As filed with the Securities and Exchange Commission on January 23, 2007.
Registration No. 333-
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
 
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_________________________
 
GENCO SHIPPING & TRADING LIMITED
(Exact name of registrant as specified in its charter)
 
 Republic of the Marshall Islands                                                                                     98-043-9758
 (State or other jurisdiction of                                                                                       (I.R.S. Employer
 incorporation or organization)                                                                                     Identification No.)
299 Park Avenue, 20 th Floor
New York, New York 10171
(646) 443-8550
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
_________________________
 
John C. Wobensmith
Chief Financial Officer
299 Park Avenue, 20 th Floor
New York, New York 10171
(646) 443-8550

(Name, address, including zip code, and telephone number, including area code, of agent for service)
_________________________
 
Copies To:
 
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, New York 10036
Attention: Thomas E. Molner, Esq.
(212) 715-9100
 
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
 
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. £
 
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. S
 
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. £
 
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. £
 
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. £

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. £

 

 
 
CALCULATION OF REGISTRATION FEE

Title of Each Class of
Securities to be Registered	  	Amount to be
Registered(1)	  	Proposed
Maximum
Offering Price
per Unit (2)	 	Proposed
Maximum
Aggregate
Offering Price(3)	  	Amount of
Registration Fee	
 
Debt Securities	  	(4)	  	(4)	 	(4)	  	(4)	
 
Preferred Stock	  	(4)	  	(4)	 	(4)	  	(4)	
 
Common Stock, par value $.01 per share	  	(4)	  	(4)	 	(4)	  	(4)	
 
Total	  	$500,000,000	  	100%	 	$500,000,000	  	$53,500	

(1)	In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency or currency(ies) at the dates of issuance.	
 
(2)	The proposed maximum offering price per security will be determined from time to time by Genco Shipping & Trading Limited in connection with the issuance by the registrant of the securities registered hereunder.	
 
(3)	Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) of the Securities Act of 1933, as amended (the “Securities Act”).	
 
(4)	Not required to be included in accordance with General Instruction II.D. of Form S-3 under the Securities Act.	

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
 
SUBJECT TO COMPLETION, DATED JANUARY 23, 2007
PROSPECTUS

 
$500,000,000

 
 
GENCO SHIPPING & TRADING LIMITED
 
Debt Securities
Preferred Stock
Common Stock
 
We may offer, from time to time, debt securities, shares of our preferred stock, and shares of our common stock having an aggregate initial offering price of up to $500,000,000. The securities may be offered separately or together in any combination and as separate series. In addition, selling shareholders to be named in a prospectus supplement may offer, from time to time, shares of Genco common stock. We will not receive any of the proceeds from the sale of the shares of common stock by the selling shareholders.
 
We will provide specific terms of any offering and the offered securities in supplements to this prospectus. Any prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and any prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in this prospectus, carefully before you invest. This prospectus may not be used to consummate sales of securities unless accompanied by the applicable prospectus supplement.
 
Our principal executive offices are located at 299 Park Avenue, 20th Floor, New York, New York 10171, and our telephone number is (646) 443-8550.
 
Our common stock is traded on the Nasdaq Global Select Market under the symbol “GSTL.” On January 22, 2007, the closing sale price of our common stock as reported by Nasdaq was $30.37 per share. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
 
We may offer these securities directly, to or through agents, dealers or underwriters as designated from time to time, or through a combination of these methods. We reserve the sole right to accept, and together with our agents, dealers and underwriters reserve the right to reject, in whole or in part, any proposed purchase of securities to be made directly or through agents, underwriters or dealers. If any agents, dealers or underwriters are involved in the sale of any securities, the relevant prospectus supplement will set forth any applicable commissions or discounts. Our net proceeds from the sale of securities also will be set forth in the relevant prospectus supplement.
 
Investing in our securities involves risks that are referenced in the “Risk Factors” section beginning on page 2 of this prospectus.
 
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
 
The date of this Prospectus is _________, 2007.

 
TABLE OF CONTENTS
 
                                                                                                                 Page
 
ABOUT THIS PROSPECTUS.................................................................................................................................................................................. 2
 
RISK FACTORS........................................................................................................................................................................................................ 2
 
FORWARD-LOOKING STATEMENTS............................................................................................................................................................... 2
 
ABOUT GENCO....................................................................................................................................................................................................... 2
 
RATIOS OF EARNINGS TO FIXED CHARGES................................................................................................................................................. 3
 
USE OF PROCEEDS................................................................................................................................................................................................ 3
 
DESCRIPTION OF DEBT SECURITIES............................................................................................................................................................... 3
 
DESCRIPTION OF CAPITAL STOCK................................................................................................................................................................. 6
 
PLAN OF DISTRIBUTION.................................................................................................................................................................................. 12
 
LEGAL MATTERS............................................................................................................................................................................................... 14
 
EXPERTS............................................................................................................................................................................................................... 14
 
WHERE YOU CAN FIND MORE INFORMATION........................................................................................................................................ 14
 
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................................................................................................ 14

ABOUT THIS PROSPECTUS
 
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process. Under the shelf process, we may, from time to time, offer up to $500,000,000 aggregate public offering price of our debt securities, preferred stock and common stock. In this prospectus, we will refer to our debt securities, preferred stock and common stock collectively as the “securities.” This prospectus provides you with a general description of the securities that we may offer. Each time that we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement also may add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference.” We may only use this prospectus to sell securities if it is accompanied by a prospectus supplement. We are only offering these securities in states where the offer is permitted.
 
The registration statement that contains this prospectus, including the exhibits to the registration statement, contains additional information about us and the securities offered under this prospectus. That registration statement can be read at the SEC’s web site or at the SEC’s offices referenced under the heading “Where You Can Find More Information.”
 
RISK FACTORS
 
You should carefully consider the specific risks set forth under the caption “Risk Factors” in the applicable prospectus supplement and under the caption “Risk Factors” in any of our filings with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), incorporated by reference herein, before making an investment decision. For more information see “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference.”
 
FORWARD-LOOKING STATEMENTS
 
We make statements in this prospectus and the documents incorporated by reference that are considered forward-looking statements under the federal securities laws. Such forward-looking statements are based on the beliefs of our management as well as assumptions made by and information currently available to them. The words “anticipate,” “believe,” “may,” “estimate,” “expect,” and similar expressions, and variations of such terms or the negative of such terms, are intended to identify such forward-looking statements.
 
All forward-looking statements are subject to certain risks, uncertainties and assumptions. If one or more of these risks or uncertainties materialize, or if underlying assumptions prove incorrect, our actual results, performance or achievements could differ materially from those expressed in, or implied by, any such forward-looking statements. Important factors that could cause or contribute to such difference include those discussed under “Risk Factors” in this prospectus and in our Annual Report on Form 10-K for the year ended December 31, 2005, incorporated by reference into this prospectus. You should not place undue reliance on such forward-looking statements, which speak only as of their dates. We do not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. You should carefully consider the information set forth under the heading “Risk Factors.”
 
ABOUT GENCO
 
 We are a New York City-based company incorporated in the Marshall Islands. We transport iron ore, coal, grain, steel products and other drybulk cargoes along worldwide shipping routes. As of January 23, 2007 our fleet consists of 20 drybulk carriers, 16 of which we acquired from a subsidiary of The China National Cereals Oil and Foodstuffs Corp., or COFCO, a Chinese conglomerate, in December 2004 and during the first six months of 2005. The

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17th vessel was acquired in October 2005 from Western Bulk Carriers. We acquired an additional three vessels from affiliates of Franco Compania Naviera S.A. in November 2006. We have entered into an agreement to sell our oldest vessel, the Genco Glory, to Cloud Maritime S.A. We expect to deliver the vessel between February 1, 2007 and March 15, 2007, subject to customary closing conditions.
 
 We intend to grow our fleet through timely and selective acquisitions of vessels in a manner that is accretive to our cash flow. In connection with this growth strategy, we have negotiated a credit facility in the amount of $550 million that we expect to continue to use to acquire additional vessels that will be employed either in the spot or time charter market.
 
 As of January 23, 2007, assuming the sale of the Genco Glory, our fleet consists of seven Panamax, seven Handymax and five Handysize drybulk carriers, with an aggregate carrying capacity of approximately 988,000 dwt. All of the vessels in our fleet were built in Japanese shipyards with a reputation for constructing high-quality vessels. Our fleet contains four groups of sister ships, which are vessels of virtually identical sizes and specifications.

RATIOS OF EARNINGS TO FIXED CHARGES
 
The following table sets forth our unaudited historical ratios of earnings to fixed charges for the periods indicated below:

 	 	Nine Months
Ended
September 30, 	 	Year Ended
December 31, 	 	For the Period September 27
through
December 31, 	 	
 	 	 
2006	 	 
2005	 	 
2004	 	
Ratio of earnings to fixed charges(1)……………………...  	 	 
7.85x	 	4.55x  	 	 
4.75x	 	

___________
(1) For the purpose of determining the ratio of earnings to fixed charges, earnings consist of net income plus fixed charges. Fixed charges consist of interest expense on our credit facility, including unused commitment fees and amortization of expenses related to our credit facility.

As we have no preferred stock issued, a ratio of earnings to combined fixed charges and preferred dividends is not presented.
 
USE OF PROCEEDS
 
Unless we state otherwise in the applicable prospectus supplement, we expect to use the net proceeds from the sale of the securities for general corporate purposes, including capital expenditures, working capital, repayment or reduction of long-term and short-term debt and the financing of acquisitions and other business combinations. We may temporarily invest funds that we do not immediately require in marketable securities. We will not receive any of the proceeds from the sale of shares of common stock by any selling shareholders.
 
DESCRIPTION OF DEBT SECURITIES  
 
We may offer secured or unsecured debt securities, which may be convertible. Our debt securities and any related guarantees will be issued under an indenture to be entered into between us and a trustee. The debt securities will be structurally subordinated to all existing and future liabilities, including trade payables, of our subsidiaries that do not guarantee the debt securities, and the claims of creditors of those subsidiaries, including trade creditors, will have priority as to the assets and cash flows of those subsidiaries. In addition, any debt securities and any guarantees

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offered hereby will be effectively subordinated to any outstanding secured debt of us or any of our subsidiaries that guarantee the debt securities, respectively.
 
We have summarized certain general features of the debt securities from the indenture. A form of indenture is attached as an exhibit to the registration statement of which this prospectus forms a part. The following description of the terms of the debt securities and the guarantees sets forth certain general terms and provisions. The particular terms of the debt securities and guarantees offered by any prospectus supplement and the extent, if any, to which such general provisions may apply to the debt securities and guarantees will be described in the related prospectus supplement. Accordingly, for a description of the terms of a particular issue of debt securities, reference must be made to both the related prospectus supplement and to the following description.
 
General
 
The aggregate principal amount of debt securities that may be issued under the indenture is unlimited. The debt securities may be issued in one or more series as may be authorized from time to time.
 
Reference is made to the applicable prospectus supplement for the following terms of the debt securities (if applicable):  
 
 	·	title and aggregate principal amount;	
 
 	·	whether the securities will be senior or subordinated;	
 
 	·	applicable subordination provisions, if any;	
 
 	·	whether securities issued by us will be entitled to the benefit of any guarantee;	
 
 	·	conversion or exchange into other securities;	
 
 	·	whether securities issued by us will be secured or unsecured, and if secured, what the collateral will consist of;	
 
 	·	percentage or percentages of principal amount at which such securities will be issued;	
 
 	·	maturity date(s);	
 
 	·	interest rate(s) or the method for determining the interest rate(s);	
 
 	·	dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable;	
 
 	·	redemption (including upon a “change of control”) or early repayment provisions;	
 
 	·	authorized denominations;	
 
 	·	form;	
 
 	·	amount of discount or premium, if any, with which such securities will be issued;	
 
 	·	whether such securities will be issued in whole or in part in the form of one or more global securities;	
 
 	·	identity of the depositary for global securities;	

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	·	whether a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive securities of the series will be credited to the account of the persons entitled thereto;	
 
 	·	the terms upon which beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests in a definitive global security or for individual definitive securities;	
 
 	·	any covenants applicable to the particular debt securities being issued;	
 
 	·	any defaults and events of default applicable to the particular debt securities being issued;	
 
 	·	currency, currencies or currency units in which the purchase price for, the principal of and any premium and any interest on, such securities will be payable;	
 
 	·	time period within which, the manner in which and the terms and conditions upon which the purchaser of the securities can select the payment currency;	
 
 	·	securities exchange(s) on which the securities will be listed, if any;	
 
 	·	whether any underwriter(s) will act as market maker(s) for the securities;	
 
 	·	extent to which a secondary market for the securities is expected to develop;	
 
 	·	additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium and interest with respect to such securities to be due and payable;	
 
 	·	provisions relating to covenant defeasance and legal defeasance;	
 
 	·	provisions relating to satisfaction and discharge of the indenture;	
 
 	·	provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture; and	
 
 	·	additional terms not inconsistent with the provisions of the indenture.	
 
One or more series of debt securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. One or more series of debt securities may be variable rate debt securities that may be exchanged for fixed rate debt securities.
 
United States federal income tax consequences and special considerations, if any, applicable to any such series will be described in the applicable prospectus supplement.
 
Debt securities may be issued where the amount of principal and/or interest payable is determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of such securities may receive a principal amount or a payment of interest that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value of the applicable currencies, commodities, equity indices or other factors. Information as to the methods for determining the amount of principal or interest, if any, payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable on such date is linked and certain additional United States federal income tax considerations will be set forth in the applicable prospectus supplement.

5

The term “debt securities” includes debt securities denominated in U.S. dollars or, if specified in the applicable prospectus supplement, in any other freely transferable currency or units based on or relating to foreign currencies.
 
We expect most debt securities to be issued in fully registered form without coupons and in denominations of $1,000 and any integral multiples thereof. Subject to the limitations provided in the indenture and in the prospectus supplement, debt securities that are issued in registered form may be transferred or exchanged at the office of the trustee or the principal corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental charge payable in connection therewith.
 
Guarantees
 
Any debt securities may be guaranteed by one or more of our direct or indirect subsidiaries. Each prospectus supplement will describe any guarantees for the benefit of the series of debt securities to which it relates, including required financial information of the subsidiary guarantors, as applicable.
 
Global Securities
 
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary (the “depositary”) identified in the prospectus supplement. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual debt securities, a global security may not be transferred except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor. The specific terms of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security will be described in the applicable prospectus supplement.
 
Governing Law
 
The indenture and the debt securities shall be construed in accordance with and governed by the laws of the State of New York, without giving effect to any principles thereof relating to conflicts of law that would result in the application of the laws of any other jurisdiction.
 
DESCRIPTION OF CAPITAL STOCK
 
The following description of our common stock and preferred stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus. For the complete terms of our common stock and preferred stock, please refer to our amended and restated certificate of incorporation and our amended and restated bylaws that are incorporated by reference as exhibits to the registration statement which includes this prospectus. The Business Corporations Act of the Republic of the Marshall Islands, or the BCA, may also affect the terms of these securities. The terms we have summarized below will apply generally to any future common stock or preferred stock that we may offer. The terms of any common stock or preferred stock we offer under a prospectus supplement may differ from the terms we describe below, in which event we will describe the particular terms of any series of these securities in more detail in such prospectus supplement.
 
Authorized Capitalization
 
 Under our amended and restated articles of incorporation, as of January 23, 2007, our authorized capital stock consists of 100,000,000 shares of common stock, par value $0.01 per share, of which 25,505,462 shares are issued and outstanding, and 25,000,000 shares of preferred stock, par value $0.01 per share, of which no shares are issued and outstanding.

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Common Stock
 
Voting Rights
 
Each outstanding share of common stock entitles the holder to one vote on all matters submitted to a vote of shareholders. Except as required by law and by the terms of any series of preferred stock designated by the board of directors pursuant to our amended and restated certificate of incorporation, our common stock has the exclusive right to vote for the election of directors and for all other purposes. Our common stock votes together as a single class. 
 
Dividends
 
Subject to preferences that may be applicable to any outstanding shares of preferred stock, holders of shares of common stock are entitled to receive, ratably, all dividends, if any, declared by our board of directors out of funds legally available for dividends.
 
Liquidation Rights
 
Upon our dissolution or liquidation or the sale of all or substantially all our assets, after payment in full of all amounts required to be paid to creditors and to the holders of preferred stock having liquidation preferences, if any, the holders of our common stock will be entitled to receive, pro rata, our remaining assets available for distribution.
 
Other Rights
 
Holders of our common stock do not have conversion, redemption or preemptive rights to subscribe to any of our securities. The rights, preferences and privileges of holders of our common stock are subject to the rights of the holders of any shares of our preferred stock which we may issue in the future.
 
Transfer Agent
 
The transfer agent for our common stock is Mellon Investor Services LLC.
 
Listing
 
Our common stock is listed on the Nasdaq Global Select Market under the symbol “GSTL.”
 
Preferred Stock
 
Our amended and restated articles of incorporation authorize our board of directors to establish one or more series of preferred stock and to determine, with respect to any series of preferred stock, the terms and rights of that series, including:
 
 	·	the designation of the series;	
 
 	·	the number of shares of the series;	
 
 	·	the voting rights, if any, of the holders of the series; and	
 
 	·	the preferences and relative, participating, optional or other special rights, if any, of the series, and any qualifications, limitations or restrictions applicable to such rights.	
 
 	·	A prospectus supplement will describe the terms of any series of preferred stock being offered, including:	

7

 
 
	·	t he designation of the shares and the number of shares that constitute the series;  	
 
 	·	t he dividend rate (or the method of calculation thereof), if any, on the shares of the series and the priority as to payment of dividends with respect to other classes or series of our capital stock and the payment date of dividends;	
 
 	·	t he dividend periods (or the method of calculation thereof);	
 
 	·	t he date from which dividends on the preferred stock shall accumulate, if applicable;	
 
 	·	t he voting rights of the shares;	
 
 	·	t he liquidation preference and the priority as to payment of the liquidation preference with respect to other classes or series of our capital stock and any other rights of the shares of the series upon our liquidation or winding-up;	
 
 	·	w hether the preferred stock will rank senior or junior to or on a parity with any other class or series of preferred stock;	
 
 	·	w hether or not and on what terms the shares of the series will be subject to redemption or repurchase at our option;	
 
 	·	w hether and on what terms the shares of the series will be convertible into or exchangeable for other securities;	
 
 	·	t he provision of a sinking fund, if any, for the preferred stock;	
 
 	·	w hether the shares of the series of preferred stock will be listed on a securities exchange;	
 
 	·	the transfer agent for the series of preferred stock;	
 
 	·	a ny special United States federal income tax considerations applicable to the series; and	
 
 	·	a ny other preferences and rights and any qualifications, limitations or restrictions of the preferences and rights of the series.	
 
Limitations on Liability and Indemnification of Officers and Directors
 
The BCA authorizes corporations to limit or eliminate the personal liability of directors and officers to corporations and their shareholders for monetary damages for breaches of directors' fiduciary duties. Our amended and restated bylaws include a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director to the fullest extent permitted by applicable law.
 
Our amended and restated bylaws provide that we must indemnify our directors and officers to the fullest extent authorized by applicable law. We are also expressly authorized to advance certain expenses (including attorneys' fees and disbursements and court costs) to our directors and officers and carry directors' and officers' insurance providing indemnification for our directors, officers and certain employees for some liabilities. We believe that these indemnification provisions and insurance are useful to attract and retain qualified directors and executive officers.
 
The limitation of liability and indemnification provisions in our amended and restated bylaws may discourage shareholders from bringing a lawsuit against directors for breach of their fiduciary duties. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though

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such an action, if successful, might otherwise benefit us and our shareholders. In addition, your investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
 
There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought.
 
Anti-takeover Effects of Certain Provisions of Our Amended and Restated Articles of Incorporation and Amended and Restated Bylaws
 
 Several provisions of our amended and restated articles of incorporation and amended and restated bylaws, which are summarized below, may have anti-takeover effects. These provisions are intended to avoid costly takeover battles, lessen our vulnerability to a hostile change of control and enhance the ability of our board of directors to maximize shareholder value in connection with any unsolicited offer to acquire us. However, these anti-takeover provisions, which are summarized below, could also discourage, delay or prevent (1) the merger or acquisition of our company by means of a tender offer, a proxy contest or otherwise that a shareholder may consider in its best interest and (2) the removal of incumbent officers and directors.
 
Blank Check Preferred Stock
 
 Under the terms of our amended and restated articles of incorporation, our board of directors has the authority, without any further vote or action by our shareholders, to authorize our issuance of up to 25,000,000 shares of blank check preferred stock. Our board of directors may issue shares of preferred stock on terms calculated to discourage, delay or prevent a change of control of our company or the removal of our management.
 
Classified Board of Directors
 
 Our amended and restated articles of incorporation provide for the division of our board of directors into three classes of directors, with each class as nearly equal in number as possible, serving staggered, three-year terms beginning upon the expiration of the initial term for each class. Approximately one-third of our board of directors will be elected each year. This classified board provision could discourage a third party from making a tender offer for our shares or attempting to obtain control of us. It could also delay shareholders who do not agree with the policies of our board of directors from removing a majority of our board of directors for up to two years.
 
Election and Removal of Directors
 
 Our amended and restated articles of incorporation prohibit cumulative voting in the election of directors. Our amended and restated bylaws require parties other than the board of directors to give advance written notice of nominations for the election of directors. Our articles of incorporation also provide that our directors may be removed only for cause and only upon the affirmative vote of 66 2 / 3 % of the outstanding shares of our capital stock entitled to vote for those directors or by a majority of the members of the board of directors then in office. These provisions may discourage, delay or prevent the removal of incumbent officers and directors.
 
Limited Actions by Shareholders
 
 Our amended and restated articles of incorporation and our amended and restated bylaws provide that any action required or permitted to be taken by our shareholders must be effected at an annual or special meeting of shareholders or by the unanimous written consent of our shareholders. Our amended and restated articles of incorporation and our amended and restated bylaws provide that, subject to certain exceptions, our Chairman, President, or Secretary at the direction of the board of directors may call special meetings of our shareholders and the business transacted at the special meeting is limited to the purposes stated in the notice.

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Advance Notice Requirements for Shareholder Proposals and Director Nominations
 
 Our amended and restated bylaws provide that shareholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of shareholders must provide timely notice of their proposal in writing to the corporate secretary. Generally, to be timely, a shareholder's notice must be received at our principal executive offices not less than 150 days nor more than 180 days before the date on which we first mailed our proxy materials for the preceding year's annual meeting. Our amended and restated bylaws also specify requirements as to the form and content of a shareholder's notice. These provisions may impede shareholder's ability to bring matters before an annual meeting of shareholders or make nominations for directors at an annual meeting of shareholders.
 
Shareholder Rights Plan
 
General
 
 Each share of our common stock includes one right, or, collectively, the rights, that entitles the holder to purchase from us a unit consisting of one-thousandth of a share of our preferred stock at a purchase price of $25 per share, subject to specified adjustments. The rights are issued pursuant to a rights agreement between us and Mellon Investor Services LLC, as rights agent. Until a right is exercised, the holder of a right will have no rights to vote, receive dividends or any other shareholder rights by virtue of its ownership of such right.
 
 The rights may have anti-takeover effects. The rights may cause substantial dilution to any person or group that attempts to acquire us without the approval of our board of directors. As a result, the overall effect of the rights may be to render more difficult or discourage any attempt to acquire us. Because our board of directors can approve a redemption of the rights or a permitted offer, the rights should not interfere with a merger or other business combination approved by our board of directors. The adoption of the rights agreement was approved by our sole shareholder before our initial public offering.
 
We have summarized the material terms and conditions of the rights agreement and the rights below. For a complete description of the rights, we encourage you to read the rights agreement, which is incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part .
 
Detachment of the Rights
 
The rights are attached to all certificates representing our currently outstanding common stock and will attach to all common stock certificates we issue before the rights distribution date or the date on which the rights expire (or thereafter, in certain circumstances). The rights are not exercisable until after the rights distribution date and will expire at the close of business on February 21, 2015, unless we redeem or exchange them earlier as we describe below. The rights will separate from the common stock and a rights distribution date would occur, subject to specified exceptions, on the earlier of the following two dates:
 
 	·	ten days following a public announcement that a person or group of affiliated or associated persons, or an "acquiring person," has acquired or obtained the right to acquire beneficial ownership of 15% or more of our outstanding common stock; or	
 
 	·	ten business days following the announcement of a tender or exchange offer that would result, if closed, in a person's becoming an acquiring person.	
 
 Oaktree Capital Management, LLC, Peter Georgiopoulos and Fleet Acquisition LLC (so long as it does not acquire beneficial ownership of additional shares of common stock under certain circumstances) are excluded from the definition of "acquiring person" for purposes of the distribution of the rights, and therefore their ownership cannot trigger the distribution of the rights. Specified "inadvertent" owners that would otherwise become an acquiring person, including those who would have this designation as a result of repurchases of common stock by us, will not become acquiring persons as a result of those transactions.

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Our board of directors may defer the rights distribution date in some circumstances, and some inadvertent acquisitions will not result in a person becoming an acquiring person if the person promptly divests itself of a sufficient number of shares of common stock.
 
Until the rights distribution date:
 
 	·	our common stock certificates will evidence the rights, and the rights will be transferable only with those certificates; and	
 
 	·	any new common stock will be issued with rights, and new certificates will contain a notation incorporating the rights agreement by reference.	
 
As soon as practicable after the rights distribution date, the rights agent will mail certificates representing the rights to holders of record of our common stock at the close of business on that date. After the rights distribution date, only separate rights certificates will represent the rights.
 
We will not issue rights with any shares of common stock we issue after the rights distribution date, except as our board of directors may otherwise determine.
 
Flip-In Event
 
A “flip-in event” will occur under the rights agreement when a person becomes an acquiring person, as defined above.
 
If a flip-in event occurs and we do not redeem the rights as described under the heading "Redemption of Rights" below, each right, other than any right that has become void, as we describe below, will become exercisable at the time it is no longer redeemable for the number of shares of common stock, or, in some cases, cash, property or other of our securities, having a current market price equal to two times the exercise price of such right.
 
When a flip-in event occurs, all rights that then are, or in some circumstances that were, beneficially owned by or transferred to an acquiring person or specified related parties will become void in the circumstances the rights agreement specifies.
 
Flip-Over Event
 
A "flip-over event" will occur under the rights agreement when, at any time after a person has become an acquiring person:
 
 	·	we are acquired in a merger or other business combination transaction, subject to limited exceptions; or	
 
 	·	50% or more of our assets or earning power is sold or transferred.	
 
If a flip-over event occurs, each holder of a right, other than any right that has become void as we describe under the heading "Flip-In Event" above, will have the right to receive the number of shares of common stock of the acquiring company which has a current market price equal to two times the exercise price of such right.
 
Anti-Dilution
 
The number of outstanding rights associated with our common stock is subject to adjustment for any stock split, stock dividend or subdivision, combination or reclassification of our common stock occurring before the rights distribution date. With some exceptions, the rights agreement will not require us to adjust the exercise price of the rights until cumulative adjustments amount to at least 1% of the exercise price. It also will not require us to issue fractional shares of our preferred stock that are not integral multiples of one one-hundred thousandth of a share of

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preferred stock and, instead, we may make a cash adjustment based on the market price of the common stock on the last trading date before the date of exercise. The rights agreement reserves to us the right to require before the occurrence of any flip-in event or flip-over event that, on any exercise of rights, a number of rights must be exercised so that we will issue only whole shares of stock.
 
Redemption of Rights
 
At any time before the earlier of the date on which a person publicly announces that it has become an acquiring person or the date on which the rights expire, we may redeem the rights in whole, but not in part, at a redemption price of $0.01 per right. The redemption price is subject to adjustment for any stock split, stock dividend or similar transaction occurring before the date of redemption. At our option, we may pay that redemption price in cash or shares of common stock. The rights are not exercisable after a flip-in event until they are no longer redeemable. The rights will terminate immediately upon ordering the redemption and making the appropriate filing with the rights agent.
 
Exchange of Rights
 
 We may, at our option, subject to applicable laws, rules and regulations, exchange the rights (other than rights owned by an acquiring person or an affiliate or an associate of an acquiring person, which have become void), in whole or in part. The exchange will be at an exchange ratio of one share of common stock per right, subject to specified adjustments at any time after the occurrence of a flip-in event and before any person becoming the beneficial owner of 50% or more of the shares of common stock then outstanding.
 
Amendment of Terms of Rights
 
During the time the rights are redeemable, we may amend any of the provisions of the rights agreement in any way without the approval of the rights holders. Once the rights cease to be redeemable, we generally may amend the provisions of the rights agreement without the approval of the rights holders, only as follows:
 
 	·	to cure any ambiguity, defect or inconsistency;	
 
 	·	t o make changes that do not materially adversely affect the interests of holders of rights, excluding the interests of any acquiring person; or	
 
 	·	to shorten or lengthen any time period under the rights agreement, except that we cannot lengthen the time period governing redemption or any other time period, unless such lengthening is for the purpose of protecting, clarifying or enhancing the rights and benefits of the rights holders (other than an acquiring person).	
 
PLAN OF DISTRIBUTION
 
We may sell the securities to one or more underwriters for public offering and sale by them and may also sell the securities to investors directly or through agents. In addition, some of our shareholders may sell shares of our common stock under this prospectus in any of these ways. We will name any underwriter or agent involved in the offer and sale of securities in the applicable prospectus supplement. We and any selling shareholders have reserved the right to sell or exchange securities directly to investors on our or their own behalf in those jurisdictions where we are authorized to do so.
 
We or any selling shareholders may distribute the securities from time to time in one or more transactions:
 
 	·	at a fixed price or prices, which may be changed;	
 
 	·	at market prices prevailing at the time of sale;	

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	·	at prices related to such prevailing market prices; or   	
 
 	·	at negotiated prices.	
 
  We or any selling shareholders may also, from time to time, authorize dealers, acting as our agents, to offer and sell securities upon the terms and conditions set forth in the applicable prospectus supplement. In connection with the sale of securities, we or any selling shareholders, or the purchasers of securities for whom the underwriters may act as agents, may compensate underwriters in the form of underwriting discounts or commissions. If underwriters or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more transactions, at a fixed price or prices, which may be changed, or at market prices prevailing at the time of the sale, or at prices related to such prevailing market prices, or at negotiated prices. The securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms. Unless otherwise set forth in the prospectus supplement, the obligations of underwriters or dealers to purchase the securities offered will be subject to certain conditions precedent and the underwriters or dealers will be obligated to purchase all of the offered securities if any are purchased. Any public offering price and any discounts or concessions allowed or reallowed or paid by underwriters or dealers to other dealers may be changed from time to time.
 
We will describe in the applicable prospectus supplement any compensation we or any selling shareholders pay to underwriters or agents in connection with the offering of securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers. Dealers and agents participating in the distribution of securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We or any selling shareholders may enter into agreements to indemnify underwriters, dealers and agents against certain civil liabilities, including liabilities under the Securities Act, and to reimburse these persons for certain expenses.
 
To the extent that we or any selling shareholders make sales to or through one or more underwriters or agents in at-the-market offerings, we or any selling shareholders may do so pursuant to the terms of a distribution agreement between us (including any selling shareholders) and the underwriters or agents. If we or any selling shareholders engage in at-the-market sales pursuant to a distribution agreement, we or any selling shareholders will issue and sell shares of our common stock to or through one or more underwriters or agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we or any selling shareholders may sell shares on a daily basis in exchange transactions or otherwise as we or any selling shareholder may agree with the underwriters or agents. The distribution agreement will provide that any shares of our common stock sold will be sold at prices related to the then prevailing market prices for our common stock. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we or any selling shareholders also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our common stock or other securities. The terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this prospectus. In the event that any underwriter or agent acts as principal, or broker-dealer acts as underwriter, it may engage in certain transactions that stabilize, maintain or otherwise affect the price of our securities. We will describe any such activities in the prospectus supplement relating to the transaction.
 
We or any selling shareholders may enter into derivative or other hedging transactions with financial institutions. These financial institutions may in turn engage in sales of our common stock to hedge their position, deliver this prospectus in connection with some or all of those sales and use the shares covered by this prospectus to close out any short position created in connection with those sales. We or any selling shareholders may pledge or grant a security interest in some or all of our common stock covered by this prospectus to support a derivative or hedging position or other obligation and, if we or any selling shareholder defaults in the performance of our or its obligations, the pledgees or secured parties may offer and sell our common stock from time to time pursuant to this prospectus.
 
To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than we sold to them.

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In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
 
Certain of the underwriters, dealers or agents and their associates may engage in transactions with and perform services for us in the ordinary course of our business for which they receive compensation.
 
LEGAL MATTERS
 
Kramer Levin Naftalis & Frankel LLP, New York, New York, will provide us with opinions relating to certain matters in connection with offerings under this prospectus from time to time. Reeder & Simpson P.C. will provide us with opinions relating to matters concerning the law of the Republic of the Marshall Islands in connection with offerings under this prospectus.
 
EXPERTS
 
The consolidated financial statements incorporated in this prospectus by reference from our Annual Report on Form 10-K have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm, given upon their authority as experts in auditing and accounting .
 
WHERE YOU CAN FIND MORE INFORMATION
 
We are a reporting company and file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission, or the SEC. You may read and copy such material at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549-1004. Please call the SEC at 1-800-SEC-0330 for more information on the operation of the Public Reference Room. You can also find our SEC filings at the SEC’s web site at http://www.sec.gov.
 
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
 
The SEC allows us to “incorporate by reference” information that we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and some information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding such documents or portions thereof that are not deemed “filed” under the Exchange Act in accordance with the Exchange Act and applicable SEC rules and regulations):
 
 	·	Our Annual Report on Form 10-K for the year ended December 31, 2005;	
 
 	·	Our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2006, June 30, 2006, and September 30, 2006;	
 
 	·	Our Current Reports on Form 8-K filed on March 31, 2006, April 7, 2006, May 22, 2006, June 1, 2006, July 12, 2006, November 20, 2006, and December 22, 2006 (excluding any information exhibits furnished under either Item 2.02 or Item 7.01 thereof); and January 22, 2007.	

 

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	·	The description of our common stock and the rights associated with our common stock contained in our Registration Statement on Form S-1, Registration No. 333-124718, and our Registration Statement on Form 8-A, File No. 000-51442, filed on July 18, 2005.  	
 
We filed a registration statement on Form S-3 to register with the SEC the securities described in this prospectus. This prospectus is part of that registration statement. As permitted by SEC rules, this prospectus does not contain all of the information included in the registration statement and the accompanying exhibits and schedules we file with the SEC. You may refer to the registration statement and the exhibits and schedules for more information about us and our securities. The registration statement and exhibits and schedules are also available at the SEC’s Public Reference Room or through its web site.
 
You may request a copy of these filings at no cost, by writing or telephoning us at the following address:
 
Genco Shipping & Trading Limited
299 Park Avenue, 20th Floor
New York, New York 10171
(646) 443-8550
Attn: Investor Relations
 
You should rely only on the information contained or incorporated in this prospectus or any supplement. We have not authorized anyone else to provide you with different information. You should not rely on any other representations. Our affairs may change after this prospectus or any supplement is distributed. You should not assume that the information in this prospectus or any supplement is accurate as of any date other than the date on the front of those documents. You should read all information supplementing this prospectus.

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Part II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
Item 14. Other Expenses of Issuance and Distribution
 
All the amounts shown are estimates except the Securities and Exchange Commission registration fee.
 
                 Item	 	Amount	 	
Securities and Exchange Commission Registration Fee	 	$	53,500	 	
Legal Fees and Expenses	 	$	50,000	 	
Printing Expenses	 	$	30,000	 	
Accounting Fees and Expenses	 	$	15,000	 	
 	 	 	 	 	
     Total  	 	$	148,500	 	

Item 15. Indemnification of Directors and Officers
 
Our amended and restated bylaws generally provide that every director and officer of our company shall be indemnified out of our funds to the extent provided by Section 60 of the BCA. Section 60 of the BCA provides that Marshall Islands corporations may indemnify any of their directors or officers who are or are threatened to be a party to any legal action resulting from fulfilling their duties to the corporation against reasonable expenses, judgments and fees (including attorneys' fees) incurred in connection with the legal action if the director or officer acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of no contest, or its equivalent, will not create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe his conduct was unlawful. However, no indemnification will be permitted in cases where it is determined that the director or officer was liable for negligence or misconduct in the performance of his duty to the corporation, unless the court in which the legal action was brought determines that the person is fairly and reasonably entitled to indemnity, and then only for the expenses that the court deems proper. A corporation is permitted to advance payment for expenses occurred in defense of an action if its board of directors decides to do so.

In addition, Marshall Islands corporations may purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation against any liability asserted against him and incurred by him in
his capacity as a director or officer whether or not the corporation would have the power to indemnify him against such liability under the provisions of the BCA. We currently have directors' and officers' liability insurance to provide our directors and officers with insurance coverage for losses arising from claims based on breaches of duty, negligence, errors and other wrongful acts.

It is currently unclear as a matter of law what impact these provisions will have regarding securities law violations. The Commission takes the position that indemnification of directors, officers and controlling persons against liabilities arising under the Securities Act is against public policy as expressed in the Securities Act and therefore is unenforceable.

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Item 16. Exhibits
 
	1.1	Form(s) of Underwriting Agreement with respect to Debt Securities.*	
 
	1.2	Form of Underwriting Agreement with respect to Preferred Stock.*	
 
	1.3	Form of Underwriting Agreement with respect to Common Stock.*	
 
	3.1	Amended and Restated Articles of Incorporation of the Company as adopted July 5, 2005 (incorporated by reference to Exhibit 3.1 to the registrant’s Registration Statement on Form S-1 (Amendment No. 2) (No. 333-124718) filed on July 6, 2005).	
 
	3.2	Amended and Restated Bylaws of the Company as adopted April 4, 2006 (incorporated by reference to Exhibit 3.2 to the registrant’s report on Form 8-K dated April 4, 2006 (File No. 000-5142)).	
 
	3.3	Articles of Amendment of Articles of Incorporation of the Company as adopted July 21, 2005 (incorporated by reference to Exhibit 3.3 to the registrant’s Registration Statement on Form S-1 (Amendment No. 6) (No. 333-124718) filed on July 21, 2005).	
 
	3.4	Articles of Amendment of Articles of Incorporation of the Company as adopted May 18, 2006 (incorporated by reference to Exhibit 3.1 to the registrant’s report on Form 8-K dated May 18, 2006 (File No. 000-5142)).	
 
	4.1	Form of Indenture.	
 
	4.2	Form(s) of Debt Securities.*	
 
	4.3	Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the registrant’s Registration Statement on Form S−1 (Amendment No. 3) (No. 333−124718) filed on July 18, 2005).	
 
	4.4	Form of Shareholders’ Rights Agreement (incorporated by reference to Exhibit 4.2 to the registrant’s Registration Statement on Form S−1 (Amendment No. 3) (No. 333−124718) filed on July 18, 2005).	
 
	4.5	Certificate of Designation of Preferred Stock.*	
 
	4.6	Form of Preferred Stock Certificate.*	
 
	5.1	Opinion of Reeder & Simpson P.C., Marshall Islands counsel to Genco, as to the legality of securities being registered.	
 
	5.2	Opinion of Kramer Levin Naftalis & Frankel LLP, U.S. counsel to Genco, as to the legality of securities being registered.	
 
	12.1	Computation of Ratio of Earnings to Fixed Charges.	
 
	23.1	Consent of Reeder & Simpson P.C. (included as part of Exhibit 5.1).	
 
	23.2	Consent of Kramer Levin Naftalis & Frankel LLP (included as part of Exhibit 5.2)	

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	23.3	Consent of Deloitte & Touche LLP.    	
 
	24.1	Power of attorney (included on signature page).	
 
	25.1	Statement of Eligibility of Trustee on Form T-1.*	
 
________________________
*	To be filed, if necessary, by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with the offering of securities registered hereunder.	
 
Item 17. Undertakings
 
(a) The undersigned registrant hereby undertakes:
 
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
 
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
 
provided, however , that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
 
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
 
(i) Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement; and
 
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer

 

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and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however , that no statement made in a registration statement or prospectus that is part of this registration statement or made in a document incorporated or deemed incorporated by reference into this registration statement or prospectus that is part of this registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in this registration statement or prospectus that was part of this registration statement or made in any such document immediately prior to such effective date.

(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
 
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
 
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
 
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
 
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(c) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
 
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on January 23, 2007.
 
      GENCO SHIPPING & TRADING LIMITED

By: /s/ John C. Wobensmith                         
John C. Wobensmith, Chief Financial Officer

POWER OF ATTORNEY  

 Each person whose signature appears below constitutes and appoints, jointly and severally, Robert Gerald Buchanan and John C. Wobensmith, his true and lawful attorneys-in-fact and agents, each of whom may act alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-3, and to sign any related registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, and all post-effective amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
 
      Name                                     Title                                    Date
 
/s/ Peter C. Georgiopoulos            Chairman of the Board and Director             January 23, 2007
Peter C. Georgiopoulos    

/s/ Robert Gerald Buchanan                 President                                    January 23, 2007
Robert Gerald Buchanan                   (Principal Executive Officer)
 
/s/ John C. Wobensmith                   Chief Financial Officer, Secretary               January 23, 2007
John C. Wobensmith                          and Treasurer (Principal Financial
                                         and Accounting Officer)
 
/s/ Stephen A. Kaplan                     Director                                     January 23, 2007
Stephen A. Kaplan    

/s/ Nathaniel C.A. Kramer                   Director                                    January 23, 2007
Nathaniel C.A. Kramer

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/s/ Harry A. Perrin                        Director                                     January 23, 2007
Harry A. Perrin

/s/ Mark F. Polzin                        Director                                     January 23, 2007
Mark F. Polzin

/s/ Robert C. North                    Director                                     January 23, 2007
Rear Admiral Robert C. North,
USCG (ret.)

/s/ Basil G. Mavroleon                     Director                                     January 23, 2007
Basil G. Mavroleon

 
 
II-6

EXHIBIT INDEX

	1.1	Form(s) of Underwriting Agreement with respect to Debt Securities.*	
 
	1.2	Form of Underwriting Agreement with respect to Preferred Stock.*	
 
	1.3	Form of Underwriting Agreement with respect to Common Stock.*	
 
	3.1	Amended and Restated Articles of Incorporation of the Company as adopted July 5, 2005 (incorporated by reference to Exhibit 3.1 to the registrant’s Registration Statement on Form S-1 (Amendment No. 2) (No. 333-124718) filed on July 6, 2005).	
 
	3.2	Amended and Restated Bylaws of the Company as adopted April 4, 2006 (incorporated by reference to Exhibit 3.2 to the registrant’s report on Form 8-K dated April 4, 2006 (File No. 000-5142)).	
 
	3.3	Articles of Amendment of Articles of Incorporation of the Company as adopted July 21, 2005 (incorporated by reference to Exhibit 3.3 to the registrant’s Registration Statement on Form S-1 (Amendment No. 6) (No. 333-124718) filed on July 21, 2005).	
 
	3.4	Articles of Amendment of Articles of Incorporation of the Company as adopted May 18, 2006 (incorporated by reference to Exhibit 3.1 to the registrant’s report on Form 8-K dated May 18, 2006 (File No. 000-5142)).	
 
	4.1	Form of Indenture.	
 
	4.2	Form(s) of Debt Securities.*	
 
	4.3	Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the registrant’s Registration Statement on Form S−1 (Amendment No. 3) (No. 333−124718) filed on July 18, 2005).	
 
	4.4	Form of Shareholders’ Rights Agreement (incorporated by reference to Exhibit 4.2 to the registrant’s Registration Statement on Form S−1 (Amendment No. 3) (No. 333−124718) filed on July 18, 2005).	
 
	4.5	Certificate of Designation of Preferred Stock.*	
 
	4.6	Form of Preferred Stock Certificate.*	
 
	5.1	Opinion of Reeder & Simpson P.C., Marshall Islands counsel to Genco, as to the legality of securities being registered.	
 
	5.2	Opinion of Kramer Levin Naftalis & Frankel LLP, U.S. counsel to Genco, as to the legality of securities being registered.	
 
	12.1	Computation of Ratio of Earnings to Fixed Charges.	
 
	23.1	Consent of Reeder & Simpson P.C. (included as part of Exhibit 5.1).	
 
	23.2	Consent of Kramer Levin Naftalis & Frankel LLP (included as part of Exhibit 5.2)	
 
	23.3	Consent of Deloitte & Touche LLP.    	

 

 

	24.1	Power of attorney (included on signature page).	
 
	25.1	Statement of Eligibility of Trustee on Form T-1.*	

 
________________________
*	To be filed, if necessary, by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with the offering of securities registered hereunder.	

 

 

 

Exhibit 4.1

 

GENCO SHIPPING & TRADING LIMITED
 
________________

INDENTURE

DATED AS OF [       ], 200_

________________

[       ]

Trustee
________________

 

 

CROSS-REFERENCE TABLE*
 
Trust Indenture
Act Section	 	Indenture Section	
 	 	 	
310(a)(1)
 	 	7.10
 	
(a)(2)
 	 	7.10
 	
(a)(3)
 	 	N.A.
 	
(a)(4)
 	 	N.A.
 	
(a)(5)
 	 	7.10
 	
(b)
 	 	7.10
 	
(c)
 	 	N.A.
 	
311(a)
 	 	7.11
 	
(b)
 	 	7.11
 	
(c)
 	 	N.A.
 	
312(a)
 	 	2.06
 	
(b)
 	 	11.03
 	
(c)
 	 	11.03
 	
313(a)
 	 	7.06
 	
(b)(2)
 	 	7.06; 7.07
 	
(c)
 	 	7.06; 11.02
 	
(d)
 	 	7.06
 	
314(a)
 	 	4.03; 11.02
 	
(b)
 	 	N.A.
 	
(c)(1)
 	 	11.04
 	
(c)(2)
 	 	11.04
 	
(c)(3)
 	 	N.A.

 

 
 
Trust Indenture
Act Section	 	Indenture Section	
 
(d)
 	 	N.A.
 	
(e)
 	 	11.05
 	
(f)
 	 	N.A.
 	
315(a)
 	 	7.01
 	
(b)
 	 	7.05; 11.02
 	
(c)
 	 	7.01
 	
(d)
 	 	7.01
 	
(e)
 	 	6.11
 	
316(a) (last sentence)
 	 	2.10
 	
(a)(1)(A)
 	 	6.05
 	
(a)(1)(B)
 	 	6.04
 	
(a)(2)
 	 	N.A.
 	
(b)
 	 	6.07
 	
(c)
 	 	2.13
 	
317(a)(1)
 	 	6.08
 	
(a)(2)
 	 	6.09
 	
(b)
 	 	2.05
 	
318(a)
 	 	11.01
 	
(b)
 	 	N.A.
 	
(c)
 	 	11.01
 	
N.A. means not applicable.

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

TABLE OF CONTENTS
 
                                                                                                    Page
 
ARTICLE 1.	DEFINITIONS AND INCORPORATION BY REFERENCE                                                   1	 	
 	Section 1.01	Definitions                                                                                              1	 	
 	Section 1.02	Other Definitions                                                                                       6	 	
 	Section 1.03	Incorporation by Reference of Trust Indenture Act                                                         6    	 	
 	Section 1.04	Rules of Construction                                                                               7	 	
 
ARTICLE 2.	THE NOTES                                                                                             7          	 	
 	Section 2.01	Issuable in Series                                                                                     7	 	
 	Section 2.02	Establishment of Terms of Series of Notes                                                             8	 	
 	Section 2.03	Execution and Authentication                                                                         10	 	
 	Section 2.04	Registrar and Paying Agent                                                                         10     	 	
 	Section 2.05	Paying Agent to Hold Money in Trust                                                                 11	 	
 	Section 2.06	Holder Lists                                                                                           11	 	
 	Section 2.07	Transfer and Exchange                                                                                11	 	
 	Section 2.08	Replacement Notes                                                                                    12	 	
 	Section 2.09	Outstanding Notes                                                                                    12	 	
 	Section 2.10	Treasury Notes                                                                                  12	 	
 	Section 2.11	Temporary Notes                                                                                    13	 	
 	Section 2.12	Cancellation                                                                                           13	 	
 	Section 2.13	Defaulted Interest                                                                                   13	 	
 	Section 2.14	Global Notes                                                                                     13	 	
 	Section 2.15	CUSIP Number                                                                        14      	 	
 
ARTICLE 3.	REDEMPTION AND PREPAYMENT                                                                   15	 	
 	Section 3.01	Notice to Trustee                                                                                   15	 	
 	Section 3.02	Selection of Notes to Be Redeemed                                                                  15	 	
 	Section 3.03	Notice of Redemption                                                                              15	 	
 	Section 3.04	Effect of Notice of Redemption                                                                        16 	 	
 	Section 3.05	Deposit of Redemption Price                                                                        16	 	
 	Section 3.06	Notes Redeemed in Part                                                                              17	 	
 
ARTICLE 4.	COVENANTS                                                                                       17	 	
 	Section 4.01	Payment of Principal and Interest                                                                        17	 	
 	Section 4.02	Maintenance of Office or Agency                                                                     17	 	
 	Section 4.03	Reports                                                                                          18	 	
 	Section 4.04	Compliance Certificate                                                                             18	 	
 	Section 4.05	Taxes                                                                                                19	 	
 	Section 4.06	Stay, Extension and Usury Laws                                                                         19	 	
 	Section 4.07	Corporate Existence                                                                                   19	 	
 
ARTICLE 5.	SUCCESSORS                                                                                     19	 	
 	Section 5.01	Merger, Consolidation or Sale of Assets                                                                 19	 	
 
i

 	Section 5.02	Successor Corporation Substituted                                                                  20	 	
 
ARTICLE 6.	DEFAULTS AND REMEDIES                                                                          21	 	
 	Section 6.01	Events of Default                                                                                    21	 	
 	Section 6.02	Acceleration                                                                                          22	 	
 	Section 6.03	Other Remedies                                                                                   22	 	
 	Section 6.04	Waiver of Past Defaults                                                                              23	 	
 	Section 6.05	Control by Majority                                                                                   23	 	
 	Section 6.06	Limitation on Suits                                                                                     23	 	
 	Section 6.07	Rights of Holders of Notes to Receive Payment                                                           24	 	
 	Section 6.08	Collection Suit by Trustee                                                                              24	 	
 	Section 6.09	Trustee May File Proofs of Claim                                                                        24	 	
 	Section 6.10	Priorities                                                                                          25  	 	
 	Section 6.11	Undertaking for Costs                                                                              25	 	
 
ARTICLE 7.	TRUSTEE                                                                                           25	 	
 	Section 7.01	Duties of Trustee                                                                                    25	 	
 	Section 7.02	Rights of Trustee                                                                                    26	 	
 	Section 7.03	Individual Rights of Trustee                                                                         27	 	
 	Section 7.04	Trustee’s Disclaimer                                                                                28	 	
 	Section 7.05	Notice of Defaults                                                                                    28	 	
 	Section 7.06	Reports by Trustee to Holders of the Notes                                                             28	 	
 	Section 7.07	Compensation and Indemnity                                                                          28	 	
 	Section 7.08	Replacement of Trustee                                                                              29	 	
 	Section 7.09	Successor Trustee by Merger, Etc.                                                                   30	 	
 	Section 7.10	Eligibility; Disqualification                                                                           30	 	
 	Section 7.11	Preferential Collection of Claims Against Company                                                       31	 	
 	Section 7.12	Trustee’s Application for Instructions from the Company                                                 31	 	
 
ARTICLE 8.	LEGAL DEFEASANCE AND COVENANT DEFEASANCE                                               31	 	
 	Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance                                                 31	 	
 	Section 8.02	Legal Defeasance and Discharge                                                                        31	 	
 	Section 8.03	Covenant Defeasance                                                                                 32	 	
 	Section 8.04	Conditions to Legal or Covenant Defeasance                                                              32	 	
 	Section 8.05	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions               33	 	
 	Section 8.06	Repayment to Company                                                                                 34 	 	
 	Section 8.07	Reinstatement                                                                                    34	 	
 
ARTICLE 9.	AMENDMENT, SUPPLEMENT AND WAIVER                                                       35	 	
 	Section 9.01	Without Consent of Holders of Notes                                                                   35                                 	 	
 	Section 9.02	With Consent of Holders of Notes                                                                       36	 	
 	Section 9.03	Compliance with Trust Indenture Act                                                                    37	 	
 	Section 9.04	Revocation and Effect of Consents                                                                      37	 	
 	Section 9.05	Notation on or Exchange of Notes                                                                    3 7	 	
 	Section 9.06	Trustee Protected                                                                                    37	 	
 
ii

 	ARTICLE 10.	SATISFACTION AND DISCHARGE                                                                           37	 	
 	Section 10.01	Satisfaction and Discharge                                                                              37	 	
 	Section 10.02	Application of Trust Money                                                                               38	 	
 
ARTICLE 11.	MISCELLANEOUS                                                                                     39	 	
 	Section 11.01	Trust Indenture Act Controls                                                                             39	 	
 	Section 11.02	Notices                                                                                                 39	 	
 	Section 11.03	Communication by Holders of Notes with Other Holders of Notes                                               40	 	
 	Section 11.04	Certificate and Opinion as to Conditions Precedent                                                            40	 	
 	Section 11.05	Statements Required in Certificate                                                                          40	 	
 	Section 11.06	Rules by Trustee and Agents                                                                                40	 	
 	Section 11.07	Calculation of Foreign Currency Amounts                                                                   41	 	
 	Section 11.08	No Personal Liability of Directors, Officers, Employees and Stockholders                                      41	 	
 	Section 11.09	Governing Law                                                                                          41	 	
 	Section 11.10	No Adverse Interpretation of Other Agreements                                                              41	 	
 	Section 11.11	Successors                                                                                            41	 	
 	Section 11.12	Severability                                                                                             41	 	
 	Section 11.13	Counterpart Originals                                                                                     41	 	
 	Section 11.14	Table of Contents, Headings, Etc.                                                                      42	 	
 
ARTICLE 12.	SINKING FUNDS                                                                                      42	 	
 	Section 12.01	Applicability of Article                                                                                   42	 	
 	Section 12.02	Satisfaction of Sinking Fund Payments with Notes                                                          42	 	
 	Section 12.03	Redemption of Notes for Sinking Fund                                                                   43	 	
 
ARTICLE 13.	GUARANTEES                                                                                         43	 	
 	Section 13.01	Guarantee                                                                                             43	 	

iii

INDENTURE dated as of [ ], 200_ between Genco Shipping & Trading Limited, a Marshall Islands corporation (the “ Company ”), the guarantors, if any, listed on the signature pages hereto (the “ Guarantors ”) and [ ], 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 of the Notes issued under this Indenture.
 
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
 
Section 1.01   Definitions.
 
“ 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,” as used with respect to any Person, means 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; provided , that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be in control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
 
“ Agent ” means any Registrar, Paying Agent or co-registrar.
 
“ Attributable Debt ” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
 
“ Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
 
“ Board of Directors ” means:
 
 	(1)	with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;	
 
 	(2)	with respect to a partnership, the Board of Directors of the general partner of the partnership;	
 
 	(3)	with respect to a limited liability company, the managing member or members or any controlling committee of managing members or managers thereof; and	
 
 	(4)	with respect to any other Person, the board or committee of such Person serving a similar function.	

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
 
“ 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 ca pital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP.
 
“Capital Stock” means:
 
 	(1)	in the case of a corporation, corporate stock;	
 
 	(2)	in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents, however designated, of corporate stock;	
 
 	(3)	in the case of a partnership or limited liability company, partnership or membership interests, whether general or limited; and	
 
 	(4)	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.	
 
“ Company ” means Genco Shipping & Trading Limited, a Marshall Islands corporation and any and all successors thereto.
 
“ Company Order ” means a written order signed in the name of the Company by the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company.
 
“ 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.
 
“ Custodian ” means the Trustee, as custodian with respect to the Global Notes, or any successor entity thereto.
 
“ 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.
 
“ Depositary ” means, with respect to the Notes of any Series issuable or issued in whole or in part in the form of one or more Global Notes, the person designated as Depositary for such Series by the Compan y , which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Notes of any Series shall mean the Depositary with respect to the Notes of such Series.

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“Discount Note ” means any Note that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02.
 
“ Dollars ” and “ $ ” means the currency of The United States of America.
 
“ ECU ” means the European Currency Unit as determined by the Commission of the European Union.
 
“ 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.
 
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
 
“ Foreign Currency ” means any currency or currency unit issued by a government other than the government of The United States of America.
 
“ 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 and statements and pronouncements of the Financial Accounting Standards Board and such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are applicable as of the date of this Indenture.
 
“ Global Note ” or “ Global Notes ” means a Note or Notes, as the case may be, in the form established pursuant to Section 2.02 evidencing all or part of a Series of Notes, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.
 
“ Government Securities ” means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.
 
“ 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, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.
 
“ Guarantor ” means each of the parties identified pursuant to Section 2.2.
 
“ Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person under:
 
 	(1)	interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; and	

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 	(2)	other agreements or arrangements in respect of such Person’s exposure to fluctuations in commodity prices, currency exchange rates or interest rates and, in each case, not entered into for speculative purposes.	
 
“ Holder ” means a Person in whose name a Note is registered.
 
“ Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:
 
 	(1)	in respect of borrowed money;	
 
 	(2)	evidenced by bonds, notes, debentures or similar instruments or letters of credit, or reimbursement agreements in respect thereof;	
 
 	(3)	in respect of banker’s acceptances;	
 
 	(4)	representing Capital Lease Obligations;	
 
 	(5)	representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or	
 
 	(6)	representing any Hedging Obligations,	
 
if and to the extent any of the preceding items, other than letters of credit and Hedging Obligations, would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person, whether or not such Indebtedness is assumed by the specified Person, and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person or any liability of any person, whether or not contingent and whether or not it appears on the balance sheet of such Person.
 
The amount of any Indebtedness outstanding as of any date shall be:
 
 	(1)	the accreted value of the Indebtedness, in the case of any Indebtedness that does not require the current payment of interest; and	
 
 	(2)	principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.	
 
“ Indenture ” means this Indenture, as amended, supplemented or restated from time to time and shall include the form and terms of particular Series of Notes established as contemplated hereunder.
 
“ Legal Holiday ” means a Saturday, a Sunday or a day on which banking institutions in the City of New York, the city in which the principal office of the Trustee is located or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment

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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 on such payment for the intervening period.
 
“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of a n y 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 or any lease in the nature thereof; provided that in no event shall an operating lease be deemed to constitute a Lien.
 
“ Notes ” means notes or other debt instruments of the Company of any Series issued under this Indenture.
 
“ 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 Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.
 
“ Officer’s Certificate ” means a certificate signed on behalf of the Company by an Officer of the Company that meets the requirements of Sections 11.04 and 11.05 hereof.
 
“ Opinion of Counsel ” means an opinion from legal counsel who is acceptable to the Trustee, that meets the requirements of Sections 11.04 and 11.05 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
 
“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or any agency or political subdivision thereof or any other entity.
 
“ Responsible Officer ” when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
 
“ SEC ” means the Securities and Exchange Commission.
 
“ Securities Act ” means the Securities Act of 1933, as amended.
 
“ Series ” or “ Series of Notes ” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.01 and 2.02 hereof.
 
“ Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any

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contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
 
“ Subsidiary ” means, with respect to any specified Person:
 
 	(1)	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	
 
 	(2)	partnership (a) the sole general partner or the managing general partner of which is such Person or an entity described in clause (1) and related to such Person or (b) the only general partners of which are such Person or one or more entities described in clause (1) and related to such Person, or any combination thereof.	
 
“ TIA ” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however , that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.
 
“ Trustee ” means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Notes of any Series shall mean the Trustee with respect to Notes of that Series.
 
“ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
 
Section 1.02   Other Definitions
 
Term	 	Defined in
Section	
“Authentication Order”	 	2.03	
“Covenant Defeasance”	 	8.03	
“Event of Default”	 	6.01	
“Legal Defeasance”	 	8.02	
“Mandatory Sinking Fund Payment”	 	12.01	
“Optional Sinking Fund Payment”	 	12.01	
“Paying Agent”	 	2.04	
“Registrar”	 	2.04	
 	 	 	
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.

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The following TIA terms used in this Indenture have the following meanings:
 
“ Commission ” means the SEC;
 
“ 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 indenture securities 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 SEC rule under the TIA have the meanings so assigned to them.
 
Section 1.04   Rules of Construction.
 
Unless the context otherwise requires:
 
 	(1)	a term has the meaning assigned to it;	
 
 	(2)	an accounting term not otherwise defined herein 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;	
 
 	(5)	apply to successive events and transactions; and	
 
 	(6)	references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time.	
 
ARTICLE 2.
THE NOTES
 
Section 2.01   Issuable in Series. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. The Notes may be issued in one or more Series. All Notes of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Notes of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest

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rate, maturity date, record date or date from which interest shall accrue) are to be determined. Notes may differ between Series in respect of any matters, provided that all Series of Notes shall be equally and ratably entitled to the benefits of the Indenture.
 
Section 2.02   Establishment of Terms of Series of Notes.
 
At or prior to the issuance of any Notes within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.02(a) and either as to such Notes within the Series or as to the Series generally in the case of Subsections 2.02(b) through 2.02(v)) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture or an Officer’s Certificate pursuant to authority granted under a Board Resolution:
 
(a)   the title of the Series (which shall distinguish the Notes of that particular Series from the Notes of any other Series);
 
(b)   the price or prices (expressed as a percentage of the principal amount thereof) at which the Notes of the Series will be issued;
 
(c)   any limit upon the aggregate principal amount of the Notes of the Series which may be authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of the Series pursuant to Sections 2.07, 2.08, 2.11, 3.06 or 9.05);
 
(d)   the date or dates on which the principal of the Notes of the Series is payable;
 
(e)   the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Notes of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
 
(f)   the place or places where the principal of and interest, if any, on the Notes of the Series shall be payable, where the Notes of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes of such Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means;
 
(g)   if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Notes of the Series may be redeemed, in whole or in part, at the option of the Company;
 
(h)   the obligation, if any, of the Company to redeem or purchase the Notes of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Notes of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
 
(i) the dates, if any, on which and the price or prices at which the Notes of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;

 

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(j)   if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Notes of the Series shall be issuable;
 
(k)   the forms of the Notes of the Series in bearer or fully registered form (and, if in fully registered form, whether the Notes will be issuable as Global Notes);
 
(l)   if other than the principal amount thereof, the portion of the principal amount of the Notes of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02;
 
(m)   the currency of denomination of the Notes of the Series, which may be Dollars or any Foreign Currency, including, but not limited to, the ECU, and if such currency of denomination is a composite currency other than the ECU, the agency or organization, if any, responsible for overseeing such composite currency;
 
(n)   the designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Notes of the Series will be made;
 
(o)   if payments of principal of or interest, if any, on the Notes of the Series are to be made in one or more currencies or currency units other than that or those in which such Notes are denominated, the manner in which the exchange rate with respect to such payments will be determined;
 
(p)   the manner in which the amounts of payment of principal of or interest, if any, on the Notes of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
 
(q)   the provisions, if any, relating to any security or guarantee provided for the Notes of the Series, and any subordination in right of payment, if any, of the Notes of the Series;
 
(r)   the provisions, if any, relating to any conversion or exchange right of the Notes of the Series;
 
(s)   any addition to or change in the Events of Default which applies to any Notes of the Series and any change in the right of the Trustee or the requisite Holders of such Notes to declare the principal amount thereof due and payable pursuant to Section 6.02;
 
(t)   any addition to or change in the covenants set forth in Articles 4 or 5 which applies to Notes of the Series;
 
(u)   any other terms of the Notes of the Series (which may modify or delete any provision of this Indenture insofar as it applies to such Series);

(v) any depositories, authenticating agents, paying agents, registrars, calculation agents, exchange rate agents, conversion agents or other agents with respect to Notes of such Series if other than those appointed herein; and

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(w)   the conditions, if any, under which a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is guaranteed by the Company or any of its Subsidiaries) will constitute an Event of Default with respect to Notes of the Series.
 
All Notes of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of additional Notes of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officer’s Certificate.
 
Section 2.03   Execution and Authentication.
 
One Officer shall sign the Notes for the Company by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time such Note is authenticated, such 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, as applicable, has been authenticated under this Indenture.
 
The Trustee shall, upon a written order of the Company signed by one Officer (an “ Authentication Order ”), authenticate Notes for original issue in accordance with this Indenture.
 
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 2.04   Registrar and Paying Agent.
 
The Company shall maintain an office or agency 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 with respect to each Series of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing 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

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Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
 
The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
 
Section 2.05   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 of any Series of Notes, or the Trustee, all money held by the Paying Agent for the payment of principal or interest on the Series of Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of Notes 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 2.06   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 Holders of each Series of Notes and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee, at least by the record date for the interest payable on any 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 Holders of each Series of Notes and the Company shall otherwise comply with TIA Section 312(a).
 
Section 2.07   Transfer and Exchange.
 
Where Notes of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Notes at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), 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 tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.05).
 
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Notes of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Notes of that Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Notes of any Series selected, called or being called for

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redemption as a whole or the portion being redeemed of any such Notes selected, called or being called for redemption in part.
 
Section 2.08   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 of the same Series 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 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 of any Series 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 of that Series duly issued hereunder.
 
Section 2.09   Outstanding Notes.
 
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.10 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 2.08 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
 
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest 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 2.10   Treasury Notes.
 
In determining whether the Holders of the required principal amount of Notes of a Series 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 of a Series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.

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Section 2.11  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.
 
Section 2.12   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 canceled Notes (subject to the record retention requirement of the Exchange Act). 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 2.13   Defaulted Interest.
 
If the Company defaults in a payment of interest on a Series of 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 of the Series 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 notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders of the Series a notice that states the special record date, the related payment date and the amount of such interest to be paid.
 
Section 2.14   Global Notes.
 
(a)   Terms of Notes . A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Notes of a Series shall be issued in whole or in part in the form of one or more Global Notes and the Depositary for such Global Note or Notes.
 
(b)   Transfer and Exchange . Notwithstanding any provisions to the contrary contained in Section 2.07 hereof and in addition thereto, any Global Note shall be exchangeable pursuant to Section 2.07 of the Indenture for Notes registered in the names of Holders other than the Depositary for such Note or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case,

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the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Note shall be so exchangeable or (iii) an Event of Default with respect to the Notes represented by such Global Note shall have happened and be continuing. Any Global Note that is exchangeable pursuant to the preceding sentence shall be exchangeable for Notes registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Note with like tenor and terms.
 
Except as provided in this Section 2.14(b), a Global Note may not be transferred except as a whole by the Depositary with respect to such Global Note to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
 
(c)   Legend . Any Global Note issued hereunder shall bear a legend in substantially the following form:
 
“This Note is a Global Note within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee of the Depositary. This Note is exchangeable for Notes registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, 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 a successor Depositary.”
 
(d)   Acts of Holders . The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
 
(e)   Payments . Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the principal of and interest, if any, on any Global Note shall be made to the Holder thereof.
 
(f)   Consents, Declaration and Directions . Except as provided in Section 2.14(e), the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Notes of such Series represented by a Global Note as shall be specified in a written statement of the Depositary with respect to such Global Note, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.
 
Section 2.15   CUSIP Number.
 
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

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the Notes, and any such redemption shall not be affected by any defect in or the omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers.
 
ARTICLE 3.
REDEMPTION AND PREPAYMENT
 
Section 3.01   Notice to Trustee.
 
The Company may, with respect to any Series of Notes, reserve the right to redeem and pay the Series of Notes or may covenant to redeem and pay the Series of Notes or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Notes. If a Series of Notes is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Notes pursuant to the terms of such Notes, it shall notify the Trustee of the redemption date and the principal amount of Series of Notes to be redeemed. The Company shall give the notice at least 45 days but not more than 60 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
 
Section 3.02   Selection of Notes to Be Redeemed.
 
If less than all of the Notes of a Series are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes of a Series to be redeemed or purchased among the Holders of such Notes (a) in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed or, (b) if such Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. In the event of partial redemption or purchase 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 of such Series not previously called for redemption or purchase. The Trustee may select for redemption or repurchase portions of the principal of Notes of such Series that have denominations larger than $1,000.
 
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes of a Series and portions of them selected shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Notes of any Series issuable in other denominations pursuant to Section 2.02(j) hereof, the minimum principal denomination for each Series and integral multiples thereof. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes of a Series called for redemption or repurchase also apply to portions of Notes of a Series called for redemption or repurchase.
 
Section 3.03   Notice of Redemption.
 
Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, 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 of the Series to be redeemed and shall state:

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 	(1)	the redemption date;	
 
 	(2)	the redemption price;	
 
 	(3)	the name and address of the Paying Agent;	
 
 	(4)	Notes of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;	
 
 	(5)	that, if applicable, interest on Notes of the Series called for redemption ceases to accrue on and after the redemption date;	
 
 	(6)	the CUSIP number, if any;	
 
 	(7)	that the redemption is for a sinking fund, if such is the case; and	
 
 	(8)	any other information as may be required by the terms of the particular Series of the Notes or the Notes of a Series being redeemed.	
 
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided that the Company shall have delivered to the Trustee, at least 45 days prior to the redemption date (unless a shorter time period is acceptable to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
 
Section 3.04   Effect of Notice of Redemption.
 
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional.
 
Section 3.05   Deposit of Redemption Price.
 
On or before 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

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paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
 
Section 3.06   Notes Redeemed in Part.
 
Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the Company’s written request, the Trustee shall authenticate for the Holder, at the expense of the Company, a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
 
No Notes of $1,000 or less can be redeemed in part.
 
ARTICLE 4.
COVENANTS
 
Section 4.01   Payment of Principal and Interest.
 
The Company covenants and agrees for the benefit of the Holders of each Series of Notes that it will 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 such Notes. Principal, premium, if any, and interest on any Series of Notes will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds 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.
 
Section 4.02   Maintenance of Office or Agency.
 
The Company will maintain 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 will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails 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 purposes and may from time to time rescind such designations; provided, however , that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
 
With respect to each Series of Notes, the Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.04 hereof.

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Section 4.03   Reports .
 
(a)   Whether or not the Company is required by the SEC, so long as any Series of Notes are outstanding, the Company shall furnish to the Holders of such Notes, within the time periods (including any extensions thereof) specified in the SEC’s rules and regulations:
 
 	(1)	all quarterly and annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if the Company were required to file such reports; and	
 
 	(2)	all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.	
 
In addition, whether or not required by the rules and regulations of the SEC, the Company shall file a copy of all such information and reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the SEC’s rules and regulations, unless the SEC will not accept such a filing, and make such information available to securities analysts and prospective investors upon request. It is understood that the Company’s compliance with the above filing requirement with the SEC will satisfy the Company’s obligation to “furnish” the Holders of Notes with the information described in clauses (1) and (2) of this Section 4.03(a). The Company shall at all times comply with TIA Section 314(a). 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 Officer’s Certificates).
 
(b)   For so long as any Series of Notes remain outstanding, if at any time they are not required to file with the Commission the reports required by paragraphs (1) and (2) of this Section 4.03, the Company and any guarantors of such Notes will furnish to the Holders of such Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
 
Section 4.04   Compliance Certificate.
 
The Company and each guarantor of any Series of Notes (to the extent that such guarantor is so required under the TIA) shall deliver to the Trustee with respect to such Series, within 120 days after the end of each fiscal year, an Officer’s 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

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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, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
 
Section 4.05   Taxes.
 
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, 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   Stay, Extension and Usury Laws.
 
The Company covenants (to the extent that it may lawfully do so) that it shall not, and each guarantor of such Notes 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 the Company and each of such guarantors (to the extent that it may lawfully do so), as applicable, 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 for such Notes, but shall suffer and permit the execution of every such power as though no such law has been enacted.
 
Section 4.07   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 material Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company and any such Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Company and its material Subsidiaries; provided, however , that 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 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 Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes.
 
ARTICLE 5.
SUCCESSORS
 
Section 5.01   Merger, Consolidation or Sale of Assets.
 
The Company shall not, directly or indirectly: (1) consolidate or merge with or into another person, whether or not the Company is the surviving corporation, or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person unless:

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(i) either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger, if other than the Company, or to which such sale, assignment, transfer, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the Republic of the Marshall Islands, the United States, any state of the United States or the District of Columbia;
 
(ii)   the Person formed by or surviving any such consolidation or merger, if other than the Company, or the Person to which such sale, assignment, transfer, 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 (and other applicable documents), executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee;
 
(iii)   immediately after such transaction no Default or Event of Default exists; and
 
(iv)   the Company has delivered to the Trustee an Officer’s Certificate stating and an Opinion of Counsel stating in the opinion of such counsel that such transaction and, if applicable, the supplemental indenture required in connection with such transaction pursuant to Section 5.01(ii) complies with this Section 5.01 and that all conditions precedent herein provided for relating to such transaction have been complied with.
 
The Company may not, directly or indirectly, lease all or substantially all of the properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not apply to (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction or forming a direct holding company of the Company or (2) to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Subsidiaries.
 
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 person 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; provided, however , that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest on any Series of Notes except in the case of a sale of all of the Company’s assets that meets the requirements of Section 5.01 hereof.

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ARTICLE 6.
DEFAULTS AND REMEDIES
 
Section 6.01   Events of Default.
 
“ Event of Default ,” wherever used herein with respect to Notes of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
 
 	(1)	default in the payment of any interest on any Note of that Series when it becomes due and payable, and continuance of such default for a period of 30 days; or	
 
 	(2)	default in payment when due of the principal of, or premium, if any, on any Note of that Series; or	
 
 	(3)	default in the deposit of any sinking fund payment, when and as due in respect of any Note of that Series; or	
 
 	(4)	default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Notes other than that Series), which default continues uncured for a period of 30 days after written notice given by the Trustees for Notes of that Series or Holders of not less than 25% in principal amount of the outstanding Notes of that Series; or	
 
 	(5)	default under a mortgage, indenture or instrument under such conditions as may be provided pursuant to Section 2.02(w) in respect of Notes of that Series; or	
 
 	(6)	one or more judgments for the payment of money in an aggregate amount in excess of $10.0 million (excluding therefrom any amount reasonably expected to be covered by insurance) shall be rendered against the Company any Subsidiary or any combination thereof and the same shall not have been paid, discharged or stayed for a period of 60 days after such judgment became final and nonappealable; or	
 
 	(7)	the Company pursuant to or within the meaning of any Bankruptcy Law:	
 
(a)       commences a voluntary case,
 
(b)       consents to the entry of an order for relief against it in an involuntary case,
 
(c)       consents to the appointment of a Custodian of it or for all or substantially all of its property,
 
(d)       makes a general assignment for the benefit of its creditors, or
 
(e)       generally is unable to pay its debts as the same become due; or

 

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(8)     a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
 
(a)     i s for relief against the Company in an involuntary case,
 
(b)     appoints a Custodian of the Company or for all or substantially all of its property, or
 
(c)       orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or
 
 	(9) 	any other Event of Default provided with respect to Notes of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in accordance with Section 2.02.	
 
Section 6.02   Acceleration.
 
If an Event of Default with respect to Notes of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Sections 6.01(7) or (8) hereof) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Notes of that Series may declare the principal amount (or, if any Notes of that Series are Discount Notes, such portion of the principal amount as may be specified in the terms of such Notes) of and accrued and unpaid interest, if any, on all of the Notes of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Sections 6.01(7) or (8) hereof shall occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
 
At any time after such a declaration of acceleration with respect to any Series has been made, the Holders of a majority in principal amount of the outstanding Notes of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration 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, interest or premium that has become due solely because of the acceleration) have been cured or waived.
 
No s uch rescission shall affect any subsequent Default or impair any right consequent thereon.
 
Section 6.03   Other Remedies.
 
If an Event of Default with respect to Notes of any Series at the time outstanding occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on such Notes or to enforce the performance of any provision of such Notes or this Indenture.

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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 of any Series then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes of such Series waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default or Event of Default in the payment of interest on, or the principal of, such Notes (including in connection with an offer to purchase); provided , however , that the Holders of a majority in aggregate principal amount of the then outstanding Notes of any Series may rescind an acceleration of such Notes and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default or Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
 
Section 6.05   Control by Majority.
 
Holders of a majority in principal amount of the then outstanding Notes of any Series 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 any Series of Notes may pursue a remedy with respect to this Indenture or the Notes only if:
 
(a)   such Holder has 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 of such Series make a written request to the Trustee to pursue the remedy;
 
(c)   such Holder of a Note of such Series or Holders of Notes of such Series offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;
 
(d)   the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and

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(e)   during such 60-day period the Holders of a majority in principal amount of the then outstanding Notes of such Series do not give the Trustee a direction inconsistent with the request.
 
A Holder of any Series of Notes may not use this Indenture to prejudice the rights of another Holder of such Series of Notes or to obtain a preference or priority over another Holder of Notes of such Series.
 
Section 6.07   Rights of Holders of Notes to Receive Payment.
 
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and 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 Sections 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, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
 
Section 6.09   Trustee May File Proofs of Claim.
 
The Trustee for each Series of Notes 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 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

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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 or property pursuant to this Article 6, 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 the Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any and interest, respectively; and
 
Third : to the Company.
 
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 costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes of any Series.
 
ARTICLE 7.
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 his or her own affairs.
 
(b)   Except during the continuance of an Event of Default:
 
(i)   the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically

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set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
 
(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, but in the case of any such certificates of opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements 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;
 
(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), (c), (e) and (f) of this Section and Section 7.02.
 
(e)   No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to 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 believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
 
(b)   Before the Trustee acts or refrains from acting, it may require an Officer’s 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 Officer’s Certificate or Opinion of

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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 issuing such demand, request or notice.
 
(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 satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
 
(g)   Whenever in the administration of this Indenture, the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate.
 
(h)   The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
 
(i)   The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
 
(j)   The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person as so authorized in any such certificate previously delivered and not superseded.
 
Section 7.03   Individual Rights of Trustee.
 
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event the Trustee acquires any

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conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as Trustee or resign. Any Agent may exercise the same rights, with the same duties, as the Trustee under this Section 7.03. 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.
 
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 relating to the payment of principal of or interest on any Note, the Trustee may withhold the notice from Holders of the Notes if and so long as a Responsible Officer(s) 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 first issuance of Notes under 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 Section 313(a) (but if no event described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA Section 313(c).
 
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Company and filed with the SEC and each stock exchange on which the Notes are listed in accordance with TIA Section 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 reasonable compensation as agreed upon in writing for its acceptance of this Indenture and services hereunder. 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, except to the extent any such expense, advance or disbursement may be attributable

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to the Trustee’s negligence, willful misconduct or bad faith. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
 
The Company shall indemnify the Trustee against any and all losses, liabilities, claims, damages or expenses (including taxes other than taxes based upon the income 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 or expense may be attributable to its negligence, bad faith or willful misconduct. 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.
 
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, 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(7) or (8) 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 any Bankruptcy Law.
 
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extent applicable.
 
Section 7.08   Replacement of Trustee.
 
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
 
The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of Notes of a majority in principal amount of the then outstanding Notes of a given Series may remove the Trustee with respect to the Notes of such Series 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;

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(b)       t he Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(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 of a given Series may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Notes of such Series.
 
If the Trustee, after written request by any Holder of a Note of a given Series who has been a Holder of such Note for at least six months, fails to comply with Section 7.10, such Holder of such Note may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the Notes of such Series.
 
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee (including its agents and/or counsel) 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 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 a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition.

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This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).
 
Section 7.11   Preferential Collection of Claims Against Company.
 
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein.
 
Section 7.12   Trustee’s Application for Instructions from the Company.
 
Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to the taking of such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
 
ARTICLE 8.
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 Officer’s Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be applied to any Series of outstanding Notes upon compliance with the conditions set forth below in this Article 8.
 
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 and each of the guarantors, if any, shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes of such Series (including the related guarantees, if any) on the date the conditions set forth below are satisfied (hereinafter, “ Legal Defeasance ”). 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 of such Series (including the related guarantees, if any), 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 of their other obligations under such Notes, such guarantees, if any 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 8.05

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hereof, and as more fully set forth in such Section, payments in respect of the principal of, interest and premium, if any, on such Notes when such payments are due, (b) the Company’s obligations with respect to the Notes under Article 2 and Section 4.01 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 and each of the guarantors, if any, will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their obligations under the covenants contained in Section 4.03, 4.04 and 4.05 with respect to the outstanding Notes of the applicable Series on and after the date the conditions set forth in Section 8.04 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 of such Series, 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 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, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(4) through 6.01(6) 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 Sections 8.02 or 8.03 hereof to any outstanding Series of 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, cash in United States dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, interest and premium, if any, on the outstanding Notes of such Series 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;

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(b)   in the case of an election under Section 8.02 hereof with respect to any Series of Notes, the Company shall have delivered to the Trustee an Opinion of Counsel 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 U.S. 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 of such Series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. 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 with respect to any Series of Notes, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes of such Series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. 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 incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Notes of any Series pursuant to this Article 8 concurrently with such incurrence, or insofar as Sections 6.01(7) or 6.01(8) 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 shall 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 Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
 
(f)   the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
 
(g)   the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
 
Section 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 of any Series shall be held in trust and applied by the Trustee, in

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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 of the applicable Series.
 
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 Series of Notes 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 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 reasonable 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 shall be repaid to the Company.
 
Section 8.07   Reinstatement.
 
If the Trustee or Paying Agent is unable to apply any United States 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 and any applicable guarantors’ obligations under this Indenture and the applicable Notes and the guarantees 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

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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 9.
AMENDMENT, SUPPLEMENT AND WAIVER
 
Section 9.01   Without Consent of Holders of Notes.
 
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Notes of one or more Series without the consent of any Holder of a Note:
 
 	(1)	to cure any ambiguity, defect or inconsistency;	
 
 	(2)	to provide for uncertificated Notes in addition to or in place of certificated Notes;	
 
 	(3)	to provide for the assumption of the Company’s obligations to the Holders of the Notes of a given Series by a successor to the Company pursuant to Article 5 hereof;	
 
 	(4)	to make any change that would provide any additional rights or benefits to the Holders of Notes of a given Series or that does not adversely affect the legal rights hereunder of any Holder of a Note of such Series;	
 
 	(5)	to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;	
 
 	(6)	to provide for the issuance of and establish the form and terms and conditions of Notes of any Series as permitted by this Indenture;	
 
 	(7)	to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or	
 
 	(8)	to comply with the rules of any securities exchange or automated quotation system on which the Notes of such Series may be listed or traded.	
 
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 will 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 will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

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Section 9.02   With Consent of Holders of Notes .
 
The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Notes of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Notes of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of Notes of each such Series. Except as otherwise provided herein, the Holders of at least a majority in principal amount of the outstanding Notes of each Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Notes of such Series) may waive compliance by the Company with any provision of this Indenture or the Notes with respect to such Series.
 
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 supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. 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 the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.
 
After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Notes affected thereby a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. However, without the consent of each Holder affected, an amendment or waiver under this Section 9.02 may not:
 
(a)   reduce the principal amount of Notes whose Holders must consent to an amendment or waiver;
 
(b)   reduce the principal of or change the fixed maturity of any Note or alter or waive any of the provisions with respect to the redemption of the Notes;
 
(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, if any, on the Notes of a given Series, except a rescission of acceleration of the Notes of such Series by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes of such Series and a waiver of the payment default that resulted from such acceleration;

 

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(e)   make any Note payable in money other than that stated in the Notes;
 
(f)   make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of the Notes to receive payments of principal of or premium, interest, if any, on the Notes; or
 
(g)   make any change in the foregoing amendment and waiver provisions.
 
Section 9.03   Compliance with Trust Indenture Act.
 
Every amendment to this Indenture or the Notes of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
 
Section 9.04   Revocation and Effect of Consents.
 
Until an amendment or waiver becomes effective, consent to it by a Holder of a Note is a continuing consent by the Holder 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 or subsequent Holder may revoke the consent as to his Note or portion of a Note if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
 
Section 9.05   Notation on or Exchange of Notes.
 
The Trustee may place an appropriate notation about an amendment or waiver on any Note of any Series thereafter authenticated. The Company in exchange for Notes of that Series may issue and the Trustee shall authenticate upon request new Notes of that Series that reflect the amendment or waiver.
 
Section 9.06   Trustee Protected.
 
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article 9 or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
 
ARTICLE 10.
SATISFACTION AND DISCHARGE
 
Section 10.01   Satisfaction and Discharge.
 
This Indenture will be discharged and will cease to be of further effect as to a Series of Notes issued hereunder, when:
 
 	(1)	either:	

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(a)   all such Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or
 
(b)   all such Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable 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 of such Notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
 
 	(2)	no Default or Event of Default has occurred and is continuing on the date of such deposit or will 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 or any guarantor, as applicable, is a party or by which the Company or any guarantor, as applicable, is bound;	
 
 	(3)	the Company or any guarantor of such Notes has paid or caused to be paid all sums payable by it under this Indenture; and	
 
 	(4)	the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.	
 
In addition, the Company must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied .
 
Section 10.02   Application of Trust Money.
 
Subject to the provisions of Section 8.06 hereof, all money deposited with a Trustee pursuant to Section 10.1 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes with respect to which such deposit was made and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with such Trustee; but such money need not be segregated from other funds except to the extent required by law.
 
If such Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 10.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any applicable guarantor’s obligations under this Indenture and the applicable Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.01 hereof; provided that if the Company has made any payment

38

 
of principal of, premium, if any, or interest on, any Notes because of 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 or Government Securities held by the Trustee or Paying Agent.
 
ARTICLE 11.
MISCELLANEOUS
 
Section 11.01   Trust Indenture Act Controls.
 
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA Section 318(c), the imposed duties shall control.
 
Section 11.02   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.
 
If to the Company:
Genco Shipping & Trading Limited
299 Park Avenue, 20th Floor
New York, New York 10171
Facsimile: (646) 443-8551
Attention: John C. Wobensmith
 
If to the Trustee:
 
[     ]
Attention: [             ]
Facsimile: [     ]
 
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 postage prepaid, certified or registered mail, 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 Section 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

39

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 11.03   Communication by Holders of Notes with Other Holders of Notes.
 
Holders of any Series may communicate pursuant to TIA Section 312(b) with other Holders of the Series or any other Series with respect to their rights under this Indenture or the Notes of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
 
Section 11.04   Certificate and Opinion as to Conditions Precedent.
 
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
 
(a)   an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
 
(b)   an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
 
Section 11.05   Statements Required in Certificate.
 
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 Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
 
(a)   a statement that the Person signing 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 complied with; and
 
(d)   a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
 
Section 11.06   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.

40

 
Section 11.07 Calculation of Foreign Currency Amounts .
 
The calculation of the U.S. dollar equivalent amount for any amount denominated in a foreign currency shall be the noon buying rate in the City of New York as certified by the Federal Reserve Bank of New York on the date on which such determination is required to be made or, if such day is not a day on which such rate is published, the rate most recently published prior to such day.
 
Section 11.08   No Personal Liability of Directors, Officers, Employees and Stockholders.
 
No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, shall have any liability for any obligations of the Company under the Notes, this 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. The waiver may not be effective to waive liabilities under the federal securities laws.
 
Section 11.09   Governing Law.
 
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
 
Section 11.10   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 11.11   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 11.12   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 11.13   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.

41

 
Section 11.14 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.
 
ARTICLE 12.
SINKING FUNDS
 
Section 12.01   Applicability of Article.
 
The provisions of this Article 12 shall be applicable to any sinking fund for the retirement of the Notes of a Series, except as otherwise permitted or required by any form of Notes of such Series issued pursuant to this Indenture.
 
The minimum amount of any sinking fund payment provided for by the terms of the Notes of any Series is herein referred to as a “ mandatory sinking fund payment ” and any other amount provided for by the terms of Notes of such Series is herein referred to as an “ optional sinking fund payment .” If provided for by the terms of Notes of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02 hereof. Each sinking fund payment shall be applied to the redemption of Notes of any Series as provided for by the terms of the Notes of such Series.
 
Section 12.02   Satisfaction of Sinking Fund Payments with Notes.
 
The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Notes of any Series to be made pursuant to the terms of such Notes (1) deliver outstanding Notes of such Series to which such sinking fund payment is applicable (other than any of such Notes previously called for mandatory sinking fund redemption) and (2) apply as credit Notes of such Series to which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of Notes (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Notes, provided that such Notes have not been previously so credited. Such Notes shall be received by the Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Notes for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Notes for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Notes in lieu of cash payments pursuant to this Section 12.02, the principal amount of Notes of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Notes of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however , that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Notes of that Series purchased by the Company

42

 

having an unpaid principal amount equal to the cash payment required to be released to the Company.
 
Section 12.03   Redemption of Notes for Sinking Fund.
 
Not less than 45 days (unless a shorter period is satisfactory to the Trustee) prior to each sinking fund payment date for any Series of Notes, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Notes of that Series pursuant to Section 12.02 hereof, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 15 days nor more than 45 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect of a particular Series of Notes) before each such sinking fund payment date the Trustee shall select the Notes to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 hereof and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.03 hereof. Such notice having been duly given, the redemption of such Notes shall be made upon the terms and in the manner stated in Sections 3.04, 3.05 and 3.06 hereof.
 
ARTICLE 13.
GUARANTEES
 
Section 13.01   Guarantee.
 
Securities of any Series may be guaranteed by one or more of the Guarantors. The terms and the form of any such Guarantee will be established in the manner contemplated by Section 2.02 hereof for those particular Notes, and pursuant to duly adopted resolutions of the board of directors (or similar governing body) or any authorized committee thereof of each such Guarantor.
 
[ Signatures on following page ]

 
 
43

SIGNATURES
 
Dated as of  [     ], 200_
 
GENCO SHIPPING & TRADING LIMITED

By:__________________________________    
 
Name:
 
Title:

[     ], as Trustee
 
By:________________________________    
 
Name:
 
Title:

 

 
                                                                                                                                         Exhibit 5.1

 
REEDER & SIMPSON P.C.
ATTORNEYS AT LAW

P.O. Box 601                                                                                                                         Telephone: 011-692-625-3602
RRE Commercial Center                                                                                                            Facsimile: 011-692-625-3603
Majuro, MH 96960                                                                                                                 Email: dreeder@ntamar.net
                                                                                                                                     simpson@otenet.gr

Genco Shipping & Trading Limited
299 Park Avenue, 20 th Floor
New York, New York 10019

January 23 , 2007

 Re: Genco Shipping & Trading Limited (the “Company”)  

Ladies and Gentlemen:

 We are licensed to practice law in the Republic of the Marshall Islands (the "RMI"), and are members in good standing of the Bar of the RMI. We have acted as special RMI counsel to the Company, a RMI non-resident domestic corporation and in such capacity we have assisted in the preparation and filing with the Securities and Exchange Commission (the “Commission”), under the Securities Act of 1933, as amended (the “Securities Act”), of a Registration Statement on Form S-3 (such registrations statement and any additional registration statement filed pursuant to Rule 462(b) is herein referred to as the “Registration Statement”), in respect to the contemplated issuance by the Company from time to time of up to US$500,000,000, aggregate public offering price (or any such further aggregate public offering price as may be registered pursuant to Rule 462(b) or the equivalent thereof in one or more foreign currencies, currency units or composite currencies of (i) debt securities, which may be issued pursuant to separate indentures, as amended or supplemented from time to time, between the Company and the trustee named in the applicable indenture (the “Debt Securities”), (ii) shares of preferred stock of the Company, par value $0.01 per share (the “Preferred Stock”); and (iii) shares of common stock of the Company, par value $0.01 per share (the “Common Stock”), for the purpose of rendering an opinion that relates to the application and interpretation of RMI law.

 In connection with this opinion we have examined originals, facsimiles, photo, or electronic copies of the Registration Statement, as amended, and the prospectus to which the Registration Statement relates.

 In addition, although we have searched the statutory laws of the RMI and have examined such certificates, records, authorizations, and proceedings as we have deemed relevant, our knowledge of factual matters will be limited to those matters of which we have actual knowledge. The opinions hereinafter expressed are subject to the constitutionality and continued validity of all RMI statutes and laws relied upon us in connection therewith. We express no opinion as to matters governed by, or the effect or applicability of any laws of any jurisdiction other than the

 

 
laws of the RMI which are in effect as of the date hereof. This opinion speaks as of the date hereof, and it should be recognized that changes may occur after the date of this letter which may effect the opinions set forth herein. We assume no obligation to advise the parties, their counsel, or any other party seeking to rely upon this opinion, of any such changes, whether or not material, or of any other matter which may hereinafter be brought to our attention.

 1. Upon the fixing of the designations, relative rights, preferences and limitations of any series of Preferred Stock by the Board of Directors of the Company and any proper and valid filing with the authorities of the RMI of a statement setting forth a copy of the resolution of the Board of Directors of the Company establishing such series of Preferred Stock and the number of shares of such Preferred Stock to be issued, all in conformity with the Company’s Amended and Restated Articles of Incorporation and By-laws, and upon the approval of the Board of Directors of the Company of the specific terms of issuance, all necessary corporate action on the part of the Company will have been taken to authorize the issuance and sale of such series of Preferred Stock proposed to be sold by the Company, and when such shares of Preferred Stock are issued and delivered against payment therefor in accordance with the applicable agreement or upon conversion or exchange in accordance with the terms of any such Security that has been duly authorized, issued, paid for and delivered, such shares will be validly issued, fully paid and non-assessable.

 2. The shares of Common Stock, when the terms of the issuance and sale thereof have been duly approved by the Board of Directors of the Company in conformity with the Company’s Amended and Restated Articles of Incorporation and By-laws and when issued and delivered against payment therefor in accordance with the applicable agreement or upon conversion or exchange of any Security that has been duly authorized, issued, paid for and delivered, will be validly issued, fully paid and non-assessable.

 3. When the specific terms of a particular Debt Security have been duly authorized by the Board of Directors of the Company and established in accordance with applicable indenture and such Debt Security has been duly executed, authenticated, issued for value and delivered in accordance with the applicable indenture, such Debt Security will be a binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or other laws relating to or affecting creditors’ rights generally and subject to general principles of equity, including application by a court of competent jurisdiction of principles of good faith, fair dealing, commercial reasonableness, materiality, unconscionability and conflict with public policy or other similar principles

 We hereby authorize the addressee of this opinion to file it as an exhibit to the Registration Statement and consent to the reference to us under the captions “Legal Matters” in the prospectus that is a part of the Registration Statement, without admitting that we are an “expert” within the meaning of the United States Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder with respect to any part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of said Act.

Sincerely.
 
/s/ Reeder & Simpson PC
Reeder & Simpson PC

 

 

[LETTERHEAD OF KRAMER LEVIN NAFTALIS & FRANKEL LLP]

Exhibit 5.2

January 23, 2007

Genco Shipping & Trading Limited
299 Park Avenue, 20 th Floor
New York, New York 10171

Ladies and Gentlemen:

 We have acted as special counsel to Genco Shipping & Trading Limited , a corporation organized under the laws of the Republic of the Marshall Islands (the " Company "), in connection with the preparation and filing of a Registration Statement on Form S-3 (the " Registration Statement ") with the Securities and Exchange Commission with respect to the registration under the Securities Act of 1933, as amended, of up to US$500,000,000 aggregate public offering price of (i) debt securities, which may be issued pursuant to an indenture (the " Indenture ") , as amended or supplemented from time to time, between the Company and the trustee named in the Indenture (the “ Debt Securities ”), (ii) shares of preferred stock of the Company, par value $0.01 per share (the “ Preferred Stock ”), and (iii) shares of common stock of the Company, par value $0.01 per share (the “ Common Stock ”).

In rendering this opinion, we have reviewed copies of the following documents:
 
(A)  	the Registration Statement;	
 
(B)  	the Certificate of Incorporation of the Company as such Certificate of Incorporation has been amended and/or restated through the date hereof;	
 
(C)  	the By-laws of the Company as such By-laws have been amended and/or restated through the date hereof;	
 
(D)  	certain resolutions of the Board of Directors of the Company; and	
 
(E)  	the form of Indenture, which is governed by the laws of the State of New York.	
 
We have also made such inquiries and reviewed such other documents and records as we have deemed necessary or appropriate as a basis for our opinion. We have also examined and relied upon the statements, representations and certificates of officers or representatives of the Company, public officials and others. In rendering our opinion, we have assumed that the Debt Securities will be duly authenticated by the Trustee for the Debt Securities as provided for in the Indenture.
 
Based on the foregoing, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that when an Indenture substantially in the form of Indenture we have reviewed has been executed and delivered by the Company and the trustee named

 
therein and when the specific terms of a particular Debt Security have been duly authorized by the Board of Directors of the Company and established in accordance with such Indenture and such Debt Security has been duly executed, authenticated, issued for value and delivered in accordance with such Indenture, such Debt Security will constitute a binding obligation of the Company.

The opinion set forth above is qualified (i) by the effects of applicable laws relating to bankruptcy, insolvency, and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) with respect to the remedies of specific performance and injunctive and other forms of equitable relief, by the availability of equitable defenses and the discretion of the court before which any enforcement thereof may be brought and (iii) by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
 
We express no opinion as to any laws other than the laws of the State of New York and the federal laws of the United States of America (the " Relevant Laws ").
 
The opinion expressed herein is based upon the Relevant Laws and interpretations thereof in effect on the date hereof, and the facts and circumstances in existence on the date hereof, and we assume no obligation to revise or supplement this opinion letter should any such law or interpretation be changed by legislative action, judicial decision or otherwise or should there be any change in such facts or circumstances.
 
We hereby consent to the use of this opinion as Exhibit 5.2 to the Registration Statement and to the use of our name under the caption "Legal Matters" in the prospectus included in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
 
 Very truly yours,

                                           /s/ Kramer Levin Naftalis & Frankel LLP
                         Kramer Levin Naftalis & Frankel LLP

 

  

Exhibit 12.1
 
GENCO SHIPPING & TRADING LIMITED
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in thousands of dollars, except ratios)

 	 	Nine Months
Ended
September 30, 	 	Year Ended
December 31, 	 	For the Period September 27 through December 31, 	 	
 	 	2006	 	 
2005	 	 
2004	 	
Earnings:	 	 	 	 	 	 	 	
Net income	 	
$	
47,004	 	
$	
54,482	 	
$	
907	 	
Add:	 	 	 	 	 	 	 	 	 	 	
Interest expense	 	 	
6,616	 	 	
10,737	 	 	
242	 	
Amortization of deferred financing costs	 	 	
243	 	 	
4,611(A	
)	 	
-	 	
 	 	 	 	 	 	 	 	 	 	 	
Earnings	 	
$	
53,863	 	
$	
69,830	 	
$	
1,149	 	
 	 	 	 	 	 	 	 	 	 	 	
Fixed Charges:	 	 	 	 	 	 	 	 	 	 	
Interest expense  	 	
$	
6,616	 	
$	
10,737	 	
$	
242	 	
Amortization of deferred financing costs	 	 	
243	 	 	
4,611	 	 	
-	 	
 	 	 	 	 	 	 	 	 	 	 	
Total fixed charges	 	
$	
6,859	 	
$	
15,348	 	
$	
242	 	
 	 	 	 	 	 	 	 	 	 	 	
Ratio of earnings to fixed charges	 	 	
7.85x	 	 	
4.55x	 	 	
4.75x	 	

 
(A) The Company entered into a new credit facility on July 29, 2005 which resulted in the write-off of $4,103 of unamortized deferred financing costs associated with the original credit facility.

 

Exhibit 23.3

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 24, 2006, relating to the financial statements of Genco Shipping & Trading Limited, appearing in the Annual Report on Form 10-K of Genco Shipping & Trading Limited for the year ended December 31, 2005 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement.

/s/ Deloitte & Touche LLP
 
New York, New York
January 23, 2007