness incurred in connection with or in contemplation of
such acquisition), which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property or assets of the Person
or such Person’s subsidiaries, so acquired, provided that in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred; (f) restrictions of the
nature described in clause (iii) above by reason of customary non-assignment provisions in
contracts, agreements, and leases entered into in the ordinary course of business and consistent
with past practices; (g) purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) above on the property so
acquired; (h) any restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all of the Capital Stock
or






39









 







assets of such Restricted Subsidiary pending the closing of such sale or disposition; (i)
agreements relating to secured Indebtedness otherwise permitted to be incurred pursuant to Sections
4.09 and 4.12 hereof that limit the right of the debtor to dispose of assets securing such
Indebtedness; (j) Permitted Refinancing Indebtedness in respect of Indebtedness referred to in
clauses (a), (b), (c), (e) and (g) of this paragraph, provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are no more restrictive than those
contained in the agreements governing the Indebtedness being refinanced; (k) any encumbrance or
restriction contained in contracts for sales of assets or Capital Stock of a Restricted Subsidiary
permitted under Section 4.10 with respect to the assets or Capital Stock of a Restricted Subsidiary
to be sold pursuant to such contract; (l) encumbrances or restrictions contained in agreements
entered into in connection with Hedging Obligations permitted from time to time under this
Indenture; (m) any encumbrance or restriction existing under any agreement that extends, renews,
refinances or replaces the agreements containing the encumbrances or restrictions in the foregoing
clauses (a) and (e), provided that the terms and conditions of any such encumbrances or
restrictions are not materially more restrictive than those contained in such agreement; and (n)
provisions with respect to the disposition or distribution of assets or property in joint venture
agreements, asset sale agreements, sale leaseback agreements, stock sale agreements and other
similar agreements entered into in the ordinary course of business.




                    Nothing contained in this Section 4.08 shall prevent the Company or its Restricted
Subsidiaries from creating, incurring, assuming or suffering to exist any Liens permitted by this
Indenture or entering into agreements in connection therewith that impose restrictions on the
transfer or disposition of the property or assets subject to such Liens.




     SECTION 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.



          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt) and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that (a) the Company and any Guarantor may incur Indebtedness (including Acquired Debt),
(b) the Company may issue shares of Disqualified Stock or (c) a Restricted Subsidiary may incur
Acquired Debt, if, in each case, the Company’s Fixed Charge Coverage Ratio for the Company’s most
recently ended four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least                      to 1.0, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at
the beginning of such four-quarter period.




          The provisions of the first paragraph of this covenant shall not apply to the incurrence of
any of the following items of indebtedness (collectively, “Permitted Debt”):





               (i)      the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness and letters of credit pursuant to one or more



40









 







Credit Facilities (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company thereunder) in an aggregate principal
amount at any one time outstanding under this clause (i) not to exceed the greater of
$                                         or                     % of Consolidated Tangible Assets;




          (ii)      the incurrence by the Company and the Guarantors of Indebtedness represented by
the Notes (but not Additional Notes) and the Subsidiary Guarantees;




          (iii)      Indebtedness outstanding on the Issue Date;




          (iv)      the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund, Indebtedness that was permitted by this
Indenture to be incurred;




          (v)      the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided,
however, that (i) if the Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness is expressly subordinate to the payment in full of all Obligations with respect
to the Notes and (ii) (A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be;




          (vi)      the incurrence by the Company or any of its Restricted Subsidiaries of Purchase
Money Indebtedness (or Capital Lease Obligations), including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace Purchase Money Indebtedness incurred
pursuant to this clause (vi);




          (vii)      the incurrence by the Company or any of its Restricted Subsidiaries of
obligations in the ordinary course of business under (A) trade letters of credit which are
to be repaid in full not more than one year after the date on which such Indebtedness is
originally incurred to finance the purchase of goods by the Company or a Restricted
Subsidiary of the Company; (B) standby letters of credit issued for the purpose of
supporting (1) workers’ compensation liabilities of the Company or any of its Restricted
Subsidiaries, or (2) performance, payment, deposit or surety obligations of the Company or
any of its Restricted Subsidiaries; and (C) bid, advance payment and performance bonds and
surety bonds of the Company and its Restricted Subsidiaries, and refinancings thereof;




          (viii)      the incurrence by the Company or any of its Restricted Subsidiaries of (x)
Financial Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk (including with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding), and (y) Currency Hedging
Obligations in connection with the conduct of the Permitted Business



41









 







in currencies other than the United States Dollar, and, in the case of clauses (x) and
(y) not for speculative purposes and incurred in the ordinary course of business consistent
with prudent business practices;




          (ix)      the guarantee by the Company or any Restricted Subsidiary of the Company of
Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to
be incurred by another provision of this covenant; provided that the guarantee of any
Indebtedness under this clause (ix) by a Restricted Subsidiary of the Company that ceases to
be a Restricted Subsidiary shall be deemed a Restricted Investment at the time such
Restricted Subsidiary’s status terminates in an amount equal to the maximum principal amount
so guaranteed, for so long as, and to the extent that, such guarantee remains outstanding;




          (x)      the issuance by a Restricted Subsidiary of the Company of preferred stock to the
Company or to any of its Restricted Subsidiaries; provided, however, that any subsequent
event or issuance or transfer of any Equity Interests that results in the owner of such
preferred stock ceasing to be the Company or any of its Restricted Subsidiaries or any
subsequent transfer of such preferred stock to a Person, other than the Company or one of
its Restricted Subsidiaries, shall be deemed to be an issuance of preferred stock by such
Subsidiary that was not permitted by this clause (x);




          (xi)      the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days;




          (xii)      the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness consisting of guarantees, indemnities, holdbacks or obligations in respect of
purchase price adjustments in connection with the acquisition or disposition of any
business, assets or Capital Stock of the Company or any Restricted Subsidiary; provided that
such Indebtedness is not reflected on the balance sheet of the Company or any Restricted
Subsidiary;




          (xiii)      the accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this
covenant; provided, in each case, that the amount thereof is included in Fixed Charges of
the Company as accrued; and




          (xiv)      the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph)
in an aggregate principal amount (or accreted value, as applicable) at any time outstanding
not to exceed $                    .



42









 





          For purposes of determining compliance with this covenant, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in
clauses (i) through (xiv) above or is entitled to be incurred pursuant to the first paragraph of
this covenant, the Company may, in its sole discretion, divide and classify such item of
Indebtedness at the time of incurrence or later classify, reclassify or divide such item of
Indebtedness in any manner that complies with this covenant and such item of Indebtedness shall be
treated as having been incurred pursuant to only one of such clauses or pursuant to the first
paragraph hereof. Accrual of interest, the accretion of accreted value and the payment of interest
in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for
purposes of this covenant. In addition, the maximum amount of Indebtedness that the Company and
its Restricted Subsidiaries may incur pursuant to this covenant will not be deemed to be exceeded,
with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the
exchange rates of currencies.




     SECTION 4.10 Asset Sales.



          The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in an
Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets
or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash
or Cash Equivalents; provided that, for purposes of this provision, the amount of each of the
following shall be deemed to be cash: (a) any liabilities (as shown on the Company’s or such
Restricted Subsidiary’s most recent balance sheet), of the Company or any Restricted Subsidiary of
the Company (other than contingent liabilities and liabilities that are by their terms subordinated
to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary
from further liability; (b) any securities, notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash received) within 270 days of the
consummation of such Asset Sale; (c) any Capital Stock or assets of the kind referred to in clauses
(b), (c) or (d) of the last paragraph of this Section 4.10; and (d) accounts receivables of a
business retained by the Company of any of its Restricted Subsidiaries following the sale of such
business; provided that (i) such accounts receivables are not more than 60 days past due and (ii)
do not have a payment date greater than 90 days from the date of the invoice creating such accounts
receivable.




          Any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by
deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Permitted
Lien or exercise by the related lienholder of rights with respect thereto, including by deed or
assignment in lieu of foreclosure shall not be required to satisfy the conditions set forth in
clauses (i) and (ii) of the first paragraph of this Section 4.10.




          Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such
Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option, (a) to repay
Indebtedness for borrowed money other than Subordinated Indebtedness, (b) to acquire a controlling
interest in another business or all or substantially all of the assets of a business,






43









 







engaged in a Permitted Business, (c) to make capital expenditures in a Permitted Business or
(d) to acquire other long-term assets that are used or useful in a Permitted Business, provided
that the Company or such Restricted Subsidiary will have complied with clause (b), (c) or (d) if,
within 365 days of such Asset Sale, the Company or such Restricted Subsidiary shall have commenced
and not completed or abandoned an investment in compliance with clause (b), (c) or (d) and such
Investment is substantially completed within 120 days after the first anniversary of such Asset
Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce
Indebtedness under any Credit Facility or otherwise invest such Net Proceeds in any manner that is
not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the first sentence of this paragraph shall be deemed to constitute “Excess
Proceeds.” When the aggregate amount of Excess Proceeds exceeds $                    , the Company shall be
required to make an offer to all Holders of Notes and other Indebtedness that ranks by its terms
pari passu in right of payment with the Notes and the terms of which contain substantially similar
requirements with respect to the application of net proceeds from Asset Sales as are contained in
this Indenture (an “Asset Sale Offer”) to purchase on a pro rata basis the maximum principal amount
of the Notes, that is an integral multiple of $1,000, that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the date of purchase, in accordance with the procedures set
forth in Section 3.09 hereof. To the extent that the aggregate amount of Notes and other such
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
or such Restricted Subsidiaries, as the case may be, may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased
on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds
shall be reset at zero.




     SECTION 4.11 Transactions with Affiliates.



          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any properties or
assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of any such Person (each of the foregoing, an “Affiliate Transaction”), unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person and (ii) the Company delivers to the
Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $                    , a resolution of its Board of Directors
set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with
clause (i) above, and (b) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $                    , an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an
Independent Financial Advisor. None of the following shall be deemed to be Affiliate Transactions:
(1) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business and consistent with the past practice of the Company or such
Restricted Subsidiary, as the case may be, (2) transactions between or among the Company and/or its
Restricted Subsidiaries, (3) transactions






44









 







with a Person that is an Affiliate of the Company solely because the Company owns an Equity
Interest in, or controls, such Person, (4) sales of Equity Interests (other than Disqualified
Stock) to Affiliates of the Company, (5) Restricted Payments that are permitted by Section 4.07
hereof, (6) advances to employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business and consistent with past practices, (7)
maintenance in the ordinary course of business of customary benefit programs or arrangements for
employees, officers or directors, including vacation plans, health and life insurance plans,
deferred compensation plans and retirement or savings plans and similar plans, (8) any issuance of
securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or
the funding of, employment agreements or stock option or stock ownership plans approved by the
Board of Directors, (9) fees and compensation paid to, and indemnity provided on behalf of,
officers, directors or employees of the Company or any of its Restricted Subsidiaries, as
determined by the Board of Directors of the Company or of any such Restricted Subsidiary, to the
extent such fees and compensation are reasonable and customary as determined by the Board of
Directors of the Company or such Restricted Subsidiary, and (10) the performance of obligations of
the Company or any of its Restricted Subsidiaries under the terms of any written agreement to which
the Company or any of its Restricted Subsidiaries is a party as in effect on the Issue Date.




     SECTION 4.12 Liens.



          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens, to secure (a) any Indebtedness of the Company or such Restricted
Subsidiary, unless prior to, or contemporaneously therewith, the Notes are equally and ratably
secured, or (b) any Indebtedness of any Guarantor, unless prior to, or contemporaneously therewith,
the Subsidiary Guarantees are equally and ratably secured; provided, however, that if such
Indebtedness is expressly subordinated to the Notes or any Subsidiary Guarantees, the Lien securing
such Indebtedness will be subordinated and junior to the Lien securing the Notes or any Subsidiary
Guarantees, as the case may be, with the same relative priority as such Indebtedness has with
respect to the Notes or any Subsidiary Guarantees.




     SECTION 4.13 Business Activities.



          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, engage in any line of business other than a Permitted Business, except to such extent
as would not be material to the Company and its Restricted Subsidiaries taken as a whole.




     SECTION 4.14 Corporate Existence.



          Subject to Articles 5 and 10 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance
with the respective organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Subsidiaries; provided, however, that






45









 







the Company shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.




     SECTION 4.15 Offer to Repurchase upon Change of Control.



               (a)      Upon the occurrence of a Change of Control, each Holder of Notes will have the right to
require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon, to the date of purchase (the “Change of Control Payment”).



          Within 30 days following any Change of Control, the Company shall mail a notice to each Holder
describing: (i) the transaction or transactions that constitute the Change of Control and that the
Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered
will be accepted for payment; (ii) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of
Control Payment Date”); (iii) that any Note not tendered will continue to accrue interest; (iv)
that, unless the Company defaults in the payment of the Change of Control Payment, all Notes
accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date; (v) that Holders electing to have any Notes purchased pursuant
to a Change of Control Offer will be required to surrender the Notes, with the form entitled
“Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date; (vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on the second Business
Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have the Notes purchased; and (vii)
that Holders whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple thereof. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in connection with
the repurchase of Notes as a result of a Change of Control.




               (b)      On the Change of Control Payment Date, the Company will, to the extent lawful, (i) accept
for payment all Notes or portions thereof properly tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (iii) deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the Company. The Paying Agent
will promptly mail to each Holder of Notes so tendered the Change of Control



46









 




Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. Prior to complying with the provisions of this
Section 4.15, but in any event within 90 days following a Change of Control, the Company will
either repay all outstanding Indebtedness or obtain the requisite consents, if any, under all
agreements governing outstanding Indebtedness to permit the repurchase of Notes required by this
covenant. The Company will publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.




               (c)      The Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth herein applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer. A Change of Control Offer may be made in advance of a Change of Control,
and conditioned upon the occurrence of such Change of Control, if a definitive agreement is in
place for the Change of Control at the time of making the Change of Control Offer.



     SECTION 4.16 Subsidiary Guarantees of Certain Indebtedness.



          No Restricted Subsidiary of the Company may guarantee any Indebtedness of the Company,
including Indebtedness under any Credit Facility, unless such Restricted Subsidiary (i) executes
and delivers to the Trustee a supplemental indenture in form and substance satisfactory to the
Trustee providing that such Restricted Subsidiary shall become a Guarantor under this Indenture and
evidencing such Subsidiary Guarantee of the Notes in accordance with Article 10 hereof, such
Subsidiary Guarantee to be a general unsecured obligation of the Guarantor ranking pari passu in
right of payment with all other current or future Senior Indebtedness of such Guarantor, and senior
in right of payment to any Subordinated Indebtedness of such Guarantor and (ii) delivers an Opinion
of Counsel to the effect, inter alia, that such supplemental indenture has been duly authorized and
executed by such Restricted Subsidiary. Neither the Company nor any Guarantor shall be required to
make a notation on the Notes to reflect any such subsequent Subsidiary Guarantee. Nothing in this
Section 4.16 shall be construed to permit any Restricted Subsidiary of the Company to incur
Indebtedness otherwise prohibited by Section 4.09 hereof.




     SECTION 4.17 Changes in Covenants When Notes Rated Investment Grade.



          If at any time that the Notes have a rating equal to or greater than BBB- by S&P and Baa3 by
Moody’s (each such rating, an “Investment Grade Rating”) and no Default or Event of Default shall
have occurred and be continuing, then, beginning on the day such Investment Grade Rating is
attained, the Company and its Subsidiaries shall no longer be subject to Sections 3.09, 4.07, 4.08,
4.09, 4.10, 4.11 and 4.13 and clause (iv) of Section 5.01 herein, provided, however, that the
provisions described under Sections 4.03, 4.12, 4.15, 4.16, 5.01 (other than clause (iv) of Section
5.01) and 10.01 herein shall not be so terminated.





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ARTICLE V.

SUCCESSORS




     SECTION 5.01 Merger, Consolidation, or Sale of Assets.



          The Company will not consolidate or merge with or into (whether or not the Company is the
surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related transactions, to another
corporation, Person or entity unless (i) the Company is the surviving corporation or the entity or
the Person formed by or surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United States, any state thereof
or the District of Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee; (iii) immediately before and after such
transaction no Default or Event of Default shall have occurred; and (iv) except in the case of a
merger of the Company with or into a Restricted Subsidiary, the Company or the entity or Person
formed by or surviving any such consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall have been made will,
at the time of such transaction and after giving pro forma effect thereto as if such transaction
had occurred at the beginning of the applicable four-quarter period, (x) be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth
in the first paragraph of Section 4.09 or (y) have a Fixed Charge Coverage Ratio that is no less
than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction.




     SECTION 5.02 Successor Corporation Substituted.



          Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in accordance with
Section 5.01 hereof, the successor corporation formed by such consolidation or into or with which
the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this
Indenture referring to the “Company” shall refer instead to the successor corporation and not to
the Company), and may exercise every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein.




ARTICLE VI.

DEFAULTS AND REMEDIES




     SECTION 6.01 Events of Default.



          An “Event of Default” occurs if:







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          (a)      the Company defaults in the payment when due of interest on, the Notes and such default
continues for 30 days;




          (b)      the Company defaults in the payment when due of principal of or premium, if any, on the
Notes;




          (c)      the Company or any of its Restricted Subsidiaries fails to comply with any of the
provisions of Sections 3.09, 4.10 or 4.15 hereof for 30 days after notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding;




          (d)      the Company or any of its Restricted Subsidiaries fails to observe or perform any
covenant, representation, warranty or other agreement in this Indenture, the Notes or the
Subsidiary Guarantees (other than the provisions expressly set forth in clause (c) above) for 60
days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding;




          (e)      a default occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the Issue Date, which default (i) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a “Payment Default”) or (ii) results in
the acceleration of such Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of which has been so
accelerated, aggregates without duplication $5,000,000 or more and such default shall not have been
cured or acceleration rescinded within five Business Days after such occurrence;




          (f)      a final judgment or final judgments for the payment of money in an aggregate amount in
excess of $                     (excluding amounts covered by insurance) shall be rendered by a court or
courts of competent jurisdiction against the Company or any of its Restricted Subsidiaries and such
judgment or judgments remain unpaid, undischarged or unstayed for a period of 60 days;




          (g)      the Company or any of its Restricted Subsidiaries or any of its Significant Subsidiaries
or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary
pursuant to or within the meaning of the Bankruptcy Code:





               (i)        commences a voluntary case,




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




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



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




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



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





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




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




                    (iii)     orders the liquidation of the Company or any of its Restricted Subsidiaries or
any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together,
would constitute a Significant Subsidiary;




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



               (i)      except as permitted herein, any Subsidiary Guarantee of a Restricted Subsidiary that
constitutes a Significant Subsidiary or a group of Restricted Subsidiaries, that taken together,
would constitute a Significant Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations
under its Subsidiary Guarantee (other than by reason of the termination of this Indenture or the
release of any such Subsidiary Guarantee in accordance with this Indenture).



     SECTION 6.02 Acceleration.



          If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of an Event of Default specified
in clause (g) or (h) of Section 6.01 hereof occurs with respect to the Company, any Significant
Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes shall be due and payable without further action or notice.
Holders of the Notes may not enforce this Indenture or the Notes except as provided in this
Indenture. The Holders of a majority in aggregate principal amount of the then outstanding Notes
by written notice to the Trustee may on behalf of all of the Holders rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal or interest that has become due solely
because of the acceleration) have been cured or waived. The Trustee may withhold from Holders of
the Notes notice of any continuing Default or Event of Default (except a Default or






50









 







Event of Default relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.




     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 or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.




     SECTION 6.04 Waiver of Past Defaults.



          The Holders of a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default
or Event of Default and its consequences hereunder, except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Notes including in connection with an offer
to purchase; provided, however, that the Holders of a majority in aggregate principal amount of
then outstanding Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration, to the extent permitted by applicable law.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.




     SECTION 6.05 Control by Majority.



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




     SECTION 6.06 Limitation on Suits.



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




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



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



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               (c)      such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense to be incurred in
compliance with such request;



               (d)      the Trustee does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and



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



          A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.




     SECTION 6.07 Rights of Holders of Notes to Receive Payment.



          Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, and interest on the Note, on or after the respective due
dates expressed in the Note (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.




     SECTION 6.08 Collection Suit by Trustee.



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




     SECTION 6.09 Trustee May File Proofs of Claim.



          The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due






52









 







the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other properties that the Holders may
be entitled to receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.




     SECTION 6.10 Priorities.



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




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




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




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




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




     SECTION 6.11 Undertaking for Costs.



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




ARTICLE VII.

TRUSTEE




     SECTION 7.01 Duties of Trustee.



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







53









 








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





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




               (ii)      In the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated therein).



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





               (i)        this paragraph does not limit the effect of paragraph (b) of this Section 7.01;




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




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



               (d)      Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.




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




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




     SECTION 7.02 Rights of Trustee.



               (a)      The Trustee may conclusively rely upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.







54









 








               (b)      Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon.




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




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




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




               (f)      The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities (including fees and expenses of its agents and counsel) that might be incurred by it in
compliance with such request or direction.




     SECTION 7.03 Individual Rights of Trustee.



          The Trustee, any Paying Agent, any authenticating agent or registrar in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent
may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.




     SECTION 7.04 Trustee’s Disclaimer.



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




     SECTION 7.05 Notice of Defaults.



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          If a Default or Event of Default occurs and is continuing and if it is actually known to a
Responsible Officer of the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, premium, or interest, if any, on any Note, the Trustee
may withhold the notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the Notes.




     SECTION 7.06 Reports by Trustee to Holders of the Notes.



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




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




     SECTION 7.07 Compensation and Indemnity.



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




          The Company shall indemnify each of the Trustee and any predecessor Trustee against any and
all losses, liabilities, claims, damages or expenses (including taxes other than taxes based upon
the income or gross receipts of the Trustee) incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability, claim, damage or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably withheld.







56









 








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




          To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
Lien prior to the Notes on all money or property held or collected by the Trustee, except that held
in trust to pay principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.




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




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




     SECTION 7.08 Replacement of Trustee.



          A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.




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




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



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



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



               (d)      the Trustee becomes incapable of acting.



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




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




          If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 7.10 hereof, such Holder of a Note






57









 







may, at the expense of the Company, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.




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




     SECTION 7.09 Successor Trustee by Merger, Etc.



          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business (including the administration of this Indenture) to, another
corporation, the successor corporation without any further act shall be the successor Trustee.




     SECTION 7.10 Eligibility, Disqualification.



          There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has (or, in the case of a Trustee that is a subsidiary of
a bank holding company, its bank holding company parent 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.




          This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).




     SECTION 7.11 Preferential Collection of Claims Against Company.



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




ARTICLE VIII.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




     SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.



          The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be
applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.







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     SECTION 8.02 Legal Defeasance and Discharge.



          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02. the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”)
except for (i) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium, if any, and interest on such Notes when such payments are due from the trust
referred to below, (ii) the Company’s obligations with respect to the Notes concerning registration
of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for
payment and money for security payments held in trust, (iii) the rights, powers, trusts, duties and
immunities of the Trustee, and the Company’s obligations in connection therewith and (iv) the Legal
Defeasance provisions of this Indenture. For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments acknowledging the same),
except for the following provisions which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on such Notes when such payments are due, (b)
the Company’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof, (c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s
obligations in connection therewith and (d) this Article 8. Subject to compliance with this Article
8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.




     SECTION 8.03 Covenant Defeasance.



          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 3.09, 4.03,
4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16 and 4.17 hereof, Article 5 hereof
and Section 10.03 hereof with respect to the outstanding Notes on and after the date the conditions
set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or
act of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as






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specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(c) through 6.01(g) hereof and 6.01(i) hereof shall not constitute Events of
Default.




     SECTION 8.04 Conditions to Legal or Covenant Defeasance.



          The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes:




          In order to exercise either Legal Defeasance or Covenant Defeasance:




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



               (b)      in the case of an election under Section 8.02 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;



               (c)      in the case of an election under Section 8.03 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;



               (d)      no Default or Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) or insofar as Section 6.01(g) or 6.01(h) hereof is concerned, at any time
in the period ending on the 91st day after the date of deposit;



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



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



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



               (h)      the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.



     SECTION 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.



          Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to the extent required
by law.




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




          Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.




     SECTION 8.06 Repayment to Company.



          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a






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secured creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national edition), notice that
such money remains unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.




     SECTION 8.07 Reinstatement.



          If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE IX.

AMENDMENT, SUPPLEMENT AND WAIVER




     SECTION 9.01 Without Consent of Holders of Notes.



          Notwithstanding Section 9.02 hereof, the Company and the Trustee may amend or supplement this
Indenture, the Notes or the Subsidiary Guarantees without the consent of any Holder of a Note:




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



               (b)      to provide for uncertificated Notes in addition to or in place of certificated Notes or to
alter the provisions of Article 2 hereof (including the related definitions) in a manner that does
not materially adversely affect any Holder;



               (c)      to provide for the assumption of the Company’s obligations to the Holders of the Notes in
the case of a merger, consolidation or sale of assets of the Company pursuant to Article 5 hereof
or of any Guarantor pursuant to Article 10 hereof or to add any Person as a Guarantor hereunder;



               (d)      to make any change that would provide any additional rights or benefits to the Holders of
the Notes or that does not adversely affect the legal rights hereunder of any such Holder; or



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               (e)      to comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA or to allow any Guarantor to guarantee the Notes.



          Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties, liabilities or immunities under this Indenture or
otherwise.




     SECTION 9.02 With Consent of Holders of Notes.



          Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture (including Sections 3.09, 4.10 and 4.15 hereof) and the Notes may be
amended or supplemented with the consent of the Holders of at least a majority in principal amount
of the Notes then outstanding (including, without limitation, consents obtained in connection with
a tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest, on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision of this Indenture or
the Notes may be waived with the consent of the Holders of a majority in principal amount of the
then outstanding Notes (including consents obtained in connection with a tender offer or exchange
offer for the Notes).




          Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by a Responsible Officer of the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the Trustee’s own
rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.




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




          After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive compliance in a






63









 







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




               (a)      reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver of any provision of this Indenture, the Notes or any Subsidiary Guarantee;



               (b)      reduce the principal of or change the fixed maturity of any Note or alter or waive in any
manner that adversely affects the rights of any Holder of Notes any of the provisions with respect
to the redemption of the Notes except as provided above with respect to Sections 3.09, 4.10 and
4.15 hereof and the related definitions;



               (c)      reduce the rate of or change the time for payment of interest, including default interest
on any Note;



               (d)      waive a Default or Event of Default in the payment of principal of or premium, if any, or
interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);



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



               (f)      make any change that adversely affects the rights of any Holder of Notes in the provisions
of this Indenture relating to waivers of past Defaults or make any change to the rights of Holders
of Notes to receive payments of principal of or interest on the Notes;



               (g)      waive a redemption payment with respect to any Note (other than a payment required by
Sections 3.09, 4.10 and 4.15 hereof); or



               (h)      make any change in Section 6.04 or 6.07 hereof or in the foregoing amendment and waiver
provisions.



     SECTION 9.03 Compliance with Trust Indenture Act.



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




     SECTION 9.04 Revocation and Effect of Consents.



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







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     SECTION 9.05 Notation on or Exchange of Notes.



          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company, in exchange for all Notes, may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.




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




     SECTION 9.06 Trustee to Sign Amendments, Etc.



          The Trustee shall sign any amended or supplemental Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties, liabilities or immunities
under this Indenture or otherwise. The Company may not sign an amendment or supplemental Indenture
until the Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected
in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture is authorized or permitted by this Indenture.




ARTICLE X.

GUARANTEES




     SECTION 10.01 Subsidiary Guarantees.



          Subject to Section 10.05 hereof, any Restricted Subsidiary that becomes a Guarantor shall,
jointly and severally, unconditionally guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, the Notes and the
Obligations of the Company hereunder and thereunder, that:




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



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



          Failing payment when so due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. An Event of Default under this Indenture or the Notes shall constitute an event of
default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the






65









 







Obligations of the Guarantors hereunder in the same manner and to the same extent as the
Obligations of the Company. The Guarantors shall agree that their Obligations hereunder shall be
unconditional, irrespective of the validity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor shall waive diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all demands whatsoever
and shall covenant that its Subsidiary Guarantee will not be discharged except by complete
performance of the Obligations contained in the Notes and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note
Custodian, Trustee, liquidator or other similar official acting in relation to either the Company
or the Guarantors, any amount paid by the Company or any Guarantor to the Trustee or such Holder,
the Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force
and effect. Each Guarantor shall agree that it shall not be entitled to, and shall waive, any right
to exercise any right of subrogation in relation to the Holders in respect of any Obligations
guaranteed by the Subsidiary Guarantee, except as provided under Section 10.05 hereof. Each
Guarantor shall further agree that, as between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed by the Subsidiary
Guarantee may be accelerated as provided in Article 6 hereof for the purposes of its Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the Obligations guaranteed thereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not
due and payable) shall forthwith become due and payable by each Guarantor for the purpose of its
Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying
Guarantor pursuant to Section 10.05 after the Notes and the Obligations hereunder shall have been
paid in full to the Holders under the Subsidiary Guarantees.




     SECTION 10.02 Execution and Delivery of Subsidiary Guarantee.



          To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof, each Guarantor shall
(i) execute and deliver a supplemental indenture substantially in the form of Exhibit B hereto,
which supplemental indenture shall be entered into in accordance with Section 4.16 hereof and shall
be executed on behalf of such Guarantor, by manual or facsimile signature, by an Officer of such
Guarantor and (ii) deliver an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Guarantor.




          Each Guarantor shall agree that its Subsidiary Guarantee set forth in Section 10.01 hereof
shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.




          If an officer who shall have signed this Indenture or a supplemental indenture no longer holds
that office at the time the Trustee authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless.







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          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the
Guarantors.




     SECTION 10.03 Guarantors May Consolidate, Etc., on Certain Terms.



               (a)      Except as set forth in Articles 4 and 5 hereof, nothing contained in this Indenture shall
prohibit a merger between a Guarantor and another Guarantor or a merger between a Guarantor and the
Company.



               (b)      No Guarantor shall consolidate with or merge with or into (whether or not such Guarantor
is the surviving Person) or sell all or substantially all of its assets to, another corporation,
Person or entity whether or not affiliated with such Guarantor unless, (i) subject to the following
paragraph, the Person formed by or surviving any such merger or consolidation, or to which such
sale of assets shall have been made (if other than such Guarantor) assumes all the Obligations of
such Guarantor, pursuant to a supplemental indenture substantially in the form of Exhibit E hereto,
under this Indenture; and (ii) immediately after giving effect to such transaction, no Default or
Event of Default exists.



          Notwithstanding the foregoing paragraph, (i) any Guarantor may consolidate with, merge into or
transfer all or a part of its properties and assets to the Company or any other Guarantor and (ii)
any Guarantor may merge with a Restricted Subsidiary of the Company that has no significant assets
or liabilities and was incorporated solely for the purpose of re-incorporating or re-domesticating
such Guarantor in another State of the United States or, if such Guarantor was organized under the
laws of a jurisdiction other than a State of the United States, in any foreign country that is a
member of the OECD; provided that, in each case, such merged entity continues to be a Guarantor.



               (c)      In the case of any such consolidation, merger, sale or conveyance and upon the assumption
by the successor Person, by supplemental indenture, executed and delivered to the Trustee and
substantially in the form of Exhibit B hereto, of the Subsidiary Guarantee endorsed upon the Notes
and the due and punctual performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary Guarantees to be endorsed upon all of
the Notes issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All of the Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.



     SECTION 10.04 Releases Following Release Under All Indebtedness or Sale of Assets.



          In the event of (i) the release by the lenders under all Indebtedness of the Company of all
guarantees of a Guarantor and all Liens on the property and assets of such Guarantor relating to
such Indebtedness, or (ii) a sale or other disposition of all of the assets of any Guarantor, by
way






67









 







of merger, consolidation or otherwise, or a sale or other disposition of all of the Capital
Stock of any Guarantor in compliance with this Indenture to any entity that is not the Company or a
Subsidiary, then such Guarantor (in the event of a sale or other disposition, by way of such a
merger, consolidation or otherwise, of all of the Capital Stock of such Guarantor), or the Person
acquiring the property (in the event of such a sale or other disposition of all of the assets of
such Guarantor), will be released and relieved of any obligations under its Subsidiary Guarantee;
provided, however, that any such termination shall occur only to the extent that all obligations of
such Guarantor under such Indebtedness and all of its guarantees of, and under all of its pledges
of assets or other security interests which secure, Indebtedness of the Company shall also
terminate upon such release, sale or transfer and, in the event of any sale or other disposition,
that the Net Proceeds of such sale or other disposition are applied in accordance with Section 4.10
hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate to the effect of
the foregoing, the Trustee shall execute any documents reasonably required in order to evidence the
release of any Guarantor from its Obligation under its Subsidiary Guarantee. Any Guarantor not
released from its Obligations under its Subsidiary Guarantee shall remain liable for the full
amount of principal of, premium, if any, and interest on the Notes and for the other Obligations of
such Guarantor under this Indenture as provided in this Article 10.




     SECTION 10.05 Limitation on Guarantor Liability; Contribution.



          For purposes hereof, each Guarantor’s liability shall be limited to the lesser of (i) the
aggregate amount of the Obligations of the Company under the Notes and this Indenture and (ii) the
amount, if any, which would not have (A) rendered such Guarantor “insolvent” (as such term is
defined in the Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (B)
left such Guarantor with unreasonably small capital at the time its Subsidiary Guarantee of the
Notes was entered into; provided that, it will be a presumption in any lawsuit or other proceeding
in which a Guarantor is a party that the amount guaranteed pursuant to the Subsidiary Guarantee is
the amount set forth in clause (i) above unless any creditor, or representative of creditors of
such Guarantor, or debtor in possession or trustee in bankruptcy of the Guarantor, otherwise proves
in such a lawsuit that the aggregate liability of the Guarantor is the amount set forth in clause
(ii) above. In making any determination as to solvency or sufficiency of capital of a Guarantor in
accordance with the previous sentence, the right of such Guarantor to contribution from other
Guarantors as set forth below, and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.




          In order to provide for just and equitable contribution among the Guarantors, the Guarantors
shall agree, inter se, that in the event any payment or distribution is made by any Guarantor (a
“Funding Guarantor”) under its Subsidiary Guarantee, such Funding Guarantor shall be entitled to a
contribution from all other Guarantors in a pro rata amount based on the Adjusted Net Assets of
each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by
that Funding Guarantor in discharging the Company’s obligations with respect to the Notes or any
other Guarantor’s Obligations with respect to its Subsidiary Guarantee.




     SECTION 10.06 Trustee to Include Paying Agent.



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          In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article 10 shall in each
case (unless the context shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully and for all intents and purposes as if such Paying Agent
were named in this Article 10 in place of the Trustee.




ARTICLE XI.

SATISFACTION AND DISCHARGE




     SECTION 11.01 Satisfaction and Discharge.



          This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when (a) either (i) all such Notes have been authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money
has been deposited in trust and thereafter repaid to the Company) have been delivered to the
Trustee for cancellation; or (ii) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of redemption or
otherwise or will become due and payable within one year and the Company has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. Dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient without consideration of any reinvestment of interest, to pay
and discharge the entire indebtedness on such Notes not delivered to the Trustee for cancellation
for principal, premium, if any, and accrued interest to the date of maturity or redemption; (b) no
Default or Event of Default with respect to this Indenture or the Notes shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under, any other instrument to
which the Company is a party or by which the Company is bound; (c) the Company has paid or caused
to be paid all sums payable by it under this Indenture; and (d) the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward
the payment of such Notes at maturity or the redemption date, as the case may be. In addition, the
Company must deliver an Officers’ Certificate and an opinion of counsel to the Trustee stating that
all conditions precedent to satisfaction and discharge have been satisfied.




ARTICLE XII.

MISCELLANEOUS




     SECTION 12.01 Trust Indenture Act Controls.



          If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA § 318(c), the imposed duties shall control.




     SECTION 12.02 Notices.



          Any notice or communication by the Company or the Trustee to the others is duly given if in
writing and delivered in Person or mailed by first class mail (registered or certified, return
receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the
others’ address:







69









 







If to the Company:



GulfMark Offshore, Inc.

10111 Richmond Avenue, Suite 340

Houston, Texas 77042

Telecopier No.: (___) ___ -  ____

Attention:                        ,     
                



If to the Trustee:



U.S. Bank National Association

225 Asylum Street, 23rd Floor

Hartford, Connecticut 06103

Telecopier No.: (860) 241-6897

Attention:   Corporate Trust Services

Ref:            GulfMark Offshore




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




          All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.




          Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication of a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.




          If a notice or communication is mailed in the manner provided above within the time prescribed
it is duly given, whether or not the addressee receives it.




          If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.




     SECTION 12.03 Communication by Holders of Notes with Other Holders of Notes.



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




     SECTION 12.04 Certificate and Opinion as to Conditions Precedent.



70









 





          Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




               (a)      an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and



               (b)      an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.



     SECTION 12.05 Statements Required in Certificate or Opinion.



          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:




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



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



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



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



     SECTION 12.06 Rules by Trustee and Agents.



          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.




     SECTION 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.



          No past, present or future director, officer, employee, incorporator, partner, member or
stockholder of the Company or any Guarantor, or of any member, partner or stockholder of any such
entity, as such, shall have any liability for any obligations of the Company under the Notes, this
Indenture or the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes.

Such waiver may not be effective to waive liabilities under the federal securities laws and it
is the view of the Commission that such a waiver is against public policy.







71









 








     SECTION 12.08 Governing Law.



          THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF, SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.




     SECTION 12.09 No Adverse Interpretation of Other Agreements.



          This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.




     SECTION 12.10 Successors.



          All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.




     SECTION 12.11 Severability.



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




     SECTION 12.12 Counterpart 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.




     SECTION 12.13 Table of Contents, Headings, Etc.



          The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.




[Signatures Page(s) Follow]







72









 








SIGNATURES



Dated as of                     




	 	 	 	 	 

	 	 	Issuer:
	 
	 	 	 	 
	 	 	GULFMARK OFFSHORE, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Trustee:
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL

ASSOCIATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





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EXHIBITS




	 	 	 

	Exhibit A

	 	FORM OF NOTE
	 
	 	 
	Exhibit B

	 	FORM OF SUPPLEMENTAL INDENTURE






 









 






EXHIBIT A




[Insert the Global Note Legend. if applicable, pursuant to the provisions of the Indenture]



(Face of Note)



CUSIP/CINS:                     




 






			
	 	 	 
	No. ___
	 	$                     






GULFMARK OFFSHORE, INC.



promises to pay to                                         , or registered assigns,



the principal sum of                                          Dollars on                     .



Interest Payment Dates:                      and                     



Record Dates:                      and                     





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          IN WITNESS WHEREOF, the company has caused this Note to be duly executed.



Dated:




GULFMARK OFFSHORE, INC.




	 	 	 	 	 

	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






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This is one of the

Notes referred to in the

within-mentioned Indenture:




U.S. BANK NATIONAL ASSOCIATION,

as Trustee




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	Authorized Signatory	 	 






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(Back of Note)




 





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




          1.      Interest. GulfMark Offshore, Inc., a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Note at ___% per annum, from                      until maturity. The
Company will pay interest semi-annually in arrears on                      and                      of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment
Date”). Interest on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be                     . The Company shall pay interest (including post-petition interest
in any proceeding under the Bankruptcy Code) on overdue principal and premium, if any, from time to
time on demand at the rate borne on the Notes; it shall pay interest (including post-petition
interest in any proceeding under the Bankruptcy Code) on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.




          2.      Method of Payment. The Company will pay interest on the Notes (except defaulted interest)
to the Persons who are registered Holders of Notes at the close of business on the                     or
                     next preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in the Indenture with
respect to defaulted interest. The Notes will be payable as to principal, premium and interest at
the office or agency of the Company maintained for such purpose within the City and State of New
York, or, at the option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to principal of and interest,
and premium on all Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts.




          3.      Paying Agent and Registrar. Initially, U.S. Bank National Association, the Trustee under
the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.




          4.      Indenture. The Company issued the Notes under an Indenture dated as of                     
(“Indenture”) between the Company and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code § 77aaa-77bbbb). The Notes are subject to all






A-2









 







such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Company limited to $                in aggregate principal amount. Additional Notes
may be issued pursuant to the Indenture and will be part of the same series as the Initial Notes.




          5.      Optional Redemption.




               (a)      Except as set forth in subparagraph (b) of this paragraph 5, the Notes shall not be
redeemable at the Company’s option prior to                . Thereafter, the Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon not less than 30 nor
more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon, if any, to the applicable redemption
date, if redeemed during the twelve-month period beginning on                 of the years indicated
below:



	 	 	 	 
	Year	 	 	Percentage
	               
	 	 	               %
	               
	 	 	               %
	               
	 	 	               %
	                and thereafter
	 	 	               %






               (b)      Notwithstanding the foregoing, at any time prior to                , the Company may also redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days prior notice mailed by
first class mail to each Holder’s registered address, at a redemption price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest to, the date of redemption (the “Redemption Date”).



               (c)      In addition, at any time before                , the Company may on any one or more occasions
redeem up to an aggregate of 35% of the principal amount of Notes (including any Additional Notes)
outstanding at a redemption price of                % of the principal amount thereof, plus accrued and
unpaid interest, if any, to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that at least 65% of the aggregate principal amount of Notes outstanding on the
Issue Date remain outstanding immediately after each occurrence of such redemption; and provided,
further, that each such redemption shall occur within 120 days of the date of the closing of such
Equity Offering.



               (d)      Notice of any redemption upon an Equity Offering may be given prior to the completion of
the related Equity Offering, and any such redemption or notice may, at the Company’s discretion, be
subject to one or more conditions precedent, including, but not limited to completion of the
related Equity Offering.



          6.      Mandatory Redemption. Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to the Notes.








A-3









 








          7.      Repurchase at Option of Holder.




               (a)      Upon the occurrence of a Change of Control, each Holder of Notes will have the right to
require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon, to the date of purchase (the “Change of Control Payment”). Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.



               (b)      If the Company or a Restricted Subsidiary consummates any Asset Sales and the aggregate
amount of Excess Proceeds exceeds $20,000,000, the Company shall commence an offer to all Holders
of Notes pursuant to the Indenture and other Indebtedness that ranks by its terms pari passu in
right of payment with the Notes and the terms of which contain substantially similar requirements
with respect to the application of net proceeds from Asset Sales as are contained in the Indenture
(an “Asset Sale Offer”) to purchase on a pro rata basis the maximum principal amount of Notes, that
is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and other such Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company or such Restricted
Subsidiary, as the case may be, may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from
the Company prior to any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.



          8.      Notice of Redemption. Notice of redemption will be mailed, by first class mail, at least
30 days but not more than 60 days before a redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in
part but only in integral multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on Notes or portions thereof
called for redemption.




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








A-4









 








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




          11.      Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without limitation, consents obtained in
connection with a tender offer or exchange of the Notes), and any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the principal of, premium, if
any, or interest on the Notes, except a Payment Default resulting from an acceleration that has
been rescinded) or compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer for the Notes).
Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency; to provide for uncertificated Notes in
addition to or in place of certificated Notes; to provide for the assumption of the Company’s
obligations to Holders of the Notes in case of a merger, consolidation or sale of assets or to add
any Person as a Guarantor; to make any change that would provide any additional rights or benefits
to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder; or to comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the TIA or to allow any Guarantor to guarantee
the Notes.




          12.      Defaults and Remedies. Events of Default include: (a) default by the Company in the
payment when due of interest on the Notes and such default continues for 30 days; (b) default by
the Company in the payment when due of principal of or premium, if any, on the Notes; (c) failure
by the Company or any of its Restricted Subsidiaries to comply with certain provisions of the
Indenture that require the Company to repurchase Notes at the option of the Holders for 30 days
after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding; (d) failure by the Company or any of its Restricted
Subsidiaries to observe or perform any covenant, representation, warranty or other agreement in the
Indenture, the Notes or the Subsidiary Guarantees (other than as described in clause (c) above) for
60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding; (e) a default occurs under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the Issue Date, which default (i) is
caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior
to the expiration of the grace period provided in such Indebtedness on the date of such default (a
“Payment Default”) or (ii) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates without duplication $5,000,000 or more and
such default shall not have been cured or acceleration rescinded within five Business Days after
such occurrence; (f) a final judgment or final judgments for the payment of money in an aggregate
amount in excess of $15,000,000 (excluding amounts covered by insurance), shall be rendered by a
court or courts of competent






A-5









 







jurisdiction against the Company or any of its Restricted Subsidiaries or any of its
Significant Subsidiaries and such judgment or judgments remain unpaid or undischarged for a period
of 60 days; (g) the Company or any of its Restricted Subsidiaries or any of its Significant
Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary pursuant to or within the meaning of the Bankruptcy Code: (i) commences a voluntary
case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii)
consents to the appointment of a custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or (v) generally is not paying
its debts as they become due; (h) a court of competent jurisdiction enters an order or decree under
the Bankruptcy Code that: (i) is for relief against the Company or any of its Restricted
Subsidiaries or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken
together, would constitute a Significant Subsidiary, in an involuntary case, (ii) appoints a
Custodian of the Company or any of its Restricted Subsidiaries or any of its Significant
Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary, or for all or substantially all of the property of the Company or any of its Restricted
Subsidiaries or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken
together, would constitute a Significant Subsidiary, or (iii) orders the liquidation of the Company
or any of its Restricted Subsidiaries or any of its Significant Subsidiaries or any group of
Subsidiaries that, when taken together, would constitute a Significant Subsidiary, and the order or
decree remains unstayed and in effect for 60 consecutive days; or (i) except as permitted in the
Indenture, any Subsidiary Guarantee of a Restricted Subsidiary that constitutes a Significant
Subsidiary or a group of Restricted Subsidiaries, that taken together, would constitute a
Significant Subsidiary shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee
(other than by reason of the termination of the Indenture or the release of any such Subsidiary
Guarantee in accordance with the Indenture). If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or insolvency specified in
clause (g) or (h) above occurs with respect to the Company, any Significant Subsidiary or any group
of Subsidiaries that, taken together, would constitute a Significant Subsidiary, all outstanding
Notes shall become due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Holders of at least a majority in
aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default (except nonpayment
of principal or interest that has become due solely because of the acceleration) have been cured or
waived. The Trustee may withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the payment of interest
on, or the principal of, the Notes, including an offer to purchase.







A-6









 








          The Company is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event of Default.




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




          14.      No Recourse Against Others. No past, present or future director, officer, employee,
incorporator, partner, member or stockholder, of the Company or any Guarantor, or of any member,
partner or stockholder of any such entity, as such, shall have any liability for any obligations of
the Company under the Notes, the Subsidiary Guarantees or the Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
the issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is against public policy.




          15.      Authentication. This Note shall not be valid until authenticated by the manual signature
of a Responsible Officer of the Trustee or an authenticating agent.




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




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




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



GulfMark Offshore, Inc.

10111 Richmond Avenue, Suite 340

Houston, Texas 77042

Telecopier No.: (___) ___ -  ____

Attention:                     ,                     







A-7









 








Assignment Form



To assign this Note, fill in the form below:




	 	 	 

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

	 	 
	 

	 	(Insert assignee’s legal name)






 




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










 





 





 





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



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



 





Date:                    




	 	 	 

	Your Signature:
	 	 
	 

	 	 
	 

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






	 	 	 

	SIGNATURE GUARANTEE*:
	 	 
	 

	 	 




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









A-8









 








Opinion of Holder to Elect Purchase




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Indenture, check the box below:




	 	 	 

	o     Section 4.10
	 	o     Section 4.15






      If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:




$                    



Date:                    




	 	 	 

	Your Signature:
	 	 
	 

	 	 
	 

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






	 	 	 

	Tax Identification No.:
	 	 
	 

	 	 





	 	 	 

	SIGNATURE GUARANTEE*:
	 	 
	 

	 	 




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








A-9









 








SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL

NOTE*




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




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal	 	 
	 	 	 	 	 	 	Amount of	 	 
	 	 	 	 	Amount of	 	this Global	 	Signature of
	 	 	 	 	increase in	 	Note	 	Authorized
	 	 	Amount of decrease	 	Principal	 	following	 	signatory of
	Date of
	 	in Principal Amount	 	Amount of this	 	such decrease	 	Trustee or Note
	Exchange
	 	of this Global Note	 	Global Note	 	(or increase)	 	Custodian
	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 




* This schedule should be included only if the Note is issued in global form.






A-10









 








EXHIBIT B




FORM OF SUPPLEMENTAL INDENTURE




          SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                                         
between GulfMark Offshore, Inc., a Delaware corporation (the “Company”), [Guarantor] (the
“Guarantor”), and U.S. Bank National Association, as trustee under the indenture referred to below
(the “Trustee”). Capitalized terms used herein and not defined herein shall have the meaning
ascribed to them in the Indenture (as defined below).



W I T N E S E T H




          WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of                     , providing for the issuance of an aggregate principal amount of
$                     of                     % Senior Notes due                      (the “Notes”);




          WHEREAS, Article 10 and Section 4.16 of the Indenture provide that under certain circumstances
the Company may or must cause certain of its Subsidiaries to execute and deliver to the Trustee a
supplemental indenture pursuant to which such Subsidiaries shall unconditionally guarantee all of
the Company’s Obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and
conditions set forth herein; and




          WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.




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




          1.      Agreement to Guarantee. Subject to Section 10.05 of the Indenture, each Guarantor hereby
jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, the Notes and the
Obligations of the Company under the Notes or under the Indenture, that: (a) the principal of,
premium, if any, and interest on the Notes will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration, redemption or otherwise, and
interest on overdue principal, premium, if any (to the extent permitted by law) and interest on any
interest on the Notes and all other payment Obligations of the Company to the Holders or the
Trustee under the Indenture or under the Notes will be promptly paid in full and performed, all in
accordance with the terms thereof; and (b) in case of any extension of time of payment or renewal
of any Notes or any of such other payment Obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise.
Failing payment when so due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately.







 









 








          The obligations of the Guarantors to the Holders and to the Trustee pursuant to this
Supplemental Indenture and the Indenture are expressly set forth in Article 10 of the Indenture,
and reference is hereby made to such Indenture for the precise terms of this Subsidiary Guarantee.
The terms of Article 10 of the Indenture are incorporated herein by reference. This Subsidiary
Guarantee is subject to release as and to the extent provided in Section 10.04 of the Indenture.




          This is a continuing Subsidiary Guarantee and shall remain in full force and effect and shall
be binding upon each Guarantor and its respective successors and assigns to the extent set forth in
the Indenture until full and final payment of all of the Company’s Obligations under the Notes and
the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges herein conferred upon that party shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions hereof. This is a
Subsidiary Guarantee of payment and not a guarantee of collection.




          Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and covenants that this
Subsidiary Guarantee will not be discharged except by complete performance of the Obligations
contained in the Notes and the Indenture.




          This Subsidiary Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Subsidiary Guarantee is noted shall have
been executed by the Trustee under the Indenture by the manual signature of one of its authorized
officers.




          For purposes hereof, each Guarantor’s liability shall be limited to the lesser of (i) the
aggregate amount of the Obligations of the Company under the Notes and the Indenture and (ii) the
amount, if any, which would not have (A) rendered such Guarantor “insolvent” (as such term is
defined in the Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (B)
left such Guarantor with unreasonably small capital at the time its Subsidiary Guarantee of the
Notes was entered into; provided that it will be a presumption in any lawsuit or other proceeding
in which a Guarantor is a party that the amount guaranteed pursuant to the Subsidiary Guarantee is
the amount set forth in clause (i) above unless any creditor, or representative of creditors of
such Guarantor, or debtor in possession or trustee in bankruptcy of such Guarantor, or proves in
such a lawsuit that the aggregate liability of the Guarantor is limited to the amount set forth in
clause (ii) above. The Indenture provides that, in making any determination as to the solvency or
sufficiency of capital of a Guarantor in accordance with the previous sentence, the right of such
Guarantors to contribution from other Guarantors as set forth in the Indentures and any other
rights such Guarantors may have, contractual or otherwise, shall be taken into account.




          2.      No Recourse Against Others. No past, present or future director, officer, employee,
incorporator, partner, member, shareholder or agent of any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a Note






 









 







waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal
securities law and it is the view of the Commission that such waiver is against public policy.




          3.      New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.




          4.      Counterparts. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.




          5.      Effect of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.




          6.      The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
correctness of the recitals of fact contained herein, all of which recitals are made solely by the
Guarantor.







 









 








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



Dated:




	 	 	 	 	 
	 	GULFMARK OFFSHORE, INC.

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: