UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549

 
FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported):  July 21, 2010

 
GENCO SHIPPING & TRADING LIMITED
(Exact Name of Registrant as Specified in Charter)

Republic of the Marshall
Islands	 	001-33393	 	98-043-9758	
(State or Other Jurisdiction
of Incorporation)	 	(Commission File Number)	 	(I.R.S. Employer
Identification No.)	

299 Park Avenue
20th Floor	 	10171	
(Address of Principal
Executive Offices)	 	(Zip Code)	
 
Registrant’s telephone number, including area code:  (646) 443-8550
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
 
o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
Item 1.01.                                           Entry into a Material Definitive Agreement.
 
Notes Underwriting Agreement
 
On July 21, 2010, Genco Shipping & Trading Limited (“Genco”), entered into an Underwriting Agreement (the “Notes Underwriting Agreement”) with Deutsche Bank Securities Inc., BNP Paribas Securities Corp. and Credit Suisse Securities USA (the “Representatives”), as representatives for the several underwriters referred to in the Notes Underwriting Agreement, relating to the issuance and sale in a public offering of $110 million aggregate principal amount of its 5.00% Convertible Senior Notes due 2015 (the “Notes”).  In connection with this offering, Genco granted the underwriters a 30-day option to purchase up to an additional $15 million aggregate principal amount of convertible senior notes, which the underwriters exercised in full on July 22, 2010. The offering of the Notes has been registered under the Securities Act of 1933, as amended (the “Securities Act”), by Genco as part of its Registration Statement on Form S-3 (No. 333-155758) (the “Form S-3”) filed with the Securities and Exchange Commission (the “SEC”).
 
Indenture and Notes
 
The Notes are being issued pursuant to an indenture, dated as of July 27, 2010 (the “Base Indenture”), by and between Genco and The Bank of New York Mellon, as trustee (the “Trustee”), supplemented by the First Supplemental Indenture dated as of June 27, 2010, by and between Genco and the Trustee (the “Supplemental Indenture,” and together with the Base Indenture, the “Indenture”).  The Notes will be represented by a global security, executed by Genco, in the form attached to the Supplemental Indenture.
 
The Notes will bear interest at a rate of 5.00% per annum and are scheduled to mature on August 15, 2010. Holders may convert their Notes until the close of business on February 15, 2015, only in specified circumstances, and holders may convert their Notes at any time thereafter until the second scheduled trading day preceding maturity. The Notes will be convertible at an initial conversion price of $19.60 per share of common stock, which represents an initial conversion rate of approximately 51.0204 shares of common stock per $1,000 aggregate principal amount of notes. Upon conversion, Genco may deliver cash, shares of common stock or a combination thereof, at its option. The Indenture includes customary agreements and covenants by Genco, including with respect to events of default.
 
The foregoing description of the material terms of the Base Indenture and the Supplemental Indenture is qualified in its entirety by reference to each of the Base Indenture and the Supplemental Indenture, which are attached to this report as Exhibit 4.1 and Exhibit 4.2, respectively, and are incorporated herein by reference
 
Common Stock Underwriting Agreement
 
On July 21 , Genco also entered into an underwriting agreement (the “Common Stock Underwriting Agreement”) with the Representatives, as representatives for the several underwriters referred to in the Common Stock Underwriting Agreement, pursuant to which Genco agreed to sell to such underwriters an aggregate of 3,125,000 shares (together with the 468,750 additional shares refered to below, the “Shares”) of common stock, par value $0.01 per share, of Genco (the “Common Stock”), at a purchase price of $15.28 per share (the “Purchase Price”), which reflects a price
 
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to the public of $16.00 per share less underwriting discounts and commissions of $0.72 per share. In connection with this offering, Genco granted the underwriters a 30-day option to purchase up to an additional 468,750 shares of Common Stock at a price per share equal to the Purchase Price, which the underwriters exercised in full on July 22, 2010. The offering of the Common Stock has been registered under the Securities Act by Genco as part of the Form S-3 filed with the SEC.
 
Each of the Notes Underwriting Agreement and the Common Stock Underwriting Agreement contains customary representations, warranties, conditions to closing, indemnification rights and obligations of the parties. The closing is expected to occur and delivery of the Notes and the Shares is expected to be made on July 27, 2010.
 
The Notes Underwriting Agreement and the Common Stock Underwriting Agreement are filed as an exhibit with this Current Report.
 
Item 2.03.                                           Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The disclosure contained in Item 1.01 of this Current Report on Form 8-K concerning the Notes Underwriting Agreement and the Indenture and Notes is incorporated by reference in its entirety into this Item 2.03.
 
Item 9.01.    Financial Statements and Exhibits
 
(d) Exhibits:
 
The following exhibits are filed herewith:

Exhibit No.	 	Description	
 	 	 	
1.1	 	Notes Underwriting Agreement, dated July 21, 2010, between Genco and the underwriters named therein.	
 	 	 	
1.2	 	Common Stock Underwriting Agreement, dated July 21, 2010, between Genco and the underwriters named therein.	
 	 	 	
4.1	 	Indenture, dated July 27, 2010, between Genco and The Bank of New York Mellon.	
 	 	 	
4.2	 	Supplemental Indenture, dated July 27, 2010, between Genco and The Bank of New York Mellon.	
 	 	 	
5.1	 	Opinion of Kramer Levin Naftalis & Frankel LLP, U.S. counsel for Genco, as to the legality of the Notes being sold by Genco.	
 	 	 	
5.2	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to the legality of the Notes being sold by Genco.	
 	 	 	
5.3	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to the legality of the shares of the Common Stock being sold by Genco.	
 	 	 	
8.1	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to certain tax matters related to the Notes being sold by Genco.	
 
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8.2	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to certain tax matters related to the Common Stock being sold by Genco.	
 	 	 	
8.3	 	Opinion of Kramer Levin Naftalis & Frankel LLP, United States tax counsel for Genco, as to certain tax matters related to the Notes being sold by Genco.	
 	 	 	
8.4	 	Opinion of Kramer Levin Naftalis & Frankel LLP, United States tax counsel for Genco, as to certain tax matters related to the Common Stock being sold by Genco.	
 	 	 	
23.1	 	Consents of Kramer Levin Naftalis & Frankel LLP, U.S. counsel for Genco (contained in Exhibits 5.1, 8.3 and 8.4).	
 	 	 	
23.2	 	Consents of Reeder & Simpson P.C., Marshall Islands counsel for Genco (contained in Exhibits 5.2, 5,3, 8.1 and 8.2).	
 
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SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, Genco Shipping & Trading Limited has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 	GENCO SHIPPING & TRADING LIMITED	
 	 	
 	DATE:  July 27, 2010	

 	/s/ John C. Wobensmith	 	
 	John C. Wobensmith	
 	Chief Financial Officer and Secretary	
 	(Principal Financial and Accounting Officer)	
 
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EXHIBIT INDEX

Exhibit No.	 	Description	
 	 	 	
1.1	 	Notes Underwriting Agreement, dated July 21, 2010, between Genco and the underwriters named therein.	
 	 	 	
1.2	 	Common Stock Underwriting Agreement, dated July 21, 2010, between Genco and the underwriters named therein.	
 	 	 	
4.1	 	Indenture, dated July 27, 2010, between Genco and The Bank of New York Mellon.	
 	 	 	
4.2	 	Supplemental Indenture, dated July 27, 2010, between Genco and The Bank of New York Mellon.	
 	 	 	
5.1	 	Opinion of Kramer Levin Naftalis & Frankel LLP, U.S. counsel for Genco, as to the legality of the Notes being sold by Genco.	
 	 	 	
5.2	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to the legality of the Notes being sold by Genco.	
 	 	 	
5.3	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to the legality of the shares of the Common Stock being sold by Genco.	
 	 	 	
8.1	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to certain tax matters related to the Notes being sold by Genco.	
 	 	 	
8.2	 	Opinion of Reeder & Simpson P.C., Marshall Islands counsel for Genco, as to certain tax matters related to the Common Stock being sold by Genco.	
 	 	 	
8.3	 	Opinion of Kramer Levin Naftalis & Frankel LLP, United States tax counsel for Genco, as to certain tax matters related to the Notes being sold by Genco.	
 	 	 	
8.4	 	Opinion of Kramer Levin Naftalis & Frankel LLP, United States tax counsel for Genco, as to certain tax matters related to the Common Stock being sold by Genco.	
 	 	 	
23.1	 	Consents of Kramer Levin Naftalis & Frankel LLP, U.S. counsel for Genco (contained in Exhibits 5.1, 8.3 and 8.4).	
 	 	 	
23.2	 	Consents of Reeder & Simpson P.C., Marshall Islands counsel for Genco (contained in Exhibits 5.2, 5,3, 8.1 and 8.2).	

 
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Exhibit 1.1
 
Execution Version
 
$110,000,000
 
Genco Shipping & Trading Limited
 
5.00% Convertible Senior Notes due 2015
 
UNDERWRITING AGREEMENT
 
July 21, 2010
 
To the Managers named in Schedule I hereto
for the Underwriters named in Schedule II hereto
 
Ladies and Gentlemen:
 
Genco Shipping & Trading Limited, a Marshall Islands company (the “ Company ”), proposes to issue and sell to the several underwriters named in Schedule II hereto (the “ Underwriters ”), for whom you are acting as managers (the “ Managers ”), an aggregate principal amount of $110,000,000 of 5.00% Convertible Senior Notes due 2015 (the “ Firm Securities ”) convertible into shares of common stock, par value $0.01 per share, of the Company (“ Common Stock ”).
 
The Company also proposes to sell to the several Underwriters not more than an aggregate principal amount of $15,000,000 of additional 5.00% Convertible Senior Notes due 2015 (the “ Additional Securities ”), if and to the extent that you, as Managers, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such securities granted to the Underwriters in Section 2 hereof.  The Firm Securities and the Additional Securities are hereinafter referred to as the “ Securities .”  The shares of Common Stock into which the Securities are convertible are referred to herein as the “ Underlying Shares .”  If the firm or firms listed in Schedule II hereto include only the Managers listed in Schedule I hereto, then the terms “Underwriters” and “Managers” as used herein shall each be deemed only to refer to such firm or firms.
 
The Securities are to be issued under an indenture to be dated as of the Closing Date (as such term is defined in Section 4) (the “ Original Indenture ”), between The Bank of New York Mellon, National Association, as trustee (the “ Trustee ”), and the Company, as to be supplemented with respect to the Securities by the First Supplemental Indenture to be dated as of the Closing Date, between the Trustee and the Company (the “ First Supplemental Indenture ” and, together with the Original Indenture, the “ Indenture ”).
 
The Company has filed with the Securities and Exchange Commission (the “ Commission ”) a registration statement, including a prospectus, on Form S-3 (File

 
No. 333-155758), relating to certain securities of the Company (the “ Shelf Securities ”), including the Securities and the Underlying Shares, to be offered and sold from time to time by the Company.  The registration statement as amended to the date of this underwriting agreement (this “ Agreement ” and, together with the Indenture and the Securities, the “ Operative Documents ”), including all documents filed as part thereof or incorporated by reference therein, together with the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “ Securities Act ”), is hereinafter referred to as the “ Registration Statement ,” and the related prospectus covering the Shelf Securities dated February 27, 2009 in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “ Base Prospectus. ”  The Base Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “ Prospectus ,” and the term “ preliminary prospectus ” means any preliminary form of the Prospectus.
 
For purposes of this Agreement, “ free writing prospectus ” has the meaning set forth in Rule 405 under the Securities Act, “ Time of Sale Prospectus ” means the preliminary prospectus together with the free writing prospectuses each identified in Schedule I hereto and “ broadly available road show ” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person.  As used herein, the terms “Registration Statement,” “Base Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein.  The terms “ supplement ,” “ amendment ,” and “ amend ” as used herein with respect to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the Prospectus, any preliminary prospectus or free writing prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), that are deemed to be incorporated by reference therein.
 
Concurrently with the offering of the Securities, the Company intends to offer an aggregate of 3,125,000 shares of Common Stock (together with up to 468,750 additional shares of Common Stock subject to an option granted to underwriters), in an underwritten offering to be made pursuant to the Registration Statement, in accordance with a separate underwriting agreement entered into concurrently with this Agreement (the “ Equity Offering ”).
 
1.                                        Representations and Warranties of the Company .  The Company hereby represents and warrants to and agrees with each of the Underwriters that:
 
(a)                                   The Company meets the requirements for use of Form S-3 under the Securities Act.  As of the date of this Agreement, the Company met, and as of the Closing Date and any Option Closing Date (as such term is defined in Section 4), the Company will meet, the requirements of Form S-3 pursuant to the standards for that form prior to October 21, 1992.  Without limiting the generality of the foregoing, as of such dates, the Company has been or will be timely in meeting its reporting obligations under the Exchange Act during the immediately
 
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preceding 12 months and has or will have an aggregate market capitalization held by non-affiliates of greater than $150 million.  The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the knowledge of the Company, threatened by the Commission.  The Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information.
 
(b)                                  Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
 
(c)                                   (i) Each document filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date and any Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Managers expressly for use therein, which information is specified in Section 9(g) of this Agreement or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “ Trust Indenture Act ”), of the Trustee.
 
(d)                                  The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act.  Any free writing prospectus that
 
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the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.  Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.  Except for the free writing prospectuses each identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic road shows, if any, each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
 
(e)                                   Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus and, since the date of the last audited financial statements incorporated by reference into the Time of Sale Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and the subsidiaries of the Company listed on Schedule III to this Agreement (each, a “ Subsidiary ” and collectively, the “ Subsidiaries ”), taken as a whole; (ii) the Company and the Subsidiaries, considered as one entity, have neither incurred any material liability or obligation (including any off-balance sheet obligation), indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other Subsidiaries, any of the Subsidiaries on any class of capital stock or share capital or repurchase or redemption by the Company or any of the Subsidiaries of any class of capital stock or share capital.
 
(f)                                     Each of the Company and the Subsidiaries has been duly organized and is validly existing as a corporation, or company with limited liability, as applicable, in good standing under the laws of the Marshall Islands or the State of Delaware, as applicable, and has the power and authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Time of Sale Prospectus and, in the case of the Company, to enter into and perform its obligations under this Agreement.  Each of the Company and each Subsidiary is duly qualified as a foreign corporation, or company with limited liability, as applicable, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified would not, singly or in the aggregate, result in a material adverse effect on the condition (financial or otherwise), earnings, business, operations or prospects of the Company and the Subsidiaries, taken as a whole (a “ Material Adverse Effect ”).  All of the issued and outstanding capital stock or other equity or ownership interest of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, except as set forth in each of the Time of Sale Prospectus and the Prospectus, is owned by the Company, directly or indirectly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim.  None of the issued and outstanding shares of capital stock or other equity or ownership interest of any Subsidiary were issued in violation of preemptive or other similar rights of any security holder of such Subsidiary.  The Company does not own or
 
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control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries.
 
(g)                                  This Agreement has been duly authorized, executed and delivered by the Company.
 
(h)                                  The Indenture has been duly authorized by the Company and has been duly qualified under, and conforms in all material respects to the requirements of the Trust Indenture Act and to the information in the Time of Sale Prospectus and the description of the Indenture contained in the Prospectus; the Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will have been duly and validly issued and outstanding, will conform in all material respects to the information in the Time of Sale Prospectus and to the description of such Securities contained in the Prospectus and will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law), and entitled to the benefits of the Indenture.  When the Indenture is executed and delivered by the Company, assuming the due authorization, execution and delivery of the Indenture by the Trustee, the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law).  The statements in the Time of Sale Prospectus and the Prospectus under the headings “Description of Debt Securities,” “Description of Notes,” “Description of Other Indebtedness” and “Tax Considerations”, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings and present the information required to be presented under the Securities Act and the rules and regulations promulgated thereunder, in each case in all material respects.  The statements in the Time of Sale Prospectus and the Prospectus under the heading “Description of Capital Stock,” insofar as such statements summarize the terms of the Underlying Shares, are accurate and fair summaries of such legal matters, agreements, documents or proceedings and present the information required to be presented under the Securities Act and the rules and regulations promulgated thereunder, in each case in all material respects.
 
(i)                                      As of July 20, 2010, the Company’s authorized capital stock consists of 100,000,000 shares of common stock, par value $0.01 per share, of which 31,932,798 shares are issued and outstanding, and 25,000,000 shares of preferred stock, par value $0.01 per share, of which no shares were issued and outstanding.  The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
 
(j)                                      When the Securities are issued and authenticated in accordance with the terms of the Indenture and delivered and paid for pursuant to this Agreement on the Closing Date or any
 
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Option Closing Date, as applicable, such Securities will be convertible into the Underlying Shares of the Company in accordance with the terms of the Securities and the Indenture.  The shares of Common Stock outstanding prior to the issuance of the Securities have been duly authorized and are validly issued, fully paid and non-assessable.  The Underlying Shares have been duly authorized and, when issued on conversion in accordance with the terms of the Indenture, will be validly issued, fully paid and non-assessable and will have been issued in compliance with federal and state securities laws and Marshall Islands law, and none of the Underlying Shares will be issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company.  All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and non-assessable and have been issued in compliance with federal and state securities laws and Marshall Islands law.  None of the outstanding shares of Common Stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company.  There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any share capital of the Company or any of the Subsidiaries other than those accurately described in each of the Time of Sale Prospectus and the Prospectus.
 
(k)                                   There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived in writing.
 
(l)                                      Deloitte & Touche LLP, who has certified the financial statements incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus, are independent registered public accountants as required by the Securities Act.
 
(m)                                The financial statements incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly the consolidated financial position of the Company and the Subsidiaries as of and at the dates indicated therein and the results of their operations and cash flows for the periods specified therein.  Such financial statements have been prepared in (i) conformity with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis throughout the periods involved and (ii) all material respects in compliance with the applicable requirements of the Securities Act.  No other financial statements or supporting schedules are required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus.  To the Company’s knowledge, after reasonable inquiry, no person who has been suspended or barred from being associated with a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated by the Public Company Accounting Oversight Board, has participated in or otherwise aided the preparation of, or audited, the financial statements, supporting schedules or other financial data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
 
(n)                                  The Company and each of the Subsidiaries makes and keeps accurate books and records and maintains systems of accounting and disclosure controls and procedures sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to
 
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permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) all information (both financial and non-financial) required to be disclosed by the Company and the Subsidiaries in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and regulations of the Exchange Act, and that all such information is accumulated and communicated to the management of the Company and the Subsidiaries as appropriate to allow timely decisions regarding required disclosure and to make the certifications required under the Exchange Act with respect to such reports.
 
(o)                                  Neither the Company nor any of the Subsidiaries (i) is in violation of any provision of any of its articles of incorporation, bylaws or other charter documents or (ii) is in default (or, with the giving of notice or lapse of time, would be in default) (“ Default ”) under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which it or any of them may be bound (including, without limitation, the debt instruments referred to in each of the Time of Sale Prospectus and the Prospectus and/or filed as exhibits to the Registration Statement), or to which any of the property or assets of the Company or any of the Subsidiaries is subject (each, an “ Existing Instrument ”), except for such Defaults under clause (ii) above as would not, singly or in the aggregate, result in a Material Adverse Effect.  The Company’s execution, delivery and performance of the Operative Documents, consummation of the transactions contemplated hereby and thereby and by the Time of Sale Prospectus and the Prospectus and the issuance and sale of the Securities (i) have been duly authorized by all necessary corporate action and will not result in any violation of any of the provisions of any of the articles of incorporation, bylaws or other charter documents of the Company or any Subsidiary, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any security interest, mortgage, pledge, lien, encumbrance or adverse claim upon any property or assets of the Company or any of the Subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company or any Subsidiary.  No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Company’s execution, delivery or performance of the Operative Documents, consummation of the transactions contemplated hereby and thereby and by the Time of Sale Prospectus and the Prospectus and issuance and sale of the Securities, except such as (i) have been obtained or made by the Company and are in full force and effect or (ii) may be required under applicable state securities or blue sky laws.  As used herein, a “ Debt Repayment Triggering Event ” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.
 
(p)                                  Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, there are no legal or governmental actions, suits or proceedings pending, to which
 
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the Company or any Subsidiary is a party or of which any property, operations or assets of the Company or any Subsidiary is the subject that (individually or in the aggregate), if determined adversely to the Company or any Subsidiary, would, singly or in the aggregate, result in a Material Adverse Effect or adversely affect the consummation of the transactions contemplated by this Agreement or the power or ability of the Company to perform its obligations under the Operative Documents or would be material in the context of the sale of the Securities; to the Company’s knowledge, no such proceeding, litigation or arbitration is threatened or contemplated; and the defense of all such proceedings, litigation and arbitration against or involving the Company or any Subsidiary would not, singly or in the aggregate, result in a Material Adverse Effect.  To the knowledge of the Company, no claim has been asserted against any director or officer of the Company that is premised upon a breach of fiduciary duty owed to the Company or any other person by such director or officer based upon such director’s or officer’s involvement in the formation or management of, or other activities undertaken in connection with, either the Company or the offering of the Securities, and no basis for any such claim exists.
 
(q)                                  Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company and each Subsidiary possess such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, and neither the Company nor any Subsidiary has received, or to the Company’s and each Subsidiary’s knowledge expects to receive, any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could result in a Material Adverse Effect.
 
(r)                                     Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company and each of the Subsidiaries has good and marketable title to all of the personal property owned by them, in each case free and clear of any security interests, mortgages, pledges, liens, encumbrances, equities, adverse claims and other defects, except for any maritime or other liens incurred in the ordinary course of business that do not materially and adversely affect the value of such property and do not materially interfere with the use made or proposed to be made of such property by the Company or such Subsidiary.  The real property held under lease by the Company or any Subsidiary are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or proposed to be made of such real property by the Company or such Subsidiary.  Each of the vessels currently in the fleet of the Company (the “ Company Fleet ”) is duly registered in the name of the Subsidiary that owns it under the laws and regulations and the flag of the nation of such vessel’s registration, and no other action is necessary to establish and perfect such Subsidiary’s title to and interest in the vessel as against any charterer or other third party.  Each of the vessels in the Company Fleet (each, an “ Owned Vessel ”) is owned directly by one of the Subsidiaries as indicated in Schedule IV, free and clear of all security interests, mortgages, pledges, liens, encumbrances, equities, adverse claims and other defects, except for any maritime or other liens incurred in the ordinary course of business that do not materially and adversely affect the value of such Owned Vessel and do not materially interfere with the use made or proposed to be made of such Owned Vessel by the Company or such Subsidiary, or except such as described in each of the Time of Sale Prospectus and the Prospectus and such as are not
 
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material and do not interfere with the ownership or operation of such Owned Vessel.  Each such Owned Vessel is in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of the jurisdiction where it is registered as would affect its registry with the ship registry of such jurisdiction except for failures to be in good standing which would not, singly or in the aggregate, result in a Material Adverse Effect. Upon delivery to and acceptance by the relevant subsidiary of the Company under the memoranda of agreement or the new-building contracts described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, each of the vessels described in the Registration Statement, the Time of Sale Prospectus and the Prospectus as being under contract for delivery to the Company or a subsidiary of the Company (the “ Contracted Vessels ”) will be duly registered as a vessel under the laws and regulations of the jurisdiction of such vessel’s registration, and, on the date of such delivery, the Company or a subsidiary will have good title to the applicable Contracted Vessel, free and clear of all mortgages, pledges, liens, security interests, claims and all defects of the title of record, except for any mortgages, pledges, liens, security interests or claims arising from any financing arrangement which the Company or a subsidiary of the Company may enter to finance the acquisition of the Contracted Vessels and except such encumbrances which would not, singly or in the aggregate, result in a Material Adverse Effect; and each such Contracted Vessel will be in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of the jurisdiction where it is registered as would affect its registry with the ship registry of such jurisdiction.
 
(s)                                   Each Owned Vessel has been, and the Company will use commercially reasonable efforts to ensure that each Contracted Vessel will be, operated in compliance with the rules, codes of practice, conventions, protocols, guidelines or similar requirements or restrictions imposed, published or promulgated by any governmental authority, classification society or insurer applicable to the respective vessel (collectively, “ Maritime Guidelines ”) and all applicable international, national, state and local conventions, laws, regulations, orders, licenses, permits and other authorizations of any applicable Governmental Authority and other requirements (including, without limitation, all Environmental Laws), except where such failure to be in compliance would not have, singly or in the aggregate, a Material Adverse Effect. The Company and each of its applicable subsidiaries are, and with respect to the Contracted Vessels will be, qualified to own or lease, as the case may be, and operate such vessels under all applicable international, national, state and local conventions, laws, regulations, orders, Governmental Licenses and other requirements (including, without limitation, all Environmental Laws) and Maritime Guidelines, including the laws, regulations and orders of each such vessel’s flag state, except where such failure to be so qualified would not have, singly or in the aggregate, a Material Adverse Effect.
 
(t)                                     Each Owned Vessel is, and each Contracted Vessel will be, classed by any of Lloyd’s Register of Shipping, American Bureau of Shipping, Det Norske Veritas or a classification society which is a full member of the International Association of Classification Societies and each Owned Vessel is, and the Company will use commercially reasonable efforts to ensure each Contracted Vessel will be, in class with valid class and trading certificates, without any overdue recommendations.
 
(u)                                  All material Tax returns required to be filed by the Company and each of the Subsidiaries have been filed and all such returns are true, complete, and correct in all material
 
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respects.  All material Taxes that are due or claimed to be due from the Company and each of the Subsidiaries have been paid other than those (A) currently payable without penalty or interest or (B) being contested in good faith and by appropriate proceedings and for which, in the case of both clauses (A) and (B), adequate reserves have been established on the books and records of the Company and each of its Subsidiaries in accordance with GAAP.  There are no material Tax assessments proposed in writing against the Company or any of the Subsidiaries.  To the Company’s knowledge, the accruals and reserves on the books and records of the Company and each of the Subsidiaries in respect of any material Tax liability for any taxable period not finally determined are adequate to meet any assessments of Tax for any such period.  For purposes of this Agreement, the term “ Tax ” and “ Taxes ” shall mean all federal, state, local and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax or penalties applicable thereto.
 
(v)                                  Except as set forth in the Time of Sale Prospectus and the Prospectus, with respect to non-residents of the Marshall Islands, there are no documentary, stamp or other issuance or transfer taxes or duties or similar fees or charges under the laws of the Republic of the Marshall Islands, or any political subdivision of any thereof, required to be paid in connection with the execution and delivery of this Agreement or the Indenture or the issuance, sale and delivery of Securities pursuant hereto.
 
(w)                                Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, each of the Company and the Subsidiaries maintains insurance or participates in insurance clubs in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their business.  The Company has no reason to believe that it or any Subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not, singly or in the aggregate, result in a Material Adverse Effect.
 
(x)                                    The Company has not taken, directly or indirectly, any action that constitutes or is designed to cause or result in, or that would constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Securities.  The Company acknowledges that the Underwriters may engage in passive market making transactions in the Common Stock on the New York Stock Exchange in accordance with Regulation M under the Exchange Act.
 
(y)                                  There are no business relationships or related-party transactions involving the Company or any Subsidiary or any other person required by the Securities Act or otherwise to be described in the Time of Sale Prospectus or the Prospectus that have not been described as required.
 
(z)                                    The Company has not been advised, and has no reason to believe, that it and each of the Subsidiaries are not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it and each of the Subsidiaries is conducting business, except where failure to be so in compliance would not, singly or in the aggregate, result in a Material Adverse Effect.  Without limiting the generality of the foregoing, neither the Company nor any of the Subsidiaries nor, to the best of the Company’s knowledge, any employee or agent
 
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of the Company or any Subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal, state or foreign office in violation of any applicable law.
 
(aa)         The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act” ) and the applicable rules and regulations of the Commission and the New York Stock Exchange relating to the Sarbanes-Oxley Act.
 
(bb)         No labor disturbance by the employees of the Company or any Subsidiary exists or, to the Company’s knowledge, is imminent and the Company is not aware of any existing or imminent labor disturbances by the employees of any of its or any Subsidiary’s principal suppliers, shipyards, manufacturers, customers or contractors, that, in either case (singly or in the aggregate), would result in a Material Adverse Effect.
 
(cc)         Except as described in each of the Time of Sale Prospectus and the Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (i) neither the Company nor any of the Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “ Hazardous Materials ”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “ Environmental Laws ”), (ii) the Company and the Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (iii) there are no pending or, to the Company’s and each Subsidiary’s knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of the Subsidiaries and (iv) there are no events or circumstances that could reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of the Subsidiaries relating to Hazardous Materials or any Environmental Laws.
 
(dd)         Neither the Company nor any of the Subsidiaries has sustained since the date of the last audited financial statements incorporated by reference in the Time of Sale Prospectus any loss or interference with its respective business from the actual or constructive loss of or to any vessel or any other asset that is material to the Company or any of the Subsidiaries, the requisition for title of any vessel, fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that, singly or in the aggregate, resulted in a Material Adverse Effect.
 
(ee)         Other than in the ordinary course of business and except as disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company has not sent or received any
 
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communication regarding termination of, or intent not to renew, any of the charters or other contracts or agreements filed as an exhibit to the Registration Statement, and no such termination or non-renewal has been threatened by the Company or, to the Company’s knowledge, any other party to any such charter, contract or agreement.
 
(ff)           Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
 
(gg)         The Company has been advised of the rules and requirements under the Investment Company Act of 1940, as amended (the “ Investment Company Act ”).  The Company is not, and after giving effect to the offering and sale of the Securities as described in the Time of Sale Prospectus will not be, an “ investment company ” within the meaning of the Investment Company Act.
 
(hh)         Since July 21, 2005, neither the Company nor any Subsidiary has extended or maintained credit, arranged for the extension of credit, or renewed any extension of credit, in the form of a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company and/or such Subsidiary except for such extensions of credit as are expressly permitted by Section 13(k) of the Exchange Act and Marshall Islands law.
 
(ii)           To the Company’s knowledge, there are no affiliations or associations between any member of Financial Industry Regulatory Authority, Inc. (“ FINRA ”) and any of the Company’s officers, directors or 5% or greater security holders, except as set forth in each of the Time of Sale Prospectus and the Prospectus or as disclosed to the Managers.
 
(jj)           The Company is not a Passive Foreign Investment Company (“ PFIC ”) within the meaning of Section 1296 of the Internal Revenue Code of 1986, as amended, and expects to continue its operations in such a manner that it will not become a PFIC.
 
(kk)          Except as described in each of the Time of Sale Prospectus and the Prospectus, none of the Subsidiaries is prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s equity securities, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary.  Except as disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company is not prohibited by contract from declaring and paying dividends and making other distributions on shares of Common Stock.
 
(ll)            Except as described in each of the Time of Sale Prospectus and the Prospectus, the Company is not prohibited, directly or indirectly, under Marshall Islands law from paying any dividends or other distributions on shares of Common Stock.  Except as described in each of the Time of Sale Prospectus and the Prospectus, all dividends and other distributions declared and payable on shares of Common Stock may under the current laws and regulations of the Marshall Islands be paid in U.S. dollars and may be freely transferred out of the Marshall Islands, and all such dividends and other distributions will not be subject to withholding or other
 
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taxes under the current laws and regulations of the Marshall Islands and are otherwise free and clear of any other tax, withholding or deduction in and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses, registrations, clearances and qualifications of or with any court or governmental agency or body or any stock exchange authorities in the Marshall Islands.
 
(mm)       The Company is neither owned or controlled by, or under common control with, or acting on behalf of, nor owned or controlled by, or under common control with, or acting on behalf of, any entity that is owned or controlled by, or acting on behalf of, or is doing business with, (i) a terrorist-sponsoring country as designated by the U.S. Department of State, (ii) a country that is the subject of any sanctions program administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”), (iii) a person or entity identified on the Specially Designated Nationals and Blocked Persons List maintained by OFAC (31 C.F.R., Subtitle B, Chapter V, Appendix A) or (iv) any persons or entities the subject of U.S. trade sanctions under the Trading with the Enemy Act, as amended, or the International Emergency Economic Powers Act, as amended.
 
(nn)         The Company is not, and to the knowledge of the Company, no director, officer, agent, employee or affiliate of the Company is the subject of any sanctions administered by OFAC.
 
(oo)         The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries with respect to any such laws is pending or, to the Company’s knowledge, threatened.
 
(pp)         Neither the Company nor any of its subsidiaries or affiliates, nor any of its or their officers, directors, employees or agents, in their capacities as such, nor any other person acting on behalf of the Company, has made any payments, loans, gifts, or promises or offers of payments, loans, gifts or anything of value, directly or indirectly to or for the use or benefit in whole or in part of, any officer or employee of a Governmental Authority (defined below), or any person acting in an official capacity for or on behalf of any Governmental Authority (a “ Public Official ”) or state-owned company or other state-owned enterprise, or to or for the use of any political party or official thereof, or candidate for political office, or to any other person if any such party knew or should have known or had reason to suspect, that any part of such payment, loan, gift or promise or offer, (i) was for purposes of corruptly (A) influencing any act or decision of the recipient in its official capacity, (B) inducing such recipient to (1) do or omit to do any act in violation of its lawful duty or (2) use its influence to affect or influence any act or decision of any Governmental Authority, or (C) securing any improper advantage, in each case, in order to assist the parties in obtaining or retaining business for or with, or directing business to, any person unless such payment, loan, gift or promise or offer thereof is lawful under written applicable law of the relevant jurisdiction or (ii) would violate the Foreign Corrupt Practices Act, the OECD Convention on Combating Bribery of Foreign Public Officials in International
 
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Business Transactions and similarly applicable laws or requirements (the “ Anti-Corruption Statutes ”).  For purposes of this representation and warranty, the term “ Governmental Authority ” means any public international, multinational or transnational organization or any national, state, municipal or local governmental, judicial, legislative, administrative or other authority, ministry, department, agency, instrumentality, office or organization.  Each of the Company, its subsidiaries and affiliates has conducted its business in compliance with the Anti-Corruption Statutes and has implemented and maintained policies and procedures designed to ensure, and that are expected to continue to ensure, continued compliance therewith.
 
(qq)        The Company and each of its subsidiaries is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); and neither the Company nor any of its subsidiaries is or ever has been the sponsor of or otherwise liable under or with respect to any “pension plan” (as defined in ERISA).
 
(rr)          The Company has not issued any options under the Company’s stock option or other employee benefit plans or arrangements.
 
(ss)         The industry, statistical and market-related data included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus are derived from sources that the Company reasonably and in good faith believes to be accurate, reasonable and reliable, and such data agree with the sources from which they were derived.
 
(tt)           The Company acknowledges in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
 
2.             Agreements to Sell and Purchase .  The Company hereby agrees to sell to each of the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company, at a purchase price of 97.0% of the principal amount thereof (the “ Purchase Price ”) plus accrued interest, if any, from July 27, 2010 to the Closing Date, the principal amount of Firm Securities set forth opposite the name of such Underwriter on Schedule II hereto.
 
On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company further agrees to sell to the several Underwriters the Additional Securities, and the Underwriters shall have the right to purchase from the Company, severally and not jointly, up to $15,000,000 aggregate principal amount of Additional Securities at a price equal to the Purchase Price plus accrued interest, if any, from the Closing Date to the Option Closing Date.  The Managers may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of the Prospectus.  Any exercise notice shall specify the aggregate principal amount of Additional Securities to be purchased by the Underwriters and the date on which such
 
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Additional Securities are to be purchased.  Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Securities nor later than ten business days after the date of such notice.  On each day, if any, that Additional Securities are to be purchased (an “ Option Closing Date ”), each Underwriter agrees, severally and not jointly, to purchase from the Company the aggregate principal amount of Additional Securities (subject to such adjustments to ensure minimum denominations of Securities of $1,000 as you may determine) that bears the same proportion to the aggregate principal amount of Additional Securities to be purchased on such Option Closing Date as the aggregate principal amount of Firm Securities set forth in Schedule II hereto opposite the name of such Underwriter bears to the aggregate principal amount of Firm Securities.
 
3.             Public Offering .  The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable.  The Company is further advised by you that the Securities are to be offered to the public upon the terms set forth in the Prospectus.
 
4.             Payment and Delivery .  Payment for the Firm Share Securities shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Firm Securities for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on July 27, 2010, or at such other time on the same or such other date, not later than August 3, 2010, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “ Closing Date .”
 
Payment for any Additional Securities shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Securities for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the Option Closing Date specified in the corresponding notice described in Section 2 or at such other time on the same or on such other date, in any event not later than the tenth business day thereafter, as may be designated in writing by you.
 
The Firm Securities and the Additional Securities shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Securities and the Additional Securities shall be delivered to you on the Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid by the Company, against payment therefor.
 
5.             Conditions to the Underwriters’ Obligations .  The several obligations of the Underwriters are subject to the following conditions:
 
(a)           Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
 
(i)            there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible
 
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change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
 
(ii)           there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and the Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (excluding any amendments or supplements thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
 
(b)           The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
 
The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
 
(c)           The Underwriters shall have received on the Closing Date the opinion of Reeder & Simpson P.C., outside Marshall Islands counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit A.
 
(d)           The Underwriters shall have received on the Closing Date: (i) the opinion of Kramer Levin Naftalis & Frankel LLP, outside United States counsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit B; (ii) a “negative assurance” letter of Kramer Levin Naftalis & Frankel LLP, dated the Closing Date, in the form attached hereto as Exhibit C; and (iii) the opinion of Seward & Kissel LLP, special outside United States counsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit D.
 
(e)           The Underwriters shall have received on the Closing Date an opinion of Baker Botts L.L.P., counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
 
The opinions of Reeder & Simpson P.C., Kramer Levin Naftalis & Frankel LLP and Seward & Kissel LLP described in Sections 5(c) and (d) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
 
(f)            The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement,
 
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the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the day immediately preceding the date hereof.
 
(g)           The “lock-up” agreements, each substantially in the form of Exhibit E hereto, between the Managers, on behalf of the Underwriters, and the officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Managers on or before the date hereof, shall be in full force and effect on the Closing Date; provided, however, that the lock-up agreement with Mr. Stephen A. Kaplan shall not cover any shares beneficially owned by OCM Fleet Acquisition LLC that may also be deemed to be beneficially owned by him; provided, further, that the lock-up agreements with Mr. Peter C. Georgiopoulos and Mr. John C. Wobensmith shall be in the form of Exhibit F hereto (with the financial institution referred to in the second paragraph thereof, in the case of Mr. Wobensmith, being changed to “Jefferies & Company, Inc.”).
 
(h)           The Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b) under the Securities Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.
 
(i)            The New York Stock Exchange shall have approved the Underlying Shares issuable on conversion of the Securities for listing, subject only to official notice of issuance.
 
The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents (including updated versions of the documents referred to in Section 5(b) through (f) hereof) as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Additional Securities.
 
6.             Covenants of the Company.   (a)  The Company covenants with each Underwriter as follows:
 
(i)            To furnish to you, without charge, a signed copy of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to deliver to each of the Underwriters during the period mentioned in Section 6(a)(v) or 6(a)(vi) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
 
(ii)           Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement
 
17 

 
to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
 
(iii)          To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
 
(iv)          Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
 
(v)           If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
 
(vi)          If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
 
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(vii)         To endeavor to qualify the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as you shall reasonably request.
 
(viii)        To make generally available to the Company’s security holders and to you an earnings statement (which need not be audited) for the twelve-month period beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
 
(ix)           If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
 
(x)            To prepare a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Managers, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
 
(xi)           To pay the required Commission filing fees relating to the Securities within the time period required by Rule 456(b) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and Rule 457(r) under the Securities Act.
 
(xii)          To apply the net proceeds received by it from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus.
 
(xiii)         To use commercially reasonable efforts to maintain the listing of the Underlying Shares issuable on conversion of the outstanding Securities on the New York Stock Exchange.
 
(xiv)         To reserve and keep available at all times, free of preemptive rights, sufficient Underlying Shares to enable the Company to satisfy any obligation to issue Underlying Shares upon conversion of the Securities.
 
(xv)          Between the date hereof and the Closing Date, not to do or authorize any act or thing that would result in an adjustment of the conversion rate of the Securities (other than as contemplated by the Operative Documents, the Time of Sale Prospectus or the Prospectus).
 
(b)           The Company hereby covenants and agrees that, without the prior written consent of each of the Managers, on behalf of the Underwriters, it will not, during the period ending 90 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or
 
19 

 
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock other than the Shares to be sold in the Equity Offering, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (3) file any registration statement, other than the Time of Sale Prospectus and the Prospectus, with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (4) publicly disclose an intention to do any of the foregoing.
 
The restrictions contained in the immediately preceding paragraph shall not apply in respect of: (a) the Securities to be sold hereunder or the Underlying Shares, (b) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing or which is described in the Time of Sale Prospectus, (c) the grant by the Company of options or the issuance of shares of restricted stock or restricted stock units by the Company to employees, officers, directors, advisors or consultants pursuant to any employee benefit plan referred to in the Time of Sale Prospectus and (d) the filing of any registration statement on Form S-8 in respect of any employee benefit plan referred to in the Time of Sale Prospectus.
 
The lock-up period described in the proceeding paragraph will be extended if (i) during the last 17 days of the lock-up period the Company issues a release about earnings or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the lock-up period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the lock-up period, in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issuance of the release or the occurrence of the material news or material event.  The Company shall promptly notify each of the Managers of any earnings release, news or event that may give rise to an extension of the initial lock-up period.
 
7.             Covenants of the Underwriters .  Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
 
8.             Expenses .  Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and
 
20 

 
amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities, all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any blue sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(a)(vii) hereof, including filing fees and the reasonable fees and disbursements of counsel to the Underwriters (not to exceed $5,000) in connection with such qualification and in connection with the blue sky or legal investment memorandum, (iv) any filing fees and the reasonable fees and disbursements of counsel to the Underwriters (not to exceed $5,000) incurred in connection with any review and qualification of the offering of the Securities by FINRA, (v) any fees charged by the rating agencies for the rating of the Securities, if any, (vi) the cost of the preparation, issuance and delivery of the Securities, (vii) the costs and expenses incident to listing the Underlying Shares on the New York Stock Exchange, (viii) the costs and charges of any transfer agent, registrar or depositary, (ix) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation of or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (x) the document production charges and expenses associated with printing this Agreement and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section 8. It is understood, however, that except as provided in this Section 8, Section 9 entitled “Indemnity and Contribution” and the last paragraph of Section 11 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, travel and lodging expenses of the representatives and officers of the Underwriters, stock transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
 
9.             Indemnity and Contribution .    (a) The Company agrees to indemnify and hold harmless each Underwriter, its directors and officers and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
 
21 

 
prospectus or the Prospectus, in the light of the circumstances under which any such statements were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, which information is specified in Section 9(g) below.
 
(b)           Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus (as amended or supplemented if the Company shall have furnished any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus, in the light of the circumstances under which any such statements were made) not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendments or supplements thereto, which information is specified in Section 9(g) below.
 
(c)           In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b), such person (the “ indemnified party ”) shall promptly notify the person against whom such indemnity may be sought (the “ indemnifying party ”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any other persons entitled to indemnification hereunder in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding, but the omission so to notify the indemnifying party shall not relieve it from liability that it may have to any indemnified party otherwise. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all the indemnified parties, and that all such fees and expenses
 
22 

 
shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by Deutsche Bank Securities Inc.  In the case of any such separate firm for the Company and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
 
(d)           To the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 9(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(d)(i) above but also the relative fault of the indemnifying party or parties, on the one hand, and of the indemnified party or parties, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Underwriters in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Securities set forth in the Prospectus.  The relative fault of the Company and the Underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’
 
23 

 
respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective aggregate principal amount of Securities they have purchased hereunder, and not joint.
 
(e)           The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the aggregate principal amount of Securities underwritten by such Underwriter and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
 
(f)            The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
 
(g)           The Underwriters confirm and the Company acknowledges and agrees that the following information included in the most recent preliminary prospectus and the Prospectus constitutes the only information relating to any of the Underwriters furnished in writing to the Company by or on behalf of any of the Underwriters specifically for inclusion in the Registration Statement, any preliminary prospectus relating to the offering of the Securities, the Time of Sale Prospectus, any issuer free writing prospectus relating to the offering of the Securities or the Prospectus or in any amendment or supplement to any of the foregoing: (i) the tenth paragraph on the cover page regarding delivery of Securities by the Underwriters and (ii) the third paragraph relating to concession and reallowance figures and the 13th, 14th, 15th, 16th and 17th paragraphs relating to stabilization by the Underwriters under the caption “Underwriting.”
 
10.           Termination .  The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities
 
24 

 
settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and that, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
 
11.           Effectiveness; Defaulting Underwriters .  This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
 
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Firm Securities set forth opposite their respective names in Schedule II bears to the aggregate principal of Firm Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Securities that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the aggregate principal amount of Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 11 by an amount in excess of one-tenth of such principal amount of Securities without the written consent of such Underwriter.  If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Securities and the aggregate principal amount of Firm Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Firm Securities to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company.  In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected.  If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Securities and the aggregate principal amount of Additional Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Additional Securities to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Securities to be sold on such Option Closing Date or (ii) purchase not less than the aggregate principal amount of Additional Securities that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default.  Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
 
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
 
25 

 
conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
 
12.           Entire Agreement .     (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Securities, represents the entire agreement between the Company and the Underwriters with respect to the preparation of the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Securities.
 
(b)           The Company acknowledges that in connection with the offering of the Securities: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company.  The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.
 
13.           Counterparts .  This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
 
14.           Applicable Law .  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any rules of conflict of laws thereof that would result in the application of the laws of any other jurisdiction.
 
15.           Headings .  The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
 
16.           Notices .  All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to you in care of Deutsche Bank Securities Inc., 60 Wall Street, 4th Floor, New York, New York 10005, Attention: Equity Capital Markets—Syndicate Desk (with a copy to Deutsche Bank Securities, Inc., 60 Wall Street, New York, New York 10005, Attention: General Counsel); and if to the Company shall be delivered, mailed or sent to Genco Shipping & Trading Limited, 299 Park Avenue, 20th Floor, New York, New York 10171, Attention:  John C. Wobensmith.
 
[ Signature Pages Follow ]
 
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 	Very truly yours,	
 	 	
 	GENCO SHIPPING & TRADING LIMITED	

 	By:	/s/ John C. Wobensmith	
 	 	Name: John C. Wobensmith	
 	 	Title:  Chief Financial Officer, Secretary and Treasurer	
 
Signature Page to Underwriting Agreement

 

Accepted by the Managers as of the date hereof, acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto.	 	

By:	DEUTSCHE BANK SECURITIES INC.	 	

 	By:	/s/ Craig Fuehrer	 	
 	 	Name: Craig Fuehrer	 	
 	 	Title:   Managing Director	 	

 	By:	/s/ Isobel van Daesdonk	 	
 	 	Name: Isobel van Daesdonk	 	
 	 	Title:   Director	 	

By:	BNP PARIBAS SECURITIES CORP.	 	

 	By:	/s/ Pierre Lapomme	 	
 	 	Name: Pierre Lapomme	 	
 	 	Title:   Managing Director	 	

 	By:	/s/ Michael Murphy	 	
 	 	Name: Michael Murphy	 	
 	 	Title:   Director	 	

By:	CREDIT SUISSE SECURITIES (USA) LLC	 	

 	By:	/s/ David Herman	 	
 	 	Name: David Herman	 	
 	 	Title:   Director	 	

 	By:	/s/ Joe Reece	 	
 	 	Name: Joe Reece	 	
 	 	Title:   Managing Director	 	
 
Signature Page to Underwriting Agreement

 

SCHEDULE I

Managers:	Deutsche Bank Securities Inc.
BNP Paribas Securities Corp.
Credit Suisse Securities (USA) LLC	
 	 	
Indenture:	Indenture to be dated as of July 27, 2010 between the Company and the Trustee, as supplemented by the First Supplemental Indenture, to be dated as of July 27, 2010, between the Company and the Trustee	
 	 	
Trustee:	The Bank of New York Mellon, National Association	
 	 	
Registration Statement File No.:	Registration Statement on Form S-3 (File No. 333-155758)	
 	 	
Time of Sale Prospectus	·	Prospectus dated February 27, 2009 relating to the Shelf Securities	
 	·	The preliminary prospectus supplement dated July 21, 2010 relating to the Securities	
 	·	Term Sheet dated July 21, 2010	
 	 	 	
Securities to be purchased:	5.00% Convertible Senior Notes due 2015	
 	 	
Aggregate Principal Amount of Firm Securities:	$110,000,000	
 	 	
Aggregate Principal Amount of Additional Securities:	$15,000,000	
 	 	
Purchase Price:	97.0% of the principal amount of the Securities, plus accrued interest, if any, from July 27, 2010	
 	 	
Maturity:	August 15, 2015	
 	 	
Interest Rate:	5.00% per annum, accruing from July 27, 2010	
 	 	
Interest Payment Dates:	February 15 and August 15 of each year, commencing February 15, 2011	
 	 	
Closing Date and Time:	July 27, 2010, 10:00 a.m., New York City time	
 	 	
Closing Location:	Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036	

 
SCHEDULE II

Underwriters	 	Aggregate Principal Amount
of Firm Securities
To Be Purchased	 	
Deutsche Bank Securities Inc.	 	$	44,000,000	 	
BNP Paribas Securities Corp.	 	$	22,000,000	 	
Credit Suisse Securities (USA) LLC	 	$	22,000,000	 	
Credit Agricole Securities (USA) Inc.	 	$	14,300,000	 	
DVB Capital Markets LLC	 	$	5,500,000	 	
Knight Capital Markets LLC	 	$	2,200,000	 	
Total:	 	$	110,000,000	 	

 
SCHEDULE III
 
Company Subsidiaries

Subsidiary	 	Jurisdiction of Organization	
Genco Beauty Limited	 	Marshall Islands	
Genco Knight Limited	 	Marshall Islands	
Genco Leader Limited	 	Marshall Islands	
Genco Vigour Limited	 	Marshall Islands	
Genco Success Limited	 	Marshall Islands	
Genco Carrier Limited	 	Marshall Islands	
Genco Prosperity Limited	 	Marshall Islands	
Genco Wisdom Limited	 	Marshall Islands	
Genco Marine Limited	 	Marshall Islands	
Genco Explorer Limited	 	Marshall Islands	
Genco Pioneer Limited	 	Marshall Islands	
Genco Progress Limited	 	Marshall Islands	
Genco Reliance Limited	 	Marshall Islands	
Genco Sugar Limited	 	Marshall Islands	
Genco Muse Limited	 	Marshall Islands	
Genco Acheron Limited	 	Marshall Islands	
Genco Surprise Limited	 	Marshall Islands	
Genco Augustus Limited	 	Marshall Islands	
Genco Tiberius Limited	 	Marshall Islands	
Genco Titus Limited	 	Marshall Islands	
Genco Constantine Limited	 	Marshall Islands	
Genco London Limited	 	Marshall Islands	
Genco Hadrian Limited	 	Marshall Islands	
Genco Commodus Limited	 	Marshall Islands	
Genco Maximus Limited	 	Marshall Islands	
Genco Claudius Limited	 	Marshall Islands	
Genco Predator Limited	 	Marshall Islands	
Genco Warrior Limited	 	Marshall Islands	
Genco Hunter Limited	 	Marshall Islands	
 
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Subsidiary	 	Jurisdiction of Organization	
Genco Challenger Limited	 	Marshall Islands	
Genco Charger Limited	 	Marshall Islands	
Genco Champion Limited	 	Marshall Islands	
Genco Investments LLC	 	Marshall Islands	
Genco Raptor LLC	 	Marshall Islands	
Genco Cavalier LLC	 	Marshall Islands	
Genco Thunder LLC	 	Marshall Islands	
Genco Aquitaine Limited	 	Marshall Islands	
Genco Ardennes Limited	 	Marshall Islands	
Genco Auvergne Limited	 	Marshall Islands	
Genco Bourgogne Limited	 	Marshall Islands	
Genco Brittany Limited	 	Marshall Islands	
Genco Languedoc Limited	 	Marshall Islands	
Genco Loire Limited	 	Marshall Islands	
Genco Lorraine Limited	 	Marshall Islands	
Genco Normandy Limited	 	Marshall Islands	
Genco Picardy Limited	 	Marshall Islands	
Genco Provence Limited	 	Marshall Islands	
Genco Pyrenees Limited	 	Marshall Islands	
Genco Rhone Limited	 	Marshall Islands	
Genco Bay Limited	 	Marshall Islands	
Genco Ocean Limited	 	Marshall Islands	
Genco Avra Limited	 	Marshall Islands	
Genco Mare Limited	 	Marshall Islands	
Genco Spirit Limited	 	Marshall Islands	
Genco Diocletian Limited	 	Marshall Islands	
Genco Valerian Limited	 	Marshall Islands	
Genco Trajan Limited	 	Marshall Islands	
Genco Ship Management LLC	 	Delaware	
Genco Management (USA) LLC	 	Delaware	
Baltic Trading Limited	 	Marshall Islands	
 
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Subsidiary	 	Jurisdiction of Organization	
Baltic Bear Limited	 	Marshall Islands	
Baltic Breeze Limited	 	Marshall Islands	
Baltic Cougar Limited	 	Marshall Islands	
Baltic Cove Limited	 	Marshall Islands	
Baltic Jaguar Limited	 	Marshall Islands	
Baltic Leopard Limited	 	Marshall Islands	
Baltic Panther Limited	 	Marshall Islands	
Baltic Wind Limited	 	Marshall Islands	
Baltic Wolf Limited	 	Marshall Islands	
 
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SCHEDULE IV
 
Ownership of Vessels

Vessel	 	Subsidiary	
Genco Beauty	 	Genco Beauty Limited
(Marshall Islands)	
Genco Knight	 	Genco Knight Limited
(Marshall Islands)	
Genco Leader	 	Genco Leader Limited
(Marshall Islands)	
Genco Vigour	 	Genco Vigour Limited
(Marshall Islands)	
Genco Success	 	Genco Success Limited
(Marshall Islands)	
Genco Carrier	 	Genco Carrier Limited
(Marshall Islands)	
Genco Prosperity	 	Genco Prosperity Limited
(Marshall Islands)	
Genco Wisdom	 	Genco Wisdom Limited
(Marshall Islands)	
Genco Marine	 	Genco Marine Limited
(Marshall Islands)	
Genco Explorer	 	Genco Explorer Limited
(Marshall Islands)	
Genco Pioneer	 	Genco Pioneer Limited
(Marshall Islands)	
Genco Progress	 	Genco Progress Limited
(Marshall Islands)	
Genco Reliance	 	Genco Reliance Limited
(Marshall Islands)	
Genco Sugar	 	Genco Sugar Limited
(Marshall Islands)	
Genco Muse	 	Genco Muse Limited
(Marshall Islands)	
Genco Acheron	 	Genco Acheron Limited
(Marshall Islands)	
Genco Surprise	 	Genco Surprise Limited
(Marshall Islands)	
 
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Vessel	 	Subsidiary	
Genco Augustus	 	Genco Augustus Limited
(Marshall Islands)	
Genco Tiberius	 	Genco Tiberius Limited
(Marshall Islands)	
Genco London	 	Genco London Limited	
 	 	(Marshall Islands)	
Genco Titus	 	Genco Titus Limited	
 	 	(Marshall Islands)	
Genco Challenger	 	Genco Challenger Limited	
 	 	(Marshall Islands)	
Genco Charger	 	Genco Charger Limited	
 	 	(Marshall Islands)	
Genco Warrior	 	Genco Warrior Limited	
 	 	(Marshall Islands)	
Genco Predator	 	Genco Predator Limited	
 	 	(Marshall Islands)	
Genco Hunter	 	Genco Hunter Limited	
 	 	(Marshall Islands)	
Genco Champion	 	Genco Champion Limited	
 	 	(Marshall Islands)	
Genco Constantine	 	Genco Constantine Limited	
 	 	(Marshall Islands)	
Genco Hadrian	 	Genco Hadrian Limited	
 	 	(Marshall Islands)	
Genco Commodus	 	Genco Commodus Limited	
 	 	(Marshall Islands)	
Genco Maximus	 	Genco Maximus Limited	
 	 	(Marshall Islands)	
Genco Claudius	 	Genco Claudius Limited
(Marshall Islands)	
Genco Raptor	 	Genco Raptor LLC
(Marshall Islands)	
Genco Thunder	 	Genco Thunder LLC
(Marshall Islands)	
Genco Cavalier	 	Genco Cavalier LLC
(Marshall Islands)	
Baltic Bear	 	Baltic Bear Limited
(Marshall Islands)	
 
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Vessel	 	Subsidiary	
Baltic Cougar	 	Baltic Cougar Limited
(Marshall Islands)	
Baltic Jaguar	 	Baltic Jaguar Limited
(Marshall Islands)	
Baltic Leopard	 	Baltic Leopard Limited
(Marshall Islands)	
Baltic Panther	 	Baltic Panther Limited
(Marshall Islands)	
 
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Exhibit 1.2
 
Execution Version
 
3,125,000 Shares
 
Genco Shipping & Trading Limited
 
Common Stock
 
UNDERWRITING AGREEMENT
 
July 21, 2010
 
To the Managers named in Schedule I hereto
for the Underwriters named in Schedule II hereto
 
Ladies and Gentlemen:
 
Genco Shipping & Trading Limited, a Marshall Islands company (the “ Company ”), proposes to issue and sell to the several underwriters named in Schedule II hereto (the “ Underwriters ”), for whom you are acting as managers (the “ Managers ”), an aggregate of 3,125,000 shares (the “ Firm Shares ”) of common stock, par value $0.01 per share, of the Company (“ Common Stock ”).
 
The Company also proposes to issue and sell to the several Underwriters not more than an aggregate of 468,750 shares of Common Stock (the “ Additional Shares ”), if and to the extent that you, as Managers, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of Common Stock granted to the Underwriters in Section 2 hereof.  The Firm Shares and the Additional Shares are hereinafter referred to as the “ Shares .”  If the firm or firms listed in Schedule II hereto include only the Managers listed in Schedule I hereto, then the terms “Underwriters” and “Managers” as used herein shall each be deemed only to refer to such firm or firms.
 
The Company has filed with the Securities and Exchange Commission (the “ Commission ”) a registration statement, including a prospectus, on Form S-3 (File No. 333-155758), relating to certain securities of the Company (the “ Shelf Securities ”), including the Shares, to be offered and sold from time to time by the Company.  The registration statement as amended to the date of this underwriting agreement (this “ Agreement ”), including all documents filed as part thereof or incorporated by reference therein, together with the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “ Securities Act ”), is hereinafter referred to as the “ Registration Statement ,” and the related prospectus covering the Shelf Securities dated February 27, 2009 in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is

 
hereinafter referred to as the “ Base Prospectus. ”  The Base Prospectus, as supplemented by the prospectus supplement specifically relating to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “ Prospectus ,” and the term “ preliminary prospectus ” means any preliminary form of the Prospectus.
 
For purposes of this Agreement, “ free writing prospectus ” has the meaning set forth in Rule 405 under the Securities Act, “ Time of Sale Prospectus ” means the preliminary prospectus together with the free writing prospectuses each identified in Schedule I hereto and “ broadly available road show ” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person.  As used herein, the terms “Registration Statement,” “Base Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein.  The terms “ supplement ,” “ amendment ,” and “ amend ” as used herein with respect to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the Prospectus, any preliminary prospectus or free writing prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), that are deemed to be incorporated by reference therein.
 
Concurrently with the offering of the Shares, the Company intends to offer $110,000,000 aggregate principal amount of notes (together with up to an additional $15,000,000 aggregate principal amount of such notes subject to an option granted to underwriters), which will be convertible into shares of Common Stock, cash or a combination of both in an underwritten offering to be made pursuant to the Registration Statement, in accordance with a separate underwriting agreement entered into concurrently with this Agreement (the “ Convertible Notes Offering ”).
 
1.             Representations and Warranties of the Company .  The Company hereby represents and warrants to and agrees with each of the Underwriters that:
 
(a)           The Company meets the requirements for use of Form S-3 under the Securities Act.  As of the date of this Agreement, the Company met, and as of the Closing Date and any Option Closing Date, the Company will meet, the requirements of Form S-3 pursuant to the standards for that form prior to October 21, 1992.  Without limiting the generality of the foregoing, as of such dates, the Company has been or will be timely in meeting its reporting obligations under the Exchange Act during the immediately preceding 12 months and has or will have an aggregate market capitalization held by non-affiliates of greater than $150 million.  The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the knowledge of the Company, threatened by the Commission.  The Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information.
 
(b)           A “bona fide public market” (as defined in NASD Conduct Rule 2720(f)(3) of Financial Industry Regulatory Authority, Inc. (“ FINRA ”)) for the Common Stock exists.
 
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(c)           Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
 
(d)           (i) Each document filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date and any Option Closing Date (as each such term is defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Managers expressly for use therein, which information is specified in Section 9(g) of this Agreement.
 
(e)           The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act.  Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.  Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.  Except for the free writing prospectuses each identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic road shows, if any, each furnished to you before first use, the Company has not
 
3 

 
prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
 
(f)            Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus and, since the date of the last audited financial statements incorporated by reference into the Time of Sale Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and the subsidiaries of the Company listed on Schedule III to this Agreement (each, a “ Subsidiary ” and collectively, the “ Subsidiaries ”), taken as a whole; (ii) the Company and the Subsidiaries, considered as one entity, have neither incurred any material liability or obligation (including any off-balance sheet obligation), indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other Subsidiaries, any of the Subsidiaries on any class of capital stock or share capital or repurchase or redemption by the Company or any of the Subsidiaries of any class of capital stock or share capital.
 
(g)           Each of the Company and the Subsidiaries has been duly organized and is validly existing as a corporation, or company with limited liability, as applicable, in good standing under the laws of the Marshall Islands or the State of Delaware, as applicable, and has the power and authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Time of Sale Prospectus and, in the case of the Company, to enter into and perform its obligations under this Agreement.  Each of the Company and each Subsidiary is duly qualified as a foreign corporation, or company with limited liability, as applicable, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified would not, singly or in the aggregate, result in a material adverse effect on the condition (financial or otherwise), earnings, business, operations or prospects of the Company and the Subsidiaries, taken as a whole (a “ Material Adverse Effect ”).  All of the issued and outstanding capital stock or other equity or ownership interest of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, except as set forth in each of the Time of Sale Prospectus and the Prospectus, is owned by the Company, directly or indirectly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim.  None of the issued and outstanding shares of capital stock or other equity or ownership interest of any Subsidiary were issued in violation of preemptive or other similar rights of any security holder of such Subsidiary.  The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries.
 
(h)           This Agreement has been duly authorized, executed and delivered by the Company.
 
(i)            The statements in the Time of Sale Prospectus and the Prospectus under the headings “Description of Debt Securities,” “Description of Other Indebtedness” and “Tax Considerations”, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters,
 
4 

 
agreements, documents or proceedings and present the information required to be presented under the Securities Act and the rules and regulations promulgated thereunder, in each case in all material respects.
 
(j)            As of July 20, 2010, the Company’s authorized capital stock consists of 100,000,000 shares of common stock, par value $0.01 per share, of which 31,932,798 shares are issued and outstanding, and 25,000,000 shares of preferred stock, par value $0.01 per share, of which no shares were issued and outstanding.  The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
 
(k)           The Shares to be issued and sold by the Company to the Underwriters hereunder have been duly authorized and, when issued and delivered against payment therefor as provided herein, will be validly issued, fully paid and non-assessable and will have been issued in compliance with federal and state securities laws and Marshall Islands law, and none of the Shares will be issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company.  All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and non-assessable and have been issued in compliance with federal and state securities laws and Marshall Islands law.  None of the outstanding shares of Common Stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company.  There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any share capital of the Company or any of the Subsidiaries other than those accurately described in each of the Time of Sale Prospectus and the Prospectus.
 
(l)            There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived in writing.
 
(m)          Deloitte & Touche LLP, who has certified the financial statements incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus, are independent registered public accountants as required by the Securities Act.
 
(n)           The financial statements incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly the consolidated financial position of the Company and the Subsidiaries as of and at the dates indicated therein and the results of their operations and cash flows for the periods specified therein.  Such financial statements have been prepared in (i) conformity with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis throughout the periods involved and (ii) all material respects in compliance with the applicable requirements of the Securities Act.  No other financial statements or supporting schedules are required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus.  To the Company’s knowledge, after reasonable inquiry, no person who has been suspended or barred from being associated with a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated by the Public Company Accounting Oversight Board, has participated in or otherwise aided the preparation of, or audited, the financial
 
5 

 
statements, supporting schedules or other financial data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
 
(o)           The Company and each of the Subsidiaries makes and keeps accurate books and records and maintains systems of accounting and disclosure controls and procedures sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) all information (both financial and non-financial) required to be disclosed by the Company and the Subsidiaries in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and regulations of the Exchange Act, and that all such information is accumulated and communicated to the management of the Company and the Subsidiaries as appropriate to allow timely decisions regarding required disclosure and to make the certifications required under the Exchange Act with respect to such reports.
 
(p)           Neither the Company nor any of the Subsidiaries (i) is in violation of any provision of any of its articles of incorporation, bylaws or other charter documents or (ii) is in default (or, with the giving of notice or lapse of time, would be in default) (“ Default ”) under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which it or any of them may be bound (including, without limitation, the debt instruments referred to in each of the Time of Sale Prospectus and the Prospectus and/or filed as exhibits to the Registration Statement), or to which any of the property or assets of the Company or any of the Subsidiaries is subject (each, an “ Existing Instrument ”), except for such Defaults under clause (ii) above as would not, singly or in the aggregate, result in a Material Adverse Effect.  The Company’s execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby and by the Time of Sale Prospectus and the Prospectus and the issuance and sale of the Shares (i) have been duly authorized by all necessary corporate action and will not result in any violation of any of the provisions of any of the articles of incorporation, bylaws or other charter documents of the Company or any Subsidiary, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any security interest, mortgage, pledge, lien, encumbrance or adverse claim upon any property or assets of the Company or any of the Subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company or any Subsidiary.  No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Company’s execution, delivery or performance of this Agreement, the consummation of the transactions contemplated hereby and by the Time of Sale Prospectus and the Prospectus and the issuance and sale of the Shares, except such as (i) have been obtained or made by the Company and are in full force and effect or (ii) may be required under applicable state securities or blue sky laws.  As used herein, a “ Debt Repayment Triggering Event ” means any event or condition that gives, or with the giving of notice or lapse of time would give,
 
6 

 
the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.
 
(q)           Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, there are no legal or governmental actions, suits or proceedings pending, to which the Company or any Subsidiary is a party or of which any property, operations or assets of the Company or any Subsidiary is the subject that (individually or in the aggregate), if determined adversely to the Company or any Subsidiary, would, singly or in the aggregate, result in a Material Adverse Effect or adversely affect the consummation of the transactions contemplated by this Agreement or the power or ability of the Company to perform its obligations under this Agreement or would be material in the context of the sale of shares of Common Stock; to the Company’s knowledge, no such proceeding, litigation or arbitration is threatened or contemplated; and the defense of all such proceedings, litigation and arbitration against or involving the Company or any Subsidiary would not, singly or in the aggregate, result in a Material Adverse Effect.  To the knowledge of the Company, no claim has been asserted against any director or officer of the Company that is premised upon a breach of fiduciary duty owed to the Company or any other person by such director or officer based upon such director’s or officer’s involvement in the formation or management of, or other activities undertaken in connection with, either the Company or the offering of the Shares, and no basis for any such claim exists.
 
(r)            Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company and each Subsidiary possess such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, and neither the Company nor any Subsidiary has received, or to the Company’s and each Subsidiary’s knowledge expects to receive, any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could result in a Material Adverse Effect.
 
(s)           Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company and each of the Subsidiaries has good and marketable title to all of the personal property owned by them, in each case free and clear of any security interests, mortgages, pledges, liens, encumbrances, equities, adverse claims and other defects, except for any maritime or other liens incurred in the ordinary course of business that do not materially and adversely affect the value of such property and do not materially interfere with the use made or proposed to be made of such property by the Company or such Subsidiary.  The real property held under lease by the Company or any Subsidiary are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or proposed to be made of such real property by the Company or such Subsidiary.  Each of the vessels currently in the fleet of the Company (the “ Company Fleet ”) is duly registered in the name of the Subsidiary that owns it under the laws and regulations and the flag of the nation of such vessel’s registration, and no other action is necessary to establish and perfect such Subsidiary’s title to and interest in the vessel as against any charterer or other third party.  Each of the vessels in the Company Fleet (each, an “ Owned Vessel ”) is owned directly by one of the
 
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Subsidiaries as indicated in Schedule IV, free and clear of all security interests, mortgages, pledges, liens, encumbrances, equities, adverse claims and other defects, except for any maritime or other liens incurred in the ordinary course of business that do not materially and adversely affect the value of such Owned Vessel and do not materially interfere with the use made or proposed to be made of such Owned Vessel by the Company or such Subsidiary, or except such as described in each of the Time of Sale Prospectus and the Prospectus and such as are not material and do not interfere with the ownership or operation of such Owned Vessel.  Each such Owned Vessel is in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of the jurisdiction where it is registered as would affect its registry with the ship registry of such jurisdiction except for failures to be in good standing which would not, singly or in the aggregate, result in a Material Adverse Effect. Upon delivery to and acceptance by the relevant subsidiary of the Company under the memoranda of agreement or the new-building contracts described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, each of the vessels described in the Registration Statement, the Time of Sale Prospectus and the Prospectus as being under contract for delivery to the Company or a subsidiary of the Company (the “ Contracted Vessels ”) will be duly registered as a vessel under the laws and regulations of the jurisdiction of such vessel’s registration, and, on the date of such delivery, the Company or a subsidiary will have good title to the applicable Contracted Vessel, free and clear of all mortgages, pledges, liens, security interests, claims and all defects of the title of record, except for any mortgages, pledges, liens, security interests or claims arising from any financing arrangement which the Company or a subsidiary of the Company may enter to finance the acquisition of the Contracted Vessels and except such encumbrances which would not, singly or in the aggregate, result in a Material Adverse Effect; and each such Contracted Vessel will be in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of the jurisdiction where it is registered as would affect its registry with the ship registry of such jurisdiction.
 
(t)            Each Owned Vessel has been, and the Company will use commercially reasonable efforts to ensure that each Contracted Vessel will be, operated in compliance with the rules, codes of practice, conventions, protocols, guidelines or similar requirements or restrictions imposed, published or promulgated by any governmental authority, classification society or insurer applicable to the respective vessel (collectively, “ Maritime Guidelines ”) and all applicable international, national, state and local conventions, laws, regulations, orders, licenses, permits and other authorizations of any applicable Governmental Authority and other requirements (including, without limitation, all Environmental Laws), except where such failure to be in compliance would not have, singly or in the aggregate, a Material Adverse Effect. The Company and each of its applicable subsidiaries are, and with respect to the Contracted Vessels will be, qualified to own or lease, as the case may be, and operate such vessels under all applicable international, national, state and local conventions, laws, regulations, orders, Governmental Licenses and other requirements (including, without limitation, all Environmental Laws) and Maritime Guidelines, including the laws, regulations and orders of each such vessel’s flag state, except where such failure to be so qualified would not have, singly or in the aggregate, a Material Adverse Effect.
 
(u)           Each Owned Vessel is, and each Contracted Vessel will be, classed by any of Lloyd’s Register of Shipping, American Bureau of Shipping, Det Norske Veritas or a classification society which is a full member of the International Association of Classification
 
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Societies and each Owned Vessel is, and the Company will use commercially reasonable efforts to ensure each Contracted Vessel will be, in class with valid class and trading certificates, without any overdue recommendations.
 
(v)           All material Tax returns required to be filed by the Company and each of the Subsidiaries have been filed and all such returns are true, complete, and correct in all material respects.  All material Taxes that are due or claimed to be due from the Company and each of the Subsidiaries have been paid other than those (A) currently payable without penalty or interest or (B) being contested in good faith and by appropriate proceedings and for which, in the case of both clauses (A) and (B), adequate reserves have been established on the books and records of the Company and each of its Subsidiaries in accordance with GAAP.  There are no material Tax assessments proposed in writing against the Company or any of the Subsidiaries.  To the Company’s knowledge, the accruals and reserves on the books and records of the Company and each of the Subsidiaries in respect of any material Tax liability for any taxable period not finally determined are adequate to meet any assessments of Tax for any such period.  For purposes of this Agreement, the term “ Tax ” and “ Taxes ” shall mean all federal, state, local and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax or penalties applicable thereto.
 
(w)          Except as set forth in the Time of Sale Prospectus and the Prospectus, with respect to non-residents of the Marshall Islands, there are no documentary, stamp or other issuance or transfer taxes or duties or similar fees or charges under the laws of the Republic of the Marshall Islands, or any political subdivision of any thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance, sale and delivery of Shares pursuant hereto.
 
(x)            Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, each of the Company and the Subsidiaries maintains insurance or participates in insurance clubs in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their business.  The Company has no reason to believe that it or any Subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not, singly or in the aggregate, result in a Material Adverse Effect.
 
(y)           The Company has not taken, directly or indirectly, any action that constitutes or is designed to cause or result in, or that would constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the shares of Common Stock.  The Company acknowledges that the Underwriters may engage in passive market making transactions in the Common Stock on the New York Stock Exchange in accordance with Regulation M under the Exchange Act.
 
(z)            There are no business relationships or related-party transactions involving the Company or any Subsidiary or any other person required by the Securities Act or otherwise to be described in the Time of Sale Prospectus or the Prospectus that have not been described as required.
 
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(aa)         The Company has not been advised, and has no reason to believe, that it and each of the Subsidiaries are not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it and each of the Subsidiaries is conducting business, except where failure to be so in compliance would not, singly or in the aggregate, result in a Material Adverse Effect.  Without limiting the generality of the foregoing, neither the Company nor any of the Subsidiaries nor, to the best of the Company’s knowledge, any employee or agent of the Company or any Subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal, state or foreign office in violation of any applicable law.
 
(bb)         The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act” ) and the applicable rules and regulations of the Commission and the New York Stock Exchange relating to the Sarbanes-Oxley Act.
 
(cc)         No labor disturbance by the employees of the Company or any Subsidiary exists or, to the Company’s knowledge, is imminent and the Company is not aware of any existing or imminent labor disturbances by the employees of any of its or any Subsidiary’s principal suppliers, shipyards, manufacturers, customers or contractors, that, in either case (singly or in the aggregate), would result in a Material Adverse Effect.
 
(dd)         Except as described in each of the Time of Sale Prospectus and the Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (i) neither the Company nor any of the Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “ Hazardous Materials ”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “ Environmental Laws ”), (ii) the Company and the Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (iii) there are no pending or, to the Company’s and each Subsidiary’s knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of the Subsidiaries and (iv) there are no events or circumstances that could reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of the Subsidiaries relating to Hazardous Materials or any Environmental Laws.
 
(ee)         Neither the Company nor any of the Subsidiaries has sustained since the date of the last audited financial statements incorporated by reference in the Time of Sale Prospectus any loss or interference with its respective business from the actual or constructive loss of or to any vessel or any other asset that is material to the Company or any of the Subsidiaries, the requisition for title of any vessel, fire, explosion, flood or other calamity, whether or not covered
 
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by insurance, or from any labor dispute or court or governmental action, order or decree that, singly or in the aggregate, resulted in a Material Adverse Effect.
 
(ff)                                 Other than in the ordinary course of business and except as disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company has not sent or received any communication regarding termination of, or intent not to renew, any of the charters or other contracts or agreements filed as an exhibit to the Registration Statement, and no such termination or non-renewal has been threatened by the Company or, to the Company’s knowledge, any other party to any such charter, contract or agreement.
 
(gg)                           Except as otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
 
(hh)                           The Company has been advised of the rules and requirements under the Investment Company Act of 1940, as amended (the “ Investment Company Act ”).  The Company is not, and after giving effect to the offering and sale of the Shares as described in the Time of Sale Prospectus will not be, an “ investment company ” within the meaning of the Investment Company Act.
 
(ii)                                   Since July 21, 2005, neither the Company nor any Subsidiary has extended or maintained credit, arranged for the extension of credit, or renewed any extension of credit, in the form of a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company and/or such Subsidiary except for such extensions of credit as are expressly permitted by Section 13(k) of the Exchange Act and Marshall Islands law.
 
(jj)                                   To the Company’s knowledge, there are no affiliations or associations between any member of FINRA and any of the Company’s officers, directors or 5% or greater security holders, except as set forth in each of the Time of Sale Prospectus and the Prospectus or as disclosed to the Managers.
 
(kk)                             The Company is not a Passive Foreign Investment Company (“ PFIC ”) within the meaning of Section 1296 of the Internal Revenue Code of 1986, as amended, and expects to continue its operations in such a manner that it will not become a PFIC.
 
(ll)                                   Except as described in each of the Time of Sale Prospectus and the Prospectus, none of the Subsidiaries is prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s equity securities, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary.  Except as disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company is not prohibited by contract from declaring and paying dividends and making other distributions on shares of Common Stock.
 
(mm)                       Except as described in each of the Time of Sale Prospectus and the Prospectus, the Company is not prohibited, directly or indirectly, under Marshall Islands law from paying any dividends or other distributions on shares of Common Stock.  Except as described in each of
 
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the Time of Sale Prospectus and the Prospectus, all dividends and other distributions declared and payable on shares of Common Stock may under the current laws and regulations of the Marshall Islands be paid in U.S. dollars and may be freely transferred out of the Marshall Islands, and all such dividends and other distributions will not be subject to withholding or other taxes under the current laws and regulations of the Marshall Islands and are otherwise free and clear of any other tax, withholding or deduction in and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses, registrations, clearances and qualifications of or with any court or governmental agency or body or any stock exchange authorities in the Marshall Islands.
 
(nn)                           The Company is neither owned or controlled by, or under common control with, or acting on behalf of, nor owned or controlled by, or under common control with, or acting on behalf of, any entity that is owned or controlled by, or acting on behalf of, or is doing business with, (i) a terrorist-sponsoring country as designated by the U.S. Department of State, (ii) a country that is the subject of any sanctions program administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”), (iii) a person or entity identified on the Specially Designated Nationals and Blocked Persons List maintained by OFAC (31 C.F.R., Subtitle B, Chapter V, Appendix A) or (iv) any persons or entities the subject of U.S. trade sanctions under the Trading with the Enemy Act, as amended, or the International Emergency Economic Powers Act, as amended.
 
(oo)                           The Company is not, and to the knowledge of the Company, no director, officer, agent, employee or affiliate of the Company is the subject of any sanctions administered by OFAC.
 
(pp)                           The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries with respect to any such laws is pending or, to the Company’s knowledge, threatened.
 
(qq)                           Neither the Company nor any of its subsidiaries or affiliates, nor any of its or their officers, directors, employees or agents, in their capacities as such, nor any other person acting on behalf of the Company, has made any payments, loans, gifts, or promises or offers of payments, loans, gifts or anything of value, directly or indirectly to or for the use or benefit in whole or in part of, any officer or employee of a Governmental Authority (defined below), or any person acting in an official capacity for or on behalf of any Governmental Authority (a “ Public Official ”) or state-owned company or other state-owned enterprise, or to or for the use of any political party or official thereof, or candidate for political office, or to any other person if any such party knew or should have known or had reason to suspect, that any part of such payment, loan, gift or promise or offer, (i) was for purposes of corruptly (A) influencing any act or decision of the recipient in its official capacity, (B) inducing such recipient to (1) do or omit to do any act in violation of its lawful duty or (2) use its influence to affect or influence any act or decision of any Governmental Authority, or (C) securing any improper advantage, in each case, in order to assist the parties in obtaining or retaining business for or with, or directing business
 
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to, any person unless such payment, loan, gift or promise or offer thereof is lawful under written applicable law of the relevant jurisdiction or (ii) would violate the Foreign Corrupt Practices Act, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and similarly applicable laws or requirements (the “ Anti-Corruption Statutes ”).  For purposes of this representation and warranty, the term “ Governmental Authority ” means any public international, multinational or transnational organization or any national, state, municipal or local governmental, judicial, legislative, administrative or other authority, ministry, department, agency, instrumentality, office or organization.  Each of the Company, its subsidiaries and affiliates has conducted its business in compliance with the Anti-Corruption Statutes and has implemented and maintained policies and procedures designed to ensure, and that are expected to continue to ensure, continued compliance therewith.
 
(rr)                                 The Company and each of its subsidiaries is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); and neither the Company nor any of its subsidiaries is or ever has been the sponsor of or otherwise liable under or with respect to any “pension plan” (as defined in ERISA).
 
(ss)                             The Company has not issued any options under the Company’s stock option or other employee benefit plans or arrangements.
 
(tt)                                 The industry, statistical and market-related data included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus are derived from sources that the Company reasonably and in good faith believes to be accurate, reasonable and reliable, and such data agree with the sources from which they were derived.
 
(uu)                           The Company acknowledges in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
 
2.                                        Agreements to Sell and Purchase .  The Company hereby agrees to sell to each of the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company, at a purchase price of $15.28 per share (the “ Purchase Price ”), the number of Firm Shares set forth opposite the name of such Underwriter on Schedule II hereto.
 
On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company further agrees to sell to the several Underwriters the Additional Shares, and the Underwriters shall have the right to purchase from the Company, severally and not jointly, up to 468,750 Additional Shares at a price per share equal to the Purchase Price.  The Managers may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of the Prospectus.  Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased.  Each
 
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purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten business days after the date of such notice.  On each day, if any, that Additional Shares are to be purchased (an “ Option Closing Date ”), each Underwriter agrees, severally and not jointly, to purchase from the Company the number of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
 
3.                                        Public Offering .  The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable.  The Company is further advised by you that the Shares are to be offered to the public upon the terms set forth in the Prospectus.
 
4.                                        Payment and Delivery .  Payment for the Firm Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on July 27, 2010, or at such other time on the same or such other date, not later than August 3, 2010, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “ Closing Date .”
 
Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the Option Closing Date specified in the corresponding notice described in Section 2 or at such other time on the same or on such other date, in any event not later than the tenth business day thereafter, as may be designated in writing by you.
 
The Firm Shares and the Additional Shares shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and the Additional Shares shall be delivered to you on the Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters duly paid by the Company, against payment of the aggregate Purchase Price therefor.
 
5.                                        Conditions to the Underwriters’ Obligations .  The several obligations of the Underwriters are subject to the following conditions:
 
(a)                                   Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
 
(i)                                      there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of the Subsidiaries by any “nationally
 
14 

 
recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
 
(ii)                                   there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and the Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (excluding any amendments or supplements thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
 
(b)                                  The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
 
The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
 
(c)                                   The Underwriters shall have received on the Closing Date the opinion of Reeder & Simpson P.C., outside Marshall Islands counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit A.
 
(d)                                  The Underwriters shall have received on the Closing Date: (i) the opinion of Kramer Levin Naftalis & Frankel LLP, outside United States counsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit B; (ii) a “negative assurance” letter of Kramer Levin Naftalis & Frankel LLP, dated the Closing Date, in the form attached hereto as Exhibit C; and (iii) the opinion of Seward & Kissel LLP, special outside United States counsel for the Company, dated the Closing Date, in the form attached hereto as Exhibit D.
 
(e)                                   The Underwriters shall have received on the Closing Date an opinion of Baker Botts L.L.P., counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
 
The opinions of Reeder & Simpson P.C., Kramer Levin Naftalis & Frankel LLP and Seward & Kissel LLP described in Sections 5(c) and (d) above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
 
(f)                                     The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent registered public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the day immediately preceding the date hereof.
 
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(g)                                  The “lock-up” agreements, each substantially in the form of Exhibit E hereto, between the Managers, on behalf of the Underwriters, and the officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Managers on or before the date hereof, shall be in full force and effect on the Closing Date; provided, however, that the lock-up agreement with Mr. Stephen A. Kaplan shall not cover any shares beneficially owned by OCM Fleet Acquisition LLC that may also be deemed to be beneficially owned by him; provided, further, that the lock-up agreement with Mr. Peter C. Georgiopoulos and Mr. John C. Wobensmith shall be in the form of Exhibit F hereto (with the financial institution referred to in the second paragraph thereof, in the case of Mr. Wobensmith, being changed to “Jefferies & Company, Inc.”).
 
(h)                                  The Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b) under the Securities Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.
 
(i)                                      The New York Stock Exchange shall have approved the Shares to be issued by the Company for listing, subject only to official notice of issuance.
 
The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents (including updated versions of the documents referred to in Sections 5(b) through (f) hereof) as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.
 
6.                                        Covenants of the Company.   (a)  The Company covenants with each Underwriter as follows:
 
(i)                                      To furnish to you, without charge, a signed copy of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to deliver to each of the Underwriters during the period mentioned in Section 6(a)(v) or 6(a)(vi) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
 
(ii)                                   Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
 
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(iii)                                To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
 
(iv)                               Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
 
(v)                                  If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
 
(vi)                               If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
 
(vii)                            To endeavor to qualify the Shares for offer and sale under the securities or blue sky laws of such jurisdictions as you shall reasonably request.
 
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(viii)                         To make generally available to the Company’s security holders and to you an earnings statement (which need not be audited) for the twelve-month period beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
 
(ix)                                 If the third anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold by the Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Shares to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
 
(x)                                    To prepare a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the offering in a form consented to by the Managers, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
 
(xi)                                 To pay the required Commission filing fees relating to the Shares within the time period required by Rule 456(b) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and Rule 457(r) under the Securities Act.
 
(xii)                              To apply the net proceeds received by it from the sale of the Shares in the manner described under the caption “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus.
 
(b)                                  The Company hereby covenants and agrees that, without the prior written consent of each of the Managers, on behalf of the Underwriters, it will not, during the period ending 90 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock other than the notes to be sold in the Convertible Notes offering, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (3) file any registration statement, other than the Time of Sale Prospectus and the Prospectus, with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (4) publicly disclose an intention to do any of the foregoing.
 
The restrictions contained in the immediately preceding paragraph shall not apply in respect of: (a) the Shares to be sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing or which
 
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is described in the Time of Sale Prospectus  (including without limitation the notes to be sold in the Convertible Notes Offering), (c) the grant by the Company of options or the issuance of shares of restricted stock or restricted stock units by the Company to employees, officers, directors, advisors or consultants pursuant to any employee benefit plan referred to in the Time of Sale Prospectus and (d) the filing of any registration statement on Form S-8 in respect of any employee benefit plan referred to in the Time of Sale Prospectus.
 
The lock-up period described in the proceeding paragraph will be extended if (i) during the last 17 days of the lock-up period the Company issues a release about earnings or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the lock-up period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the lock-up period, in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issuance of the release or the occurrence of the material news or material event.  The Company shall promptly notify each of the Managers of any earnings release, news or event that may give rise to an extension of the initial lock-up period.
 
7.                                        Covenants of the Underwriters .  Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
 
8.                                        Expenses .  Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Shares, all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any blue sky or legal investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 6(a)(vii) hereof, including filing fees and the reasonable fees and disbursements of counsel to the Underwriters (not to exceed $5,000) in connection with such qualification and in connection with the blue sky or legal investment memorandum, (iv) any filing fees and the reasonable fees and disbursements of counsel to the Underwriters (not to exceed $5,000) incurred in connection with any review and qualification of the offering of the Shares by FINRA, (v) the costs and expenses incident to listing the Shares on the New York Stock Exchange, (vi)  the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in
 
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connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation of or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section 8. It is understood, however, that except as provided in this Section 8, Section 9 entitled “Indemnity and Contribution” and the last paragraph of Section 11 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, travel and lodging expenses of the representatives and officers of the Underwriters, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.  Notwithstanding the foregoing, the Underwriters will reimburse the Company for certain costs and expenses incurred by the Company in connection with the transactions contemplated by this Agreement in an amount equal to 0.5% of the aggregate gross proceeds from the sale of the Shares.  Such reimbursement shall be made by wire transfer of immediately available funds by the Underwriters to such account or accounts designated by the Company or such other method as agreed to by the Managers and the Company.
 
9.                                        Indemnity and Contribution .   (a) The Company agrees to indemnify and hold harmless each Underwriter, its directors and officers and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus, in the light of the circumstances under which any such statements were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, which information is specified in Section 9(g) below.
 
(b)                                  Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other
 
20 

 
expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus (as amended or supplemented if the Company shall have furnished any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus, in the light of the circumstances under which any such statements were made) not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendments or supplements thereto, which information is specified in Section 9(g) below.
 
(c)           In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any other persons entitled to indemnification hereunder in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding, but the omission so to notify the indemnifying party shall not relieve it from liability that it may have to any indemnified party otherwise. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all the indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by Deutsche Bank Securities Inc.  In the case of any such separate firm for the Company and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered
 
21 

 
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
 
(d)           To the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(d)(i) above but also the relative fault of the indemnifying party or parties, on the one hand, and of the indemnified party or parties, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Underwriters in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Shares set forth in the Prospectus.  The relative fault of the Company and the Underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
 
(e)           The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the aggregate number of Shares underwritten by such Underwriter and distributed to the public were offered to the public exceeds the amount of any damages that
 
22 

 
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
 
(f)            The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
 
(g)           The Underwriters confirm and the Company acknowledges and agrees that the following information included in the most recent preliminary prospectus and the Prospectus constitutes the only information relating to any of the Underwriters furnished in writing to the Company by or on behalf of any of the Underwriters specifically for inclusion in the Registration Statement, any preliminary prospectus relating to the offering of the Shares, the Time of Sale Prospectus, any issuer free writing prospectus relating to the offering of the Shares or the Prospectus or in any amendment or supplement to any of the foregoing: (i) the fifth paragraph on the cover page regarding delivery of shares by the Underwriters and (ii) the fourth paragraph relating to concession and reallowance figures and the 14th, 15th, 16th, 17th, 18th and 19th paragraphs relating to stabilization by the Underwriters under the caption “Underwriting.”
 
10.           Termination .  The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and that, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
 
11.           Effectiveness; Defaulting Underwriters .  This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
 
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares that such defaulting
 
23 

 
Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Shares that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 11 by an amount in excess of one-tenth of such number of Shares without the written consent of such Underwriter.  If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company.  In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected.  If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default.  Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
 
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
 
12.           Entire Agreement .  (a)  This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company and the Underwriters with respect to the preparation of the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
 
(b)           The Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded
 
24 

 
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company.  The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
 
13.           Counterparts .  This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
 
14.           Applicable Law .  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any rules of conflict of laws thereof that would result in the application of the laws of any other jurisdiction.
 
15.           Headings .  The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
 
16.           Notices .  All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to you in care of Deutsche Bank Securities Inc., 60 Wall Street, 4th Floor, New York, New York 10005, Attention: Equity Capital Markets—Syndicate Desk (with a copy to Deutsche Bank Securities, Inc., 60 Wall Street, New York, New York 10005, Attention: General Counsel); and if to the Company shall be delivered, mailed or sent to Genco Shipping & Trading Limited, 299 Park Avenue, 20th Floor, New York, New York 10171, Attention:  John C. Wobensmith.
 
[ Signature Pages Follow ]
 
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 	Very truly yours,	
 	 	
 	GENCO SHIPPING & TRADING LIMITED	

 	By:	/s/ John C. Wobensmith	
 	 	Name:	John C. Wobensmith	
 	 	Title:	Chief Financial Officer, Secretary and	
 	 	 	Treasurer	

Signature Page to Underwriting Agreement

 

Accepted by the Managers as of the date hereof, acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto.	 	

By:	DEUTSCHE BANK SECURITIES INC.	 	

 	By:	/s/ Craig Fuehrer	 	
 	 	Name: Craig Fuehrer	 	
 	 	Title: Managing Director	 	

 	By:	/s/ Isobel van Daesdonk	 	
 	 	Name: Isobel van Daesdonk	 	
 	 	Title: Director	 	

By:	BNP PARIBAS SECURITIES CORP.	 	

 	By:	/s/ Pierre Lapomme	 	
 	 	Name: Pierre Lapomme	 	
 	 	Title: Managing Director	 	

 	By:	/s/ Michael Murphy	 	
 	 	Name: Michael Murphy	 	
 	 	Title: Director	 	

By:	CREDIT SUISSE SECURITIES (USA) LLC	 	

 	By:	/s/ David Herman	 	
 	 	Name: David Herman	 	
 	 	Title: Director	 	

 	By:	/s/ Joe Reece	 	
 	 	Name: Joe Reece	 	
 	 	Title: Managing Director	 	
 
Signature Page to Underwriting Agreement

 
SCHEDULE I

Managers:	 	Deutsche Bank Securities Inc.
BNP Paribas Securities Corp.
Credit Suisse Securities (USA) LLC	
 	 	 	
Registration Statement File No.:	 	Registration Statement on Form S-3 (File No. 333-155758)	
 	 	 	
Time of Sale Prospectus:	 	·                   Prospectus dated February 27, 2009 relating to the Shelf Securities	
 	 	·                   The preliminary prospectus supplement dated July 21, 2010 relating to the Shares	
 	 	·                   Term Sheet dated July 21, 2010	
 	 	 	
Securities to be purchased:	 	3,125,000 shares of Common Stock	
 	 	 	
Purchase Price:	 	$15.28 per share	
 	 	 	
Closing Date and Time:	 	July 27, 2010, 10:00 a.m., New York City time	
 	 	 	
Closing Location:	 	Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036	

 
SCHEDULE II

Underwriters	 	Number of Firm Shares
To Be Purchased	 	
Deutsche Bank Securities Inc.	 	1,250,000	 	
BNP Paribas Securities Corp.	 	625,000	 	
Credit Suisse Securities (USA) LLC	 	625,000	 	
Credit Agricole Securities (USA) Inc.	 	406,250	 	
DVB Capital Markets LLC	 	156,250	 	
Knight Capital Markets LLC	 	62,500	 	
Total:	 	3,125,000	 	

 
SCHEDULE III
 
Company Subsidiaries

Subsidiary	 	Jurisdiction of Organization	
Genco Beauty Limited	 	Marshall Islands	
Genco Knight Limited	 	Marshall Islands	
Genco Leader Limited	 	Marshall Islands	
Genco Vigour Limited	 	Marshall Islands	
Genco Success Limited	 	Marshall Islands	
Genco Carrier Limited	 	Marshall Islands	
Genco Prosperity Limited	 	Marshall Islands	
Genco Wisdom Limited	 	Marshall Islands	
Genco Marine Limited	 	Marshall Islands	
Genco Explorer Limited	 	Marshall Islands	
Genco Pioneer Limited	 	Marshall Islands	
Genco Progress Limited	 	Marshall Islands	
Genco Reliance Limited	 	Marshall Islands	
Genco Sugar Limited	 	Marshall Islands	
Genco Muse Limited	 	Marshall Islands	
Genco Acheron Limited	 	Marshall Islands	
Genco Surprise Limited	 	Marshall Islands	
Genco Augustus Limited	 	Marshall Islands	
Genco Tiberius Limited	 	Marshall Islands	
Genco Titus Limited	 	Marshall Islands	
Genco Constantine Limited	 	Marshall Islands	
Genco London Limited	 	Marshall Islands	
Genco Hadrian Limited	 	Marshall Islands	
Genco Commodus Limited	 	Marshall Islands	
Genco Maximus Limited	 	Marshall Islands	
Genco Claudius Limited	 	Marshall Islands	
Genco Predator Limited	 	Marshall Islands	
 
1 

 

Subsidiary	 	Jurisdiction of Organization	
Genco Warrior Limited	 	Marshall Islands	
Genco Hunter Limited	 	Marshall Islands	
Genco Challenger Limited	 	Marshall Islands	
Genco Charger Limited	 	Marshall Islands	
Genco Champion Limited	 	Marshall Islands	
Genco Investments LLC	 	Marshall Islands	
Genco Raptor LLC	 	Marshall Islands	
Genco Cavalier LLC	 	Marshall Islands	
Genco Thunder LLC	 	Marshall Islands	
Genco Aquitaine Limited	 	Marshall Islands	
Genco Ardennes Limited	 	Marshall Islands	
Genco Auvergne Limited	 	Marshall Islands	
Genco Bourgogne Limited	 	Marshall Islands	
Genco Brittany Limited	 	Marshall Islands	
Genco Languedoc Limited	 	Marshall Islands	
Genco Loire Limited	 	Marshall Islands	
Genco Lorraine Limited	 	Marshall Islands	
Genco Normandy Limited	 	Marshall Islands	
Genco Picardy Limited	 	Marshall Islands	
Genco Provence Limited	 	Marshall Islands	
Genco Pyrenees Limited	 	Marshall Islands	
Genco Rhone Limited	 	Marshall Islands	
Genco Bay Limited	 	Marshall Islands	
Genco Ocean Limited	 	Marshall Islands	
Genco Avra Limited	 	Marshall Islands	
Genco Mare Limited	 	Marshall Islands	
Genco Spirit Limited	 	Marshall Islands	
Genco Diocletian Limited	 	Marshall Islands	
Genco Valerian Limited	 	Marshall Islands	
Genco Trajan Limited	 	Marshall Islands	
 
2 

 

Subsidiary	 	Jurisdiction of Organization	
Genco Ship Management LLC	 	Delaware	
Genco Management (USA) LLC	 	Delaware	
Baltic Trading Limited	 	Marshall Islands	
Baltic Bear Limited	 	Marshall Islands	
Baltic Breeze Limited	 	Marshall Islands	
Baltic Cougar Limited	 	Marshall Islands	
Baltic Cove Limited	 	Marshall Islands	
Baltic Jaguar Limited	 	Marshall Islands	
Baltic Leopard Limited	 	Marshall Islands	
Baltic Panther Limited	 	Marshall Islands	
Baltic Wind Limited	 	Marshall Islands	
Baltic Wolf Limited	 	Marshall Islands	
 
3 

 
SCHEDULE IV
 
Ownership of Vessels

Vessel	 	Subsidiary	
Genco Beauty	 	Genco Beauty Limited
(Marshall Islands)	
Genco Knight	 	Genco Knight Limited
(Marshall Islands)	
Genco Leader	 	Genco Leader Limited
(Marshall Islands)	
Genco Vigour	 	Genco Vigour Limited
(Marshall Islands)	
Genco Success	 	Genco Success Limited
(Marshall Islands)	
Genco Carrier	 	Genco Carrier Limited
(Marshall Islands)	
Genco Prosperity	 	Genco Prosperity Limited
(Marshall Islands)	
Genco Wisdom	 	Genco Wisdom Limited
(Marshall Islands)	
Genco Marine	 	Genco Marine Limited
(Marshall Islands)	
Genco Explorer	 	Genco Explorer Limited
(Marshall Islands)	
Genco Pioneer	 	Genco Pioneer Limited
(Marshall Islands)	
Genco Progress	 	Genco Progress Limited
(Marshall Islands)	
Genco Reliance	 	Genco Reliance Limited
(Marshall Islands)	
Genco Sugar	 	Genco Sugar Limited
(Marshall Islands)	
Genco Muse	 	Genco Muse Limited
(Marshall Islands)	
Genco Acheron	 	Genco Acheron Limited
(Marshall Islands)	
 
1 

 

Vessel	 	Subsidiary	
Genco Surprise	 	Genco Surprise Limited
(Marshall Islands)	
Genco Augustus	 	Genco Augustus Limited
(Marshall Islands)	
Genco Tiberius	 	Genco Tiberius Limited
(Marshall Islands)	
Genco London	 	Genco London Limited
 (Marshall Islands)	
Genco Titus	 	Genco Titus Limited
 (Marshall Islands)	
Genco Challenger	 	Genco Challenger Limited
 (Marshall Islands)	
Genco Charger	 	Genco Charger Limited
 (Marshall Islands)	
Genco Warrior	 	Genco Warrior Limited
 (Marshall Islands)	
Genco Predator	 	Genco Predator Limited
 (Marshall Islands)	
Genco Hunter	 	Genco Hunter Limited
 (Marshall Islands)	
Genco Champion	 	Genco Champion Limited
 (Marshall Islands)	
Genco Constantine	 	Genco Constantine Limited
 (Marshall Islands)	
Genco Hadrian	 	Genco Hadrian Limited
 (Marshall Islands)	
Genco Commodus	 	Genco Commodus Limited
 (Marshall Islands)	
Genco Maximus	 	Genco Maximus Limited
 (Marshall Islands)	
Genco Claudius	 	Genco Claudius Limited
 (Marshall Islands)	
Genco Raptor	 	Genco Raptor LLC
(Marshall Islands)	
Genco Thunder	 	Genco Thunder LLC	
 
2 

 

Vessel	 	Subsidiary	
 	 	(Marshall Islands)	
Genco Cavalier	 	Genco Cavalier LLC
(Marshall Islands)	
Baltic Bear	 	Baltic Bear Limited
(Marshall Islands)	
Baltic Cougar	 	Baltic Cougar Limited
(Marshall Islands)	
Baltic Jaguar	 	Baltic Jaguar Limited
(Marshall Islands)	
Baltic Leopard	 	Baltic Leopard Limited
(Marshall Islands)	
Baltic Panther	 	Baltic Panther Limited
(Marshall Islands)	
 
3 

Exhibit 4.1
 
GENCO SHIPPING & TRADING LIMITED

 
INDENTURE
 
DATED AS OF JULY 27, 2010

 
THE BANK OF NEW YORK MELLON,
 
as 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	15	
 	 	 	
ARTICLE 3. REDEMPTION AND PREPAYMENT	15	
Section 3.01	Notice to Trustee	15	
Section 3.02	Selection of Notes to Be Redeemed	16	
Section 3.03	Notice of Redemption	16	
Section 3.04	Effect of Notice of Redemption	17	
Section 3.05	Deposit of Redemption Price	17	
Section 3.06	Notes Redeemed in Part	17	
 	 	 	
ARTICLE 4. COVENANTS	18	
Section 4.01	Payment of Principal and Interest	18	
Section 4.02	Maintenance of Office or Agency	18	
Section 4.03	Reports	18	
Section 4.04	Compliance Certificate	19	
Section 4.05	Taxes	19	
Section 4.06	Stay, Extension and Usury Laws	20	
Section 4.07	Corporate Existence	20	
 	 	 	
ARTICLE 5. SUCCESSORS	20	
Section 5.01	Merger, Consolidation or Sale of Assets	20	
 
i 

 

Section 5.02	Successor Person Substituted	21	
 	 	 	
ARTICLE 6. DEFAULTS AND REMEDIES	21	
Section 6.01	Events of Default	21	
Section 6.02	Acceleration	23	
Section 6.03	Other Remedies	23	
Section 6.04	Waiver of Past Defaults	23	
Section 6.05	Control by Majority	24	
Section 6.06	Limitation on Suits	24	
Section 6.07	Rights of Holders of Notes to Receive Payment	24	
Section 6.08	Collection Suit by Trustee	25	
Section 6.09	Trustee May File Proofs of Claim	25	
Section 6.10	Priorities	25	
Section 6.11	Undertaking for Costs	26	
 	 	 	
ARTICLE 7. TRUSTEE	26	
Section 7.01	Duties of Trustee	26	
Section 7.02	Rights of Trustee	27	
Section 7.03	Individual Rights of Trustee	29	
Section 7.04	Trustee’s Disclaimer	29	
Section 7.05	Notice of Defaults	29	
Section 7.06	Reports by Trustee to Holders of the Notes	29	
Section 7.07	Compensation and Indemnity	30	
Section 7.08	Replacement of Trustee	31	
Section 7.09	Successor Trustee by Merger, Etc.	32	
Section 7.10	Eligibility; Disqualification	32	
Section 7.11	Preferential Collection of Claims Against Company	32	
Section 7.12	Trustee’s Application for Instructions from the Company	32	
 	 	 	
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE	33	
Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance	33	
Section 8.02	Legal Defeasance and Discharge	33	
Section 8.03	Covenant Defeasance	33	
Section 8.04	Conditions to Legal or Covenant Defeasance	34	
Section 8.05	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions	35	
Section 8.06	Repayment to Company	35	
Section 8.07	Reinstatement	36	
 	 	 	
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER	36	
Section 9.01	Without Consent of Holders of Notes	36	
Section 9.02	With Consent of Holders of Notes	37	
Section 9.03	Compliance with Trust Indenture Act	38	
Section 9.04	Revocation and Effect of Consents	38	
Section 9.05	Notation on or Exchange of Notes	38	
Section 9.06	Trustee Protected	39	
Section 9.07	Notice of Supplemental Indenture	39	
 
ii 

 

ARTICLE 10. SATISFACTION AND DISCHARGE	39	
Section 10.01	Satisfaction and Discharge	39	
Section 10.02	Application of Trust Money	40	
 	 	 	
ARTICLE 11. MISCELLANEOUS	40	
Section 11.01	Trust Indenture Act Controls	40	
Section 11.02	Notices	40	
Section 11.03	Communication by Holders of Notes with Other Holders of Notes	41	
Section 11.04	Certificate and Opinion as to Conditions Precedent	42	
Section 11.05	Statements Required in Certificate	42	
Section 11.06	Rules by Trustee and Agents	42	
Section 11.07	Calculation of Foreign Currency Amounts	42	
Section 11.08	Legal Holidays	43	
Section 11.09	No Personal Liability of Directors, Officers, Employees and Stockholders	43	
Section 11.10	Governing Law	43	
Section 11.11	No Adverse Interpretation of Other Agreements	43	
Section 11.12	Successors	43	
Section 11.13	Severability	43	
Section 11.14	Counterpart Originals	44	
Section 11.15	Table of Contents, Headings, Etc.	44	
 	 	 	
ARTICLE 12. SINKING FUNDS	44	
Section 12.01	Applicability of Article	44	
Section 12.02	Satisfaction of Sinking Fund Payments with Notes	44	
Section 12.03	Redemption of Notes for Sinking Fund	45	
 
iii 

 
INDENTURE dated as of July 27, 2010 between GENCO SHIPPING & TRADING LIMITED, a Marshall Islands corporation (the “ Company ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, 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 duly 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 capital 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 ” “ means the office of the Trustee at which at any particular time its corporate trust business in Pittsburgh, Pennsylvania shall be principally administered, which office as of the date of this instrument is located at 525 William Penn Place, 38 th  Floor, Pittsburgh, PA 15259, except that with respect to presentation of Notes for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee at which at any particular time its corporate agency business shall be conducted, which office at the date of this instrument is located at 101 Barclay Street, New York, New York 10286; Attention: Corporate Trust Division - Corporate Finance Unit, or, in the case of any of such offices or agency, such other address as the Trustee may designate from time to time by notice to the Holders and 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.
 
2 

 
“ 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 Company, 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.
 
“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.
 
“ 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
 
3 

 
(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.
 
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 by Section 2.02.
 
“ 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 required or authorized by law, regulation or executive order to remain closed.
 
4 

 
“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement 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 by an Officer of the Company that meets the requirements of Section 11.05 hereof and delivered to the Trustee.
 
“ Opinion of Counsel ” means a written opinion from legal counsel, who may be an employee of or counsel to the Company, any Subsidiary of the Company and who is acceptable to the Trustee, that meets the requirements of Section 11.05 hereof.
 
“ 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 ” means, when used with respect to the Trustee, any officer assigned to the Corporate Trust Division — Corporate Finance Unit (or any successor division or unit of the Trustee or the corporate trust department of any successor Trustee) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration of this Indenture, and for purposes of Section 7.1(c)(2) and the second sentence of Section 7.5 shall also include any officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
 
“ 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 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:
 
5 

 
(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.
 
The following TIA terms used in this Indenture have the following meanings:
 
“ Commission ” means the SEC;
 
“ indenture securities ” means the Notes;
 
6 

 
“ 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)                                   the words “hereof,” “herein,” “hereunder” and similar words refer to this Indenture as a whole and not to any particular provisions of this Indenture; and any subsection, Section, Article and Exhibit references are to this Indenture unless otherwise specified;
 
(6)                                   “including” means including without limitation;
 
(7)                                   provisions apply to successive events and transactions; and
 
(8)                                   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,
 
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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 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( w )) 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
 
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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;
 
(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;
 
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(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
 
(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; provided, however, that there shall be only one registrar for each Series of Notes. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any
 
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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 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
 
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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 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,
 
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waiver or consent, only Notes of a Series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
 
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 dispose of canceled Notes in accordance with the Trustee’s standard practices (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
 
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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, 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.
 
None of the Trustee, the Paying Agent or the Registrar shall have any responsibility or obligation to any beneficial owner in a Global Note, an agent member or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any agent member,
 
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with respect to any ownership interest in the Securities or with respect to the delivery to any agent member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Securities.  All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities and this Indenture shall be given or made only to or upon the order of the registered holders (which shall be the Depositary or its nominee in the case of the Global Note).  The rights of beneficial owners in the Global Note shall be exercised only through the Depositary subject to its applicable procedures.  The Trustee, the Paying Agent and the Registrar shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.  The Trustee, the Paying Agent and the Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered holder of any Global Note for all purposes of this Indenture relating to such Global Note (including the payment of principal, premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Note) as the sole holder of such Global Note and shall have no obligations to the beneficial owners thereof.  None of the Trustee, the Paying Agent or the Registrar shall have any responsibility or liability for any acts or omissions of the Depositary with respect to such Global Note, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such Global Note, for any transactions between the Depositary and any agent member or between or among the Depositary, any such agent member and/or any holder or owner of a beneficial interest in such Global Note, or for any transfers of beneficial interests in any such Global Note.
 
Section 2.15                                 CUSIP Number.
 
The Company in issuing the Notes may use “CUSIP”, “ISIN” or other similar numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”, “ISIN” or other similar numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or the omission of such numbers. The Company shall promptly notify the Trustee of any change in the “CUSIP”, “ISIN” or other similar 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).
 
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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 are in integral multiples of authorized denominations in excess of the minimum authorized denomination.
 
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:
 
(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”, “ISIN” or other similar number, if any;
 
(7)                                   that the redemption is for a sinking fund, if such is the case; and
 
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(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 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.
 
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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.
 
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.
 
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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 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 shall deliver to the Trustee with respect to such Series, within 12 0 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 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.
 
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Section 4.06                                 Stay, Extension and Usury Laws.
 
The Company covenants (to the extent that it may lawfully do so) that it shall not, at any time, insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee 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 Person, 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:
 
(i)                                      either:  (a) the Company is the surviving Person; 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 or territory 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, executed and delivered to the Trustee;
 
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(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)  compl ies 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 its 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 thereof 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 Person Substituted.
 
Upon any consolidation or merger, or any sale, assignment, transfer, 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, 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, assignment, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person 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.
 
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
 
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(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
 
(8)                                   a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
 
(a)                                   is 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.
 
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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 such 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.
 
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
 
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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 give n 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
 
(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.
 
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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 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.
 
Any money collected and any money or other property distributable in respect of the Company’s obligations under this Indenture after the occurrence of an Event of Default shall be applied in the following order:
 
First :  to the Trustee (including any predecessor 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;
 
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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 their 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 Trustee undertakes to perform such duties and only such duties as are specifically 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 or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
 
(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:
 
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(i)            this paragraph does not limit the effect of paragraphs (b) or (e) 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, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to any Series of Notes.
 
(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 otherwise 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 and shall be fully protected in acting or refraining from acting 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 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 attorney or agent appointed with due care.
 
(d)           The Trustee shall not be liable for any action it takes, suffers, or omits to take in good faith that it believes to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
 
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(e)           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 security or indemnity reasonably satisfactory to the Trustee 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 or be charged with knowledge of any Default or Event of Default unless written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer of 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 or other 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 specified as so authorized in any such certificate previously delivered and not superseded.
 
(k)           The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document.
 
(l)            Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action.
 
(m)          The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action.
 
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Section 7.03           Individual Rights of Trustee.
 
The Trustee, Agent or any other agent of the Company, 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, Agent or such other agent. However, in the event the Trustee acquires any 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 (i) shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, (ii) 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, (iii) shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and (iv) 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.  Subject to Section 7.01(a) hereof, the Trustee shall not be responsible to make any calculation with respect to any matter under this Indenture and shall have no duty to monitor or investigate the Issuers’ compliance with or the breach of, or cause to be performed or observed, any representation, warranty or covenant made in this Indenture.
 
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 or in the payment of any sinking fund installment with respect to 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.
 
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Section 7.07           Compensation and Indemnity.
 
The Company shall pay to the Trustee from time to time such 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 the Trustee in addition to the compensation for its services , except to the extent any such expense, advance or disbursement may be attributable to the Trustee’s negligence or willful misconduct . Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel and of all Persons not regularly in its employ.
 
The Company shall indemnify the Trustee or any predecessor Trustee and their officers, agents, directors and employees for, and to hold them harmless 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 the trust or trusts 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 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 the Notes, the termination for any reason of this Indenture and the resignation or removal of the Trustee.
 
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 the Notes, the termination for any reason of this Indenture and the resignation or removal of the Trustee.
 
In addition to and without prejudice to its other rights hereunder, 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 (including the fees and expenses of its agents and counsel) and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
 
“Trustee” for purposes of this Section shall include any predecessor Trustee; provided, however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
 
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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;
 
(b)           the 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, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the Trustee under this Indenture. The Company 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
 
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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.
 
Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.
 
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 or territory 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 $50 million as set forth in its most recent published annual report of condition.
 
This Indenture shall always have a Trustee who satisfies the requirements of TIA 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.
 
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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 shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Notes 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 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 will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its 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,
 
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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 Dollars, non-callable Government Securities, or a combination of cash in 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 and discharge 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;
 
(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)
 
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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 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
 
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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 Dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the applicable Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however , that, if the Company makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
 
ARTICLE 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 ;
 
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(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 Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Sections 7.02 and 9.06 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.
 
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.
 
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;
 
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(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;
 
(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.
 
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 Board Resolution 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 Sections 7.02 and 9.06 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.
 
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
 
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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 Officer’s Certificate and an Opinion of Counsel each 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.
 
Section 9.07           Notice of Supplemental Indenture.
 
After any supplemental indenture or waiver under this Article becomes effective, the Company shall mail to the Holders of Notes a notice briefly describing such supplemental indenture or waiver. Any failure by the Company to mail such notice to all Holders of Notes, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
 
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:
 
(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 Dollars, non-callable Government Securities, or a combination of cash in 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
 
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a breach or violation of, or constitute a default under, any other instrument to which the Company is a party or by which the Company is bound;
 
(3)                                   the Company has paid or caused to be paid all sums payable by it under this Indenture; and
 
(4)                                   the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the 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 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 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.
 
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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:
 
The Bank of New York Mellon
c/o The Bank of New York Mellon Trust Company, N.A.
525 William Penn Place 38th Floor
Pittsburgh PA 15259
Attention:  Corporate Trust Division — Corporate Finance Unit
Facsimile:  (412) 234-1209
 
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 or the Trustee) 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 given to the Trustee shall be effective only upon actual receipt by the Trustee at the Corporate Trust Office of the Trustee
 
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.
 
If a notice or communication is mailed to the Holders or the Company 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
 
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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.
 
Section 11.07         Calculation of Foreign Currency Amounts.
 
The calculation of the 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.
 
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Section 11.08         Legal Holidays.
 
If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.  If a regular record date is a Legal Holiday, the record date shall not be affected.
 
Section 11.09         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 11.10         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.
 
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
 
Section 11.11         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 11.12         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 11.13         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.
 
43 

 
Section 11.14         Counterpart Originals.
 
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
 
Section 11.15         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
 
44 

 
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 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.
 
[ Signatures on following page ]
 
45 

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

 	GENCO SHIPPING & TRADING LIMITED	

 	By:	/s/ John C. Wobensmith	
 	 	
 	Name: John C. Wobensmith	
 	 	
 	Title: Chief Financial Officer	

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	/s/ Justin Huff	
 	 	
 	Name: Justin Huff	
 	 	
 	Title: Senior Associate	
 
46 

Exhibit 4.2
 
GENCO SHIPPING & TRADING LIMITED

 
FIRST SUPPLEMENTAL INDENTURE
 
DATED AS OF JULY 27, 2010
 
to the Indenture dated as of July 27, 2010

Creating the Series of Notes Designated
 
5.00% Convertible Senior Notes due August 15, 2015

 
THE BANK OF NEW YORK MELLON,
 
as Trustee

 

 
ARTICLE 1
DEFINITIONS

Section 1.01	 	Definitions	 	1	
 	 	 	 	 	
Section 1.02	 	Other Definitions	 	6	
 	 	 	 	 	
ARTICLE 2	
THE SECURITIES	
 	 	 	 	 	
Section 2.01	 	Issue of Notes	 	6	
 	 	 	 	 	
Section 2.02	 	Form and Dating	 	7	
 	 	 	 	 	
Section 2.03	 	Execution and Authorization; Add On Securities	 	7	
 	 	 	 	 	
Section 2.04	 	Registrar, Paying Agent and Conversion Agent	 	7	
 	 	 	 	 	
Section 2.05	 	Transfer and Exchange	 	7	
 	 	 	 	 	
Section 2.06	 	Outstanding Securities	 	8	
 	 	 	 	 	
Section 2.07	 	Cancellation	 	8	
 	 	 	 	 	
ARTICLE 3	
REDEMPTION	
 	 	 	 	 	
Section 3.01	 	Not Subject to Redemption	 	9	
 	 	 	 	 	
ARTICLE 4	
PURCHASE OF SECURITIES UPON A FUNDAMENTAL CHANGE	
 	 	 	 	 	
Section 4.01	 	Purchase of Securities at Option of the Holder Upon Fundamental Change	 	9	
 	 	 	 	 	
Section 4.02	 	Effect of Fundamental Change Purchase Notice	 	13	
 	 	 	 	 	
Section 4.03	 	Deposit of Fundamental Change Purchase Price	 	13	
 	 	 	 	 	
Section 4.04	 	Securities Purchased in Part	 	14	
 	 	 	 	 	
Section 4.05	 	Compliance with Securities Laws Upon Purchase of Securities	 	14	
 	 	 	 	 	
ARTICLE 5	
PAYMENT OF INTEREST AND MAKE WHOLE ADJUSTMENT EVENTS	
 	 	 	 	 	
Section 5.01	 	Interest and Principal Payments	 	14	
 	 	 	 	 	
Section 5.02	 	Increased Conversion Rate Applicable to Certain Securities Surrendered in Connection with Make Whole Adjustment Events	 	15	
 	 	 	 	 	
Section 5.03	 	Adjustments Relating to Make Whole Adjustment Event	 	17	
 	 	 	 	 	
ARTICLE 6	
CONVERSION	
 	 	 	 	 	
Section 6.01	 	Conversion Privilege	 	17	
 	 	 	 	 	
Section 6.02	 	Conversion Procedure	 	20	
 	 	 	 	 	
Section 6.03	 	Fractional Shares	 	21	
 
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Section 6.04	 	Taxes on Conversion	 	21	
 	 	 	 	 	
Section 6.05	 	Settlement Upon Conversion	 	22	
 	 	 	 	 	
Section 6.06	 	Adjustment of Conversion Price	 	23	
 	 	 	 	 	
Section 6.07	 	No Adjustment	 	32	
 	 	 	 	 	
Section 6.08	 	Adjustment for Tax Purposes	 	33	
 	 	 	 	 	
Section 6.09	 	Notice of Conversion and Notice of Adjustment	 	33	
 	 	 	 	 	
Section 6.10	 	Notice of Certain Transactions	 	34	
 	 	 	 	 	
Section 6.11	 	Stockholder Rights Plans	 	34	
 	 	 	 	 	
Section 6.12	 	Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege	 	34	
 	 	 	 	 	
Section 6.13	 	Trustee’s Disclaimer	 	36	
 	 	 	 	 	
Section 6.14	 	Voluntary Reduction	 	37	
 	 	 	 	 	
Section 6.15	 	Calculations in Respect of the Securities	 	37	
 	 	 	 	 	
ARTICLE 7	
COVENANTS	
 	 	 	 	 	
Section 7.01	 	Reports	 	37	
 	 	 	 	 	
Section 7.02	 	Compliance Certificate	 	38	
 	 	 	 	 	
Section 7.03	 	Payment of Additional Tax Amounts	 	38	
 	 	 	 	 	
ARTICLE 8	
CONSOLIDATION, MERGER, SALE OR CONVEYANCE	
 	 	 	 	 	
Section 8.01	 	Issuer May Consolidate, etc., on Certain Terms	 	40	
 	 	 	 	 	
Section 8.02	 	Successor Person Substituted	 	40	
 	 	 	 	 	
ARTICLE 9	
DEFAULT AND REMEDIES	
 	 	 	 	 	
Section 9.01	 	Events of Default	 	41	
 	 	 	 	 	
Section 9.02	 	Additional Interest Sole Remedy for Certain Events of Default	 	42	
 	 	 	 	 	
Section 9.03	 	Waiver of Default and Events of Default	 	43	
 	 	 	 	 	
Section 9.04	 	Limitations on Suits	 	43	
 	 	 	 	 	
Section 9.05	 	Unconditional Right of Holders to Receive Conversion Obligation	 	44	
 	 	 	 	 	
Section 9.06	 	Duties of Trustee	 	44	
 	 	 	 	 	
ARTICLE 10	
SATISFACTION AND DISCHARGE	
 	 	 	 	 	
Section 10.01	 	Satisfaction and Discharge	 	44	
 
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ARTICLE 11	
MISCELLANEOUS PROVISIONS	
 	 	 	 	 	
Section 11.01	 	Scope of Supplemental Indenture	 	45	
 	 	 	 	 	
Section 11.02	 	Adoption, Ratification and Confirmation	 	46	
 	 	 	 	 	
Section 11.03	 	New York Law to Govern	 	46	
 	 	 	 	 	
Section 11.04	 	Notices	 	46	
 	 	 	 	 	
Section 11.05	 	Counterparts	 	46	
 	 	 	 	 	
Section 11.06	 	Trustee’s Disclaimer	 	46	
 	 	 	 	 	
ARTICLE 12	
SUPPLEMENTAL INDENTURES	
 	 	 	 	 	
Section 12.01	 	Without Consent of Holders	 	46	
 	 	 	 	 	
Section 12.02	 	With Consent of Holders	 	47	
 	 	 	 	 	
ARTICLE 13	
SINKING FUND	
 	 	 	 	 	
Section 13.01	 	No Sinking Fund	 	47	
 	 	 	 	 	
EXHIBITS	 	 	 	 	
 	 	 	 	 	
Exhibit A:	 	Form of Security	 	A-1	
 
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FIRST SUPPLEMENTAL INDENTURE, dated as of July 27, 2010, between GENCO SHIPPING & TRADING LIMITED, a Marshall Islands corporation (the “ Company ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee (the “ Trustee ”), Paying Agent, Registrar and Conversion Agent.
 
W I T N E S S E T H:
 
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of July 27, 2010 (the “ Base Indenture ”), providing for the issuance from time to time of one or more Series of Notes;
 
WHEREAS, Sections 2.01 and 2.02 of the Base Indenture provide that the Company and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of a new Series of Notes;
 
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this First Supplemental Indenture (the “ Supplemental Indenture ” and, together with the Base Indenture, the “ Indenture ”) to supplement the Base Indenture insofar as it will apply only to the 5.00% Convertible Senior Notes due August 15, 2015 (the “ Securities ”, each a “ Security ”) issued under the Indenture (and not to any other Series of Notes); and
 
WHEREAS, all things necessary have been done to make the Securities, when executed by the Company and authenticated and delivered under the Indenture by the Trustee and duly issued by the Company, the valid obligations of the Company, and to make this Supplemental Indenture a valid agreement of the Company, in accordance with their and its terms;
 
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
 
For and in consideration of the premises and the purchases of the Securities by the Holders thereof, 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 Securities:
 
ARTICLE 1
 
DEFINITIONS
 
Section 1.01         Definitions.
 
For all purposes of the Indenture and the Securities:
 
(a)           each term that is used but not defined in this Supplemental Indenture shall have the meaning provided in the Base Indenture;
 
(b)          each term that is defined in both this Supplemental Indenture and the Base Indenture shall have the meaning provided in this Supplemental Indenture unless otherwise specified herein;
 
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(c)           the below terms are defined as follows:
 
“ Add On Securities ” means any Securities originally issued after the date hereof pursuant to Section 2.03.
 
“ Additional Tax Amounts ” has the meaning specified in Section 7.03.
 
“ Agent ” means any Paying Agent, Registrar or Conversion Agent.
 
“ Base Indenture ” has the meaning provided in the first recital.
 
“ Business Day ” means any day other than (x) a Saturday, (y) a Sunday or (z) a day on which state or federally chartered banking institutions in New York, New York are not required to be open.
 
“ Cash ” or “ cash ” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts.
 
“ Closing Sale Price ” of the Common Stock means, as of any date of determination, the closing per share sale price (or, if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) as reported in composite transactions for the principal U.S. securities exchange on which the Common Stock is traded (or, if the Common Stock is not listed on a U.S. National Securities Exchange or U.S. regional securities exchange, as reported by Pink OTC Markets Inc.) at 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the relevant exchange or trading system on such date.
 
“ Common Stock ” means the common stock of the Company, $0.01 par value, as it exists on the date of this Supplemental Indenture and any shares of any class or classes of Capital Stock of the Company resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company and which are not subject to redemption by the Company; provided, however , that, if at any time there shall be more than one such resulting class, the shares of each such class then so issuable on conversion of Securities shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.
 
“ Company ” has the meaning provided in the preamble, subject to the provisions of Section 8.02.
 
“ Continuing Director ” means, as of any date of determination, any member of the board of directors of the Company who (i) was a member of such board of directors on the Original Issue Date of the Securities, or (ii) was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election.
 
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“ Conversion Period ”, with respect to any Security, means the 25 consecutive Trading Day period beginning on and including the third Trading Day immediately following the related Conversion Date, except that if a Holder surrenders a Security for conversion at any time after the 60th Scheduled Trading Day prior to the Final Maturity Date and until the close of business on the second Scheduled Trading Day immediately preceding the Final Maturity Date, then (i) the Holder will be deemed to have surrendered such Security as of the 30th Trading Day immediately preceding the Final Maturity Date, (ii) the Conversion Period for such Security will commence on the 27th Trading Day immediately preceding the Final Maturity Date, and (iii) the Settlement Date for the conversion of such Security will be the Final Maturity Date (assuming no delay in settlement due to Market Disruption Events).
 
“ Conversion Rate ” means, as of any date, an amount equal to $1,000 divided by the then applicable Conversion Price on such date.
 
“ Daily Conversion Value ” means, in respect of each of the 25 consecutive Trading Days during any Conversion Period, for each $1,000 in aggregate principal amount of Securities, one-twenty-fifth (1/25th) of the product of (i) the applicable Conversion Rate and (ii) the Daily VWAP of the Common Stock (or other Reference Property, if applicable) on such Trading Day.
 
“ Daily Measurement Value ” means the Specified Dollar Amount, if any, divided by 25.
 
“ Daily Net Share Settlement Value ” means, in respect of any Trading Day, the number of shares of Common Stock equal to (1) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (2) the Daily VWAP of the Common Stock for such Trading Day.
 
“ Daily Settlement Amount ” means, in respect of each of the 25 consecutive Trading Days during any Conversion Period, for each $1,000 aggregate principal amount of Securities validly surrendered for conversion:
 
(i)                                      if the Daily Conversion Value for such Trading Day for each $1,000 aggregate principal amount of Securities exceeds the Daily Measurement Value, the sum of:
 
(a)                                   a cash payment of the Daily Measurement Value; and
 
(b)                                  the Daily Net Share Settlement Value; or
 
(ii)                                   if the Daily Conversion Value for such Trading Day for each $1,000 aggregate principal amount of Securities is less than or equal to the Daily Measurement Value, a cash payment equal to the Daily Conversion Value.
 
“ Daily VWAP ” for the Common Stock (or any security that is part of the Reference Property into which the Common Stock has been converted, if applicable), in respect of any Trading Day, means the per share volume-weighted average price of the Common Stock
 
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(or other security) on the New York Stock Exchange (or other principal exchange on which such security is then listed) as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GNK.N Equity AQR” (or its equivalent successor if such page is not available, or the Bloomberg page for any security that is part of the Reference Property into which the Common Stock has been converted, if applicable) in respect of the period from the scheduled opening of trading until the scheduled close of trading of the primary trading session on such Trading Day, or, if such volume-weighted average price is unavailable (or the Reference Property is not a security), the market value of one share of the Common Stock (or other Reference Property) on such Trading Day as determined in good faith by the Board of Directors in a commercially reasonable manner, using a volume-weighted average price method (unless the Reference Property is not a security), provided that in making a volume-weighted average pricing determination, the Board of Directors may rely conclusively on the determination of Daily VWAP for such Trading Day made by an independent nationally recognized securities dealer selected by the Board of Directors), and will be determined without regard to after-hours trading or any other trading outside of the regular trading session.
 
“ Ex-Dividend Date ” means, with respect to any dividend or distribution, the first date on which the shares of Common Stock trade, regular way, on the relevant exchange or in the relevant market from which the sale price was obtained without the right to receive such dividend or distribution.
 
“ Exchange Act ” means the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
 
“ Final Maturity Date ” means August 15, 2015.
 
“ Global Security ” means any Global Note representing Securities.
 
“ Indenture ” has the meaning provided in the third recital.
 
“ Market Disruption Event ” means (1) a failure by the primary exchange or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (2) the occurrence or existence for more than one half hour period in the aggregate on any Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the New York Stock Exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such day.
 
“ Original Issue Date ” means July 27, 2010.
 
“ Prospectus ” means the prospectus dated February 27, 2009, as supplemented by the prospectus supplement dated July 21, 2010, with respect to the Securities, filed by the Company with the SEC on July 22, 2010.
 
“ Scheduled Trading Day ” means any day that is scheduled to be a Trading Day.
 
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“ Securities ” has the meaning provided in the third recital.
 
“ Settlement Date ” means the third Business Day immediately following the last Trading Day in the relevant Conversion Period, unless otherwise specified herein.
 
“ Settlement Method ” means, with respect to any conversion of Securities, the relative proportions of cash and/or shares of Common Stock with which such conversion is to be settled under the Indenture, as elected by the Company under Section 6.05(a).
 
“ Significant Subsidiary ” means a Subsidiary of the Company that is a “significant subsidiary” (or any group of Subsidiaries that, taken together, would constitute a “significant subsidiary”) as defined in Regulation S-X under the Securities Act.
 
“ Specified Dollar Amount ” means the dollar amount in cash elected, or deemed elected, by the Company in respect of given Securities pursuant to Section 6.05(a).
 
“ Trading Day ” means any day during which (i) there is no Market Disruption Event and (ii) the New York Stock Exchange, or if the Common Stock is not listed on the New York Stock Exchange, the principal other U.S. national or regional securities exchange on which the Common Stock is then listed is open for trading or, if the Common Stock is not so listed, any Business Day.  A “Trading Day” only includes those days that have a scheduled closing time of 4:00 p.m., New York City time, or the then standard closing time for regular trading on the relevant exchange or trading system.
 
“ Trading Price ” means, on any date of determination with respect to any Security, the average of the secondary bid quotations per Security obtained by the Company or its agent for $5,000,000 principal amount of Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; provided that, if at least three such bids cannot reasonably be obtained, but two such bids can reasonably be obtained, then the average of these two bids shall be used; provided, further , that, if at least two such bids cannot reasonably be obtained, but one such bid can reasonably be obtained, this one bid shall be used.  If, on any date of determination, the Company or its agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Securities from an independent nationally recognized securities dealer, then the Trading Price of such Securities on such determination date will be deemed to be less than 98% of the Closing Sale Price of the Common Stock on such date multiplied by the then current Conversion Rate.
 
“ U.S. National Securities Exchange ” means the New York Stock Exchange, the Nasdaq Global Select Market, any of their respective successors or any other U.S. national securities exchange.
 
“ Voting Stock ” of a Person means any class or classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors, managers or trustees thereof.
 
5 

 
Section 1.02         Other Definitions .

Term	 	Defined in Section	
“Additional Shares”	 	5.02(a)	
“Change of Control”	 	4.01(a)	
“Closing Sale Price Condition”	 	6.01(a)	
“Conversion Agent”	 	2.04	
“Conversion Date”	 	6.02	
“Conversion Notice”	 	6.02	
“Conversion Obligation”	 	6.02	
“Conversion Price”	 	6.06	
“Effective Date”	 	5.02(a)	
“Event of Default”	 	9.01	
“Expiration Date”	 	6.06(e)	
“Expiration Time”	 	6.06(e)	
“Fundamental Change”	 	4.01(a)	
“Fundamental Change Purchase Date”	 	4.01(a)	
“Fundamental Change Purchase Notice”	 	4.01(c)	
“Fundamental Change Purchase Price”	 	4.01(a)	
“Interest Payment Date”	 	5.01(a)	
“Make Whole Adjustment Event”	 	5.02(a)	
“Make Whole Adjustment Event Period”	 	5.02(a)	
“Merger Event”	 	6.12	
“Reference Property”	 	6.12(a)	
“Record Date”	 	5.01(a)	
“Relevant Jurisdiction”	 	7.03	
“Spin-Off”	 	6.06(c)	
“Stock Price”	 	5.02(a)	
“Successor Person”	 	8.01(a)	
“Termination of Trading”	 	4.01(a)	
“Unissued Shares”	 	4.01(a)	
“Valuation Period”	 	6.06(c)	
“Weighted Average Consideration”	 	6.12(c)	
 
ARTICLE 2
 
THE SECURITIES
 
Section 2.01         Issue of Notes.  A Series of Notes which shall be designated the “5.00% Convertible Senior Notes due August 15, 2015” shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of the Indenture, including without limitation the terms set forth in this Supplemental Indenture.
 
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Section 2.02    Form and Dating.  The Securities and the corresponding Trustee’s certificate of authentication shall be substantially in the respective forms set forth in Exhibit A , which Exhibit is incorporated in and made part of this Indenture.  The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage.  The Company shall provide any such notations, legends or endorsements to the Trustee in writing.  The Securities shall be dated the date of their authentication .
 
Section 2.03    Execution and Authorization; Add On Securities.  The Trustee shall authenticate and make available for delivery Securities for original issue in the aggregate principal amount of up to $125,000,000 upon receipt of an Authentication Order; provided that Add On Securities may be issued in an unlimited aggregate principal amount without the consent of any Holders so long as such Securities are part of the same issue, within the meaning of Treasury Regulations Sections 1.1275-1(f) and 1.1275-2(k)(2), with the same terms (other than date of issuance and, if applicable, date from which interest will initially accrue) and with the same CUSIP number, as the Securities initially issued hereunder, and would be fungible with the Securities issued on the Original Issue Date for purposes of the Securities Act, the Exchange Act, other applicable U.S. securities laws and U.S. federal income tax laws.  If any Add On Securities are issued, the Securities issued on the Original Issue Date and such Add On Securities shall be treated as a single class for all purposes under this Indenture and shall vote together as one class on all matters with respect to the Securities.  Each Company Order shall specify the amount of Securities to be authenticated and the date on which each original issue of Securities is to be authenticated.
 
Section 2.04    Registrar, Paying Agent and Conversion Agent.
 
The Company will at all times maintain a Registrar, Paying Agent and agency where Securities may be presented for conversion (a “ Conversion Agent ”) in the Borough of Manhattan, The City of New York.
 
The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Conversion Agent.  If at any time the Company shall fail to maintain any such required Conversion Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations and surrenders may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and surrenders.  The Company hereby appoints the Trustee as the initial Conversion Agent for the Securities.
 
The Company may also from time to time designate one or more additional conversion agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Conversion Agent.  The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any Conversion Agent.  The term “Conversion Agent” includes any additional conversion agent.
 
Section 2.05    Transfer and Exchange.  Every Security presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an assignment
 
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form in the form included in Exhibit A and in form satisfactory to the Registrar and the Trustee duly executed by the Holder thereof or its attorney duly authorized in writing.
 
The last sentence of the first paragraph of Section 2.07 of the Base Indenture shall also not apply to any exchange pursuant to Sections 4.04 or 6.05.
 
None of the Company, any Registrar or the Trustee shall be required to exchange or register a transfer of any Securities or portions thereof in respect of which a Fundamental Change Purchase Notice has been delivered and not withdrawn by the Holder thereof or has been surrendered for conversion (except, in the case of the purchase or conversion of a Security in part, the portion thereof not to be purchased or converted).
 
Section 2.06    Outstanding Securities.
 
Securities converted pursuant to Article 6 are not outstanding Securities.
 
If a Paying Agent (other than the Company or an Affiliate of the Company) holds, in accordance with the terms hereof, money sufficient to pay the principal of, and any accrued interest on, any unconverted Security on the Final Maturity Date, then on and after such Final Maturity Date, (i) such Security will cease to be outstanding and interest thereon will cease to accrue and (ii) all other rights of the Holder in respect thereof shall terminate (other than the right to receive the principal of, and any accrued interest on, such Security).
 
If a Paying Agent (other than the Company or an Affiliate of the Company) holds, in accordance with the terms hereof, money sufficient to pay the Fundamental Change Purchase Price of any Security for which a Fundamental Change Purchase Notice has been tendered and not withdrawn in accordance with this Indenture, then, on the Fundamental Change Purchase Date, (i) such Security will cease to be outstanding and interest will cease to accrue thereon (whether or not book-entry transfer of such Security is made or whether or not such Security is delivered to the Paying Agent) and (ii) all other rights of the Holder in respect thereof shall terminate (other than the right to receive the Fundamental Change Purchase Price and any previously accrued and unpaid interest payable under the Indenture upon book-entry transfer or delivery of such Security).
 
Section 2.07    Cancellation.
 
The Conversion Agent shall forward to the Trustee or its agent any Securities surrendered to them for conversion.  The Company may not hold or resell Securities converted pursuant to Article 6 that are delivered for cancellation or issue any new Securities to replace any such Securities.
 
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ARTICLE 3
 
REDEMPTION
 
Section 3.01    Not Subject to Redemption
 
The Securities are not subject to redemption by the Company at any time.  Article 3 of the Base Indenture shall not apply to the Securities.
 
ARTICLE 4
 
PURCHASE OF SECURITIES UPON A FUNDAMENTAL CHANGE
 
Section 4.01    Purchase of Securities at Option of the Holder Upon Fundamental Change.
 
(a)    If at any time that Securities remain outstanding there shall occur a Fundamental Change, Securities shall be purchased by the Company at the option of the Holders, as of a date, determined by the Company in its sole discretion, that is not less than 20 Business Days and not more than 30 Business Days after the occurrence of the Fundamental Change (the “ Fundamental Change Purchase Date ”) at a purchase price equal to 100% of the principal amount of the Securities to be purchased, together with any accrued and unpaid interest to, but excluding, the Fundamental Change Purchase Date (the “ Fundamental Change Purchase Price ”), unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of the Securities as of the preceding Record Date and the Fundamental Change Purchase Price payable to any Holder surrendering such Holder’s Security for repurchase pursuant to this Article 4 shall be equal to the principal amount of Securities subject to repurchase and will not include any accrued and unpaid interest.  The Fundamental Change Purchase Price shall be payable in cash, subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 4.01.  Notwithstanding the foregoing, the Company may not repurchase any Securities upon the occurrence of a Fundamental Change if the principal amount of the Securities has been accelerated and such acceleration has not been rescinded on or prior to the Fundamental Change Purchase Date.
 
A “ Fundamental Change ” shall mean the occurrence of a Change in Control or a Termination of Trading.
 
A “ Change in Control ” shall be deemed to have occurred if any of the following occurs after the date hereof:
 
(i)             any “person” or “group” (as such terms are defined below) is or becomes the “beneficial owner” (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Company’s board of directors;
 
(ii)            the Company consolidates with, enters into a binding share exchange with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than any transaction
 
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(A) in which the Persons that “beneficially owned” (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “beneficially own” (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person, with such Holders’ proportional voting power immediately after such transaction vis-à-vis each other with respect to the securities they receive in such transaction being in substantially the same proportions as their respective voting power vis-à-vis each other immediately prior to such transaction, or (B) which (x) is effected solely to change the jurisdiction of incorporation of the Company and (y) results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving Person;
 
(iii)           the first day on which a majority of the members of the board of directors of the Company are not Continuing Directors; or
 
(iv)           the holders of Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with the terms of this Indenture).
 
For the purpose of the definition of “ Change in Control ”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provision to either of the foregoing, and the term “group” includes any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor provision thereto), (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares deemed to be held by the “person” or “group” (as such terms are defined above) or other Person with respect to which the Change in Control determination is being made, all Unissued Shares deemed to be held by all other Persons, and (iii) the terms “beneficially own” and “beneficially owned” shall have meanings correlative to that of “beneficial owner.”  The term “ Unissued Shares ” means shares of Voting Stock not outstanding that are subject to options, warrants, rights to purchase or conversion privileges exercisable within 60 days of the date of determination of a Change in Control.
 
Notwithstanding anything to the contrary set forth in this Section 4.01, Holders shall not have the right to require the Company to purchase any Securities under clauses (i) or (ii) above, and the Company shall not be required to deliver a written notice of a Fundamental Change incidental thereto as a result of any acquisition, consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition in which at least
 
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90% of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) paid for the Common Stock in such transaction or transactions consists of shares of common stock traded on any U.S. National Securities Exchange, or which will be so traded immediately following the transaction or transactions, and, as a result of such transaction or transactions the Securities become convertible into such shares of such common stock.
 
A “ Termination of Trading ” means that the Common Stock or other securities into which the Securities are convertible are not approved for listing on any U.S. National Securities Exchange.
 
If any transaction in which the Common Stock is replaced by the securities of another entity occurs, following completion of any related Make Whole Adjustment Event Period and any related Fundamental Change Purchase Date, references to the Company in the definitions of “Fundamental Change,” “Change of Control” and “Termination of Trading” above shall apply to such other entity instead.
 
(b)    Within 10 Business Days after the occurrence of a Fundamental Change, the Company shall mail a written notice of the Fundamental Change to the Trustee, Conversion Agent, Registrar and Paying Agent and to each Holder (and to beneficial owners as required by applicable law).  The Company shall also issue a press release announcing the occurrence of such Fundamental Change (and make such press release available on the Company’s website).  The notice shall include the form of a Fundamental Change Purchase Notice to be completed by the Holder and shall state:
 
(i)             briefly, the events causing such Fundamental Change;
 
(ii)            the effective date of such Fundamental Change;
 
(iii)           whether the Fundamental Change constitutes a Make Whole Adjustment Event and, if so, the Effective Date of such Make Whole Adjustment Event;
 
(iv)           briefly, the conversion rights of the Securities, the Conversion Price and any adjustments thereto;
 
(v)            the Holder’s right to require the Company to purchase the Securities;
 
(vi)           the Fundamental Change Purchase Date;
 
(vii)          the Fundamental Change Purchase Price;
 
(viii)         the date by which the Fundamental Change Purchase Notice pursuant to this Section 4.01 must be given;
 
(ix)            that Securities as to which a Fundamental Change Purchase Notice has been given may be converted into Cash and Common Stock (if any)
 
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pursuant to Article 6 only to the extent that the Fundamental Change Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
 
(x)             the procedures that the Holder must follow to exercise rights under this Section 4.01;
 
(xi)            the procedures for withdrawing a Fundamental Change Purchase Notice, including a form of notice of withdrawal;
 
(xii)           that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities; and
 
(xiii)          the name and address of each Paying Agent and Conversion Agent.
 
If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securities.
 
(c)    A Holder may exercise its rights specified in subsection (a) of this Section 4.01 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may (or, if definitive certificated Securities have not been issued, shall) be delivered electronically or by other means in accordance with the Depositary’s customary procedures) of the exercise of such rights (a “ Fundamental Change Purchase Notice ”) to any Paying Agent at any time during the period between the date on which notice is given of the Fundamental Change and the close of business on the second Scheduled Trading Day immediately preceding the Fundamental Change Purchase Date.  The Fundamental Change Purchase Notice must specify the Securities for which the purchase right is being exercised.
 
The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Purchase Price therefor.
 
The Company shall purchase from the Holder thereof, pursuant to this Section 4.01, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to the purchase of all of a Security pursuant to Section 4.01 through Section 4.04 also apply to the purchase of such portion of such Security.
 
Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the Fundamental Change Purchase Notice contemplated by this subsection (c) shall have the right to withdraw such Fundamental Change Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately
 
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preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 4.02.
 
A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written withdrawal thereof.
 
Anything herein to the contrary notwithstanding, in the case of Global Securities, any Fundamental Change Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
 
Section 4.02    Effect of Fundamental Change Purchase Notice.
 
Upon receipt by any Paying Agent of the Fundamental Change Purchase Notice specified in Section 4.01(c), the Holder of the Security in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn as specified below) thereafter be entitled to receive the Fundamental Change Purchase Price with respect to such Security.  Such Fundamental Change Purchase Price shall be paid to such Holder promptly following the later of (a) the Fundamental Change Purchase Date with respect to such Security ( provided the conditions in Section 4.01(c) have been satisfied) and (b) the time of delivery of such Security to a Paying Agent by the Holder thereof in the manner required by Section 4.01(c).  Securities in respect of which a Fundamental Change Purchase Notice has been given by the Holder thereof may not be converted into shares of Common Stock pursuant to Article 6 on or after the date of the delivery of such Fundamental Change Purchase Notice unless such Fundamental Change Purchase Notice has first been validly withdrawn.
 
A Fundamental Change Purchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary’s customary procedures) of withdrawal delivered by the Holder to a Paying Agent at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding the Fundamental Change Purchase Date, specifying the principal amount of the Security or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof) with respect to which such notice of withdrawal is being submitted.
 
Section 4.03    Deposit of Fundamental Change Purchase Price.
 
On or before 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent (other than the Company or an Affiliate of the Company) an amount of money (in immediately available funds if deposited on such Fundamental Change Purchase Date) sufficient to pay the aggregate Fundamental Change Purchase Price of all the Securities or portions thereof that are to be purchased as of such Fundamental Change Purchase Date.  The manner in which the deposit required by this Section 4.03 is made by the Company shall be at the option of the Company; provided that such deposit shall be made in a manner such that the Paying Agent shall have immediately available funds on the Fundamental Change Purchase Date.
 
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The Company shall publicly announce the principal amount of Securities purchased as a result of such Fundamental Change on or as soon as practicable after the Fundamental Change Purchase Date.
 
To the extent that the aggregate amount of cash deposited by the Company pursuant to this Section 4.03 exceeds the aggregate Fundamental Change Purchase Price of the Securities or portions thereof that the Company is obligated to purchase, then promptly after the Fundamental Change Purchase Date the Paying Agent shall return any such excess cash to the Company.
 
Section 4.04    Securities Purchased in Part.
 
Any Security that is to be purchased only in part shall be surrendered at the office of a Paying Agent, and promptly after the Fundamental Change Purchase Date the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of such authorized denomination or denominations as may be requested by such Holder, in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered that is not purchased.
 
Section 4.05    Compliance with Securities Laws Upon Purchase of Securities.
 
In connection with any offer to purchase or repurchase Securities under Section 4.01, the Company shall (a) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, to the extent any such rules are applicable, (b) file a Schedule TO (or any successor or similar schedule, form or report), if required, under the Exchange Act and (c) otherwise comply with all federal and state securities laws in connection with such offer to purchase or repurchase Securities, all so as to permit the rights of the Holders and obligations of the Company under Section 4.01 through Section 4.04 to be exercised in the time and in the manner specified therein.
 
ARTICLE 5
 
PAYMENT OF INTEREST AND MAKE WHOLE ADJUSTMENT EVENTS
 
Section 5.01    Interest and Principal Payments.
 
(a)    The Company shall pay interest on the Securities at a rate of 5.00% per annum, payable semi-annually in arrears on February 15 and August 15 of each year (each, an “ Interest Payment Date ”), or if any such day is not a Business Day, the immediately following Business Day, commencing February 15, 2011.  Interest on a Security shall be paid to the Holder of such Security at the close of business on February 1 or August 1 (each, a “ Record Date ”), as the case may be, next preceding the related Interest Payment Date, and shall be computed on the basis of a 360-day year comprised of twelve 30-day months.  In the event of a Security’s maturity, conversion, or purchase by the Company at the option of the Holder thereof, interest shall cease to accrue on such Security.  The Company shall pay interest on each Interest Payment Date (including the Final Maturity Date) to Holders of record of a Security on the Record Date
 
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immediately preceding such Interest Payment Date regardless of whether such Holders convert their Securities after such Record Date.
 
The Company shall make all payments in respect of a Global Security registered in the name of the Depositary or its nominee to the Depositary or its nominee, as the case may be, in its capacity as the Holder under the Indenture, by wire transfer of immediately available funds to the account of the Depositary or its nominee.  The Company shall make all payments in respect of a certificated Security (including principal and interest) in U.S. dollars at the office of the Trustee.  At the Company’s option, the Company may make such payments by mailing a check to the registered address of each Holder thereof as such address shall appear on the register or, if requested by a Holder of more than $5,000,000 in aggregate principal amount of Securities, by wire transfer of immediately available funds to the account in the United States specified by such Holder.
 
(b)    Upon conversion of a Security, (i) a Holder shall not receive any additional cash payment of interest (unless such conversion occurs between a Record Date and the Interest Payment Date to which it relates, in which case a Holder that was the Holder on the Record Date will receive on the Interest Payment Date accrued and unpaid interest) and the Conversion Price shall not be adjusted to account for accrued and unpaid interest and (ii) except as set forth in clause (c) below, the Company’s delivery to a Holder of cash and shares, if any, of Common Stock into which the Security is convertible shall be deemed to satisfy its obligation to pay the principal amount of such Security and accrued and unpaid interest, if any, to, but not including, the Conversion Date with respect to such Security.  Any accrued but unpaid interest to, but not including, the Conversion Date with respect to such Security, shall be deemed to be paid in full upon conversion, rather than cancelled, extinguished or forfeited.
 
(c)    Securities surrendered for conversion by a Holder after the close of business on any Record Date but prior to the next Interest Payment Date must be accompanied by payment of an amount equal to the interest that will be payable on the Securities so converted on such Record Date; provided , however, that no such payment need be made (1) if the Company has specified a Fundamental Change Purchase Date that is after a Record Date and on or prior to the corresponding Interest Payment Date, (2) with respect to any Securities surrendered for conversion following the Record Date for the payment of interest immediately preceding the Final Maturity Date or (3) only to the extent of overdue interest, if any overdue interest exists at the time of conversion with respect to such Securities.
 
Section 5.02    Increased Conversion Rate Applicable to Certain Securities Surrendered in Connection with Make Whole Adjustment Events.
 
(a)    Notwithstanding anything herein to the contrary, in the event a Holder elects to surrender its Securities for conversion in accordance with Article 6, at any time from, and including, the Effective Date of a Make Whole Adjustment Event to, and including, the close of business on the second Scheduled Trading Day immediately preceding the related purchase date, or (in the case of a Make Whole Adjustment Event that does not also constitute a Fundamental Change) the 40th Scheduled Trading Day immediately following the Effective Date of such Make Whole Adjustment Event (such period, the “ Make Whole Adjustment Event Period ”), the
 
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Company shall increase the Conversion Rate for the Securities surrendered for conversion by a number of additional shares of Common Stock (the “ Additional Shares ”), as set forth in this Section 5.02.
 
As used herein, a “ Make Whole Adjustment Event ” means (i) any Change in Control under clauses (i), (ii) and (iv) of the definition of that term herein and (ii) any Termination of Trading; provided , however , that an acquisition, consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition otherwise constituting a Change in Control will not constitute a Make Whole Adjustment Event if at least 90% of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) paid for the Common Stock in such transaction or transactions consists of shares of common stock traded on any U.S. National Securities Exchange, or which will be so traded immediately following the transaction or transactions, and, as a result of such transaction or transactions, the Securities become convertible into such shares of such common stock.
 
The number of Additional Shares by which the Conversion Rate shall be increased for conversions in connection with a Make Whole Adjustment Event shall be determined by reference to the table below and is based on the date on which the Make Whole Adjustment Event occurs or becomes effective (the “ Effective Date ”) and (1) the price paid or deemed paid per share of Common Stock in the Change in Control in the case of a Make Whole Adjustment Event that is the subject of clause (ii) of the definition of Change in Control in Section 4.01, in the event that the Common Stock is acquired for cash, or (2) the average of the Closing Sale Price of the Common Stock over the five Trading Day period ending on the Trading Day immediately preceding the Effective Date of such other Make Whole Adjustment Event, in the case of any other Make Whole Adjustment Event (such amount determined under the first and second clause of this sentence, as applicable, the “ Stock Price ”).

 	 	Stock Price	 	
Effective Date	 	$16.00	 	$17.00	 	$18.00	 	$20.00	 	$22.00	 	$24.00	 	$26.00	 	$28.00	 	$30.00	 	$32.50	 	$35.00	 	$37.50	 	$40.00	 	$42.50	 	$45.00	 	
July 27, 2010	 	11.47	 	9.94	 	8.64	 	6.56	 	5.00	 	3.82	 	2.92	 	2.21	 	1.66	 	1.13	 	0.74	 	0.45	 	0.24	 	0.09	 	0.00	 	
August 15, 2011	 	11.47	 	10.38	 	8.96	 	6.72	 	5.07	 	3.84	 	2.90	 	2.17	 	1.62	 	1.09	 	0.70	 	0.42	 	0.22	 	0.08	 	0.00	 	
August 15, 2012	 	11.47	 	10.60	 	9.06	 	6.66	 	4.93	 	3.65	 	2.70	 	1.98	 	1.44	 	0.94	 	0.58	 	0.32	 	0.15	 	0.04	 	0.00	 	
August 15, 2013	 	11.47	 	10.43	 	8.74	 	6.17	 	4.37	 	3.10	 	2.19	 	1.53	 	1.05	 	0.63	 	0.34	 	0.15	 	0.03	 	0.00	 	0.00	 	
August 15, 2014	 	11.47	 	9.32	 	7.43	 	4.69	 	2.92	 	1.80	 	1.09	 	0.64	 	0.35	 	0.13	 	0.01	 	0.00	 	0.00	 	0.00	 	0.00	 	
August 15, 2015	 	11.47	 	7.78	 	4.52	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	0.00	 	
 
If the exact Stock Prices and Effective Dates are not set forth in the table, then:  (i) if the Stock Price is between two Stock Price amounts in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares by which the Conversion Rate is increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the earlier and later Effective Dates in the table, based on a 365-day year; (ii) if the Stock Price exceeds $45.00 per share, subject to adjustment as set forth herein, no Additional Shares shall be added to the Conversion Rate; and (iii) if the Stock Price is less than $16.00 per share, subject to adjustment as set forth herein, no Additional Shares shall be added to the Conversion Rate.
 
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Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock issuable upon conversion as a result of the adjustment described in this Section 5.02 exceed 62.5 shares per $1,000 principal amount of Securities, provided that such number of shares of Common Stock shall be adjusted for the same events for which the Conversion Price is adjusted, by the inverse of the adjustment factor applied in such Conversion Price adjustment, pursuant to Section 6.06.
 
As soon as practicable after the Company determines the anticipated Effective Date of any proposed Make Whole Adjustment Event, the Company shall mail to each Holder, the Trustee and the Conversion Agent written notice of, and shall use commercially reasonable efforts to give such notice not more than 70 Scheduled Trading Days nor less than 40 Scheduled Trading Days in advance of such anticipated Effective Date.  The Company shall also issue a press release announcing the anticipated Effective Date (and make such press release available on the Company’s website).  Each such notice and press release shall also state that in connection with such Make Whole Adjustment Event, the Company shall increase, in accordance herewith, the Conversion Rate applicable to Securities entitled to such increase as provided herein (along with a description of how such increase shall be calculated and the time periods during which Securities must be surrendered in order to be entitled to such increase).
 
Section 5.03         Adjustments Relating to Make Whole Adjustment Event.
 
Whenever the Conversion Price of the Securities shall be adjusted from time to time by the Company pursuant to Section 6.06, each Stock Price set forth in the table under the row titled “Stock Price” in the table in Section 5.02(a) shall be adjusted in the same manner in which, at the same time and for the same events for which, the Conversion Price is to be so adjusted.  The Stock Prices in the table in Section 5.02(a) shall be adjusted by the same adjustment factor applied to the Conversion Price pursuant to Section 6.06 and the number of additional shares by which the Conversion Rate will be increased shall be adjusted by the inverse of that adjustment factor.
 
ARTICLE 6
 
CONVERSION
 
Section 6.01         Conversion Privilege .
 
(a)           Subject to the further provisions of this Article 6 and paragraph 6 of the Securities, a Holder of a Security may convert the principal amount of such Security (or any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof) into cash, shares of Common Stock or a combination thereof, determined at the Company’s election, at any time until the close of business on February 15, 2015, at the Conversion Price then in effect, if, during any calendar quarter commencing after the date of original issuance of the Securities, the Closing Sale Price of the Common Stock, for at least 20 Trading Days in the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 130% of the Conversion Price in effect on such last Trading Day (the “ Closing Sale Price Condition ”), subject to the additional exceptions provided in Section 6.01(b).
 
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Provisions of this Indenture that apply to conversion of all of a Security also apply to conversion of a portion of a Security.
 
A Security in respect of which a Holder has delivered a Fundamental Change Purchase Notice pursuant to Section 4.01(c) exercising the option of such Holder to require the Company to purchase such Security may be converted only if such Fundamental Change Purchase Notice is withdrawn by a written notice of withdrawal delivered to a Paying Agent prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding the Fundamental Change Purchase Date in accordance with Section 4.02.
 
A Holder of Securities is not entitled to any rights of a holder of Common Stock until such Holder has converted its Securities and only to the extent such Securities are deemed to have been converted into Common Stock pursuant to this Article 6.
 
(b)          Even if the Closing Sale Price Condition is not satisfied,
 
(i)                                      if, after any five consecutive Trading Day period in which the Trading Price for the Securities for each such Trading Day was less than 98% of the Closing Sale Price of the Common Stock on such date multiplied by the then current Conversion Rate, a Holder may surrender Securities for conversion at any time during the following ten consecutive Business Days.  Upon request by any Holder or beneficial owner of the Securities, the Company or its agent shall determine if the Securities are convertible pursuant to this Section 6.01(b)(i) and will notify the Trustee accordingly.  The Company shall have no obligation to determine the Trading Price of the Securities unless a Holder provides the Company and the Trustee with reasonable evidence that the Trading Price of the Securities on any Trading Day would be less than 98% of the product of the then-current Conversion Rate times the Closing Sale Price of the Common Stock on such date.  At such time, the Company shall determine the Trading Price of the Securities beginning on such Trading Day and on each of the next four Trading Days;
 
(ii)                                   in the event that the Company elects to distribute to all or substantially all holders of Common Stock:
 
(a)                                   any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 days, shares of Common Stock at a price per share less than the Closing Sale Price on the announcement date for such dividend or distribution, or
 
(b)                                  cash, debt securities (or other evidences of indebtedness) or other assets (excluding dividends or distributions for which Conversion Price adjustment is required to be made under Section 6.06(a) or Section 6.06(b)), where the fair market value of such distribution per share of Common Stock, as determined in this Indenture, together with all other such distributions within the preceding twelve months, has a per share value exceeding 10% of the Closing
 
18 

 
Sale Price of the Common Stock as of the Trading Day immediately preceding the date of declaration for such distribution,
 
then, in each case of clause (a) and (b), the Securities may be surrendered for conversion beginning on the date the Company gives notice to the Holders of such right, which notice shall be given not less than 40 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the second Scheduled Trading Day immediately preceding the Ex-Dividend Date or the Company announces that such distribution will not take place;
 
(iii)                                upon the occurrence of a Fundamental Change with respect to the Company, the Securities may be surrendered for conversion at any time from or after the effective time of the Fundamental Change until the close of business on the second Scheduled Trading Day immediately preceding the related Fundamental Change Purchase Date, or, if there is no such Fundamental Change Purchase Date, the 40th Scheduled Trading Day immediately following the effective date of the Fundamental Change (with the Company, to the extent practicable, giving Holders notice of the anticipated effective date for a Fundamental Change not more than 70 Scheduled Trading Days nor less than 40 Scheduled Trading Days prior to such anticipated effective date);
 
(iv)                               if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of its property and assets that does not also constitute a Fundamental Change (including any event that would be a Fundamental Change but for the existence of an exception specified in the paragraph immediately preceding the definition of “Termination of Trading” in Section 4.01), in each case pursuant to which the Common Stock would be converted into cash, securities or other property, the Securities may be surrendered for conversion at any time from or after the effective date of such transaction as announced by the Company (with the Company giving such announcement at least 40 Scheduled Trading Days prior to such anticipated effective date), until the close of business on the 40th Scheduled Trading Day following the effective date of such transaction; and
 
(v)                                  at any time after February 15, 2015 and until the close of business on the second Scheduled Trading Day immediately prior to the Final Maturity Date, the Securities may be surrendered for conversion regardless of whether the Closing Sale Price Condition or any of the other foregoing conditions has been satisfied.
 
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Section 6.02         Conversion Procedure.
 
The right to convert any Security may be exercised, (a) if such Security is represented by a Global Security, by book-entry transfer to the Conversion Agent through the facilities of the Depositary in accordance with the applicable procedures of the Depositary, and, if required, by payment of any tax or duty, in accordance with Section 6.04, that may be payable in respect of any transfer involving the issue or delivery of the Common Stock in the name of a Person other than the Holder of the Security, or (b) if such Security is represented by a certificated Security, by delivery of such Security at the specified office of the Conversion Agent, accompanied by:  (i) a duly signed and completed conversion notice, in the form as set forth on the reverse of the Security attached hereto as Exhibit A (a “ Conversion Notice ”); (ii) if such certificated Security has been lost, stolen, destroyed or mutilated, a notice to the Registrar in accordance with Section 2.08 of the Base Indenture regarding the loss, theft, destruction or mutilation of the Security; (iii) appropriate endorsements and transfer documents if required by the Conversion Agent; and (iv) payment of any tax or duty, in accordance with Section 6.04, which may be payable in respect of any transfer involving the issue or delivery of the Common Stock in the name of a Person other than the Holder of the Security.  The “ Conversion Date ” for any Security shall be the Business Day on which the Holder of the Security satisfies all of the requirements set forth in the immediately preceding sentence; provided , however , if a Holder surrenders for conversion a Security at any time after the 60th Scheduled Trading Day prior to the Final Maturity Date, the Conversion Date shall be deemed to be the 30th Trading Day immediately preceding such Security’s Final Maturity Date.  On the Settlement Date, subject to Section 6.05, the Company shall deliver to the Holder through a Conversion Agent a certificate for the number of whole shares of Common Stock issuable upon the conversion and/or cash in an amount payable upon conversion (including cash in lieu of any fractional shares pursuant to Section 6.03), as applicable.
 
Securities that are validly surrendered for conversion in accordance with the terms of this Indenture will be deemed to have been converted immediately prior to the close of business on the Conversion Date.  The person in whose name the Common Stock certificate is registered shall be deemed to be a stockholder of record as of the last Trading Day of the related Conversion Period; provided , however , that if the related Conversion Date or such last Trading Day of the Conversion Period occurs on any date when the stock transfer books of the Company shall be closed, such occurrence shall not be effective to constitute the person or persons entitled to receive any such shares of Common Stock due upon conversion as the record holder or holders of such shares of Common Stock on such date, but such occurrence shall be effective to constitute the person or persons entitled to receive such shares of Common Stock as the record holder or holders thereof for all purposes at the close of business on the next succeeding day on which such stock transfer books are open.  Upon conversion of Securities, such person shall no longer be a Holder.
 
Upon surrender of a Security that is converted in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder, a new Security equal in principal amount to the unconverted portion of the Security surrendered.
 
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No Conversion Notice with respect to any Securities may be given by a Holder thereof if such Holder has also delivered a Fundamental Change Purchase Notice to the Company in respect of such Securities and not validly withdrawn such Fundamental Change Purchase Notice in accordance with Section 4.02, unless the Company defaults in the payment of the Fundamental Change Purchase Price.
 
Except as provided below, the Company shall pay or deliver the amount of cash, shares of Common Stock, if any, or combination thereof, payable or deliverable, as the case may be, upon conversion of a Security (the “ Conversion Obligation ”), through the Conversion Agent on the Settlement Date; provided , that if prior to the relevant Conversion Date for any converted Securities, the Common Stock has been replaced by Reference Property consisting solely of cash, pursuant to Section 6.12, the Company shall pay such cash in respect of the conversion on the third Trading Day immediately following the related Conversion Date.  Notwithstanding the foregoing, if any information required to calculate the Conversion Obligation is not available as of the applicable Settlement Date, the Company shall deliver the Conversion Obligation on the third Trading Day after the earliest Trading Day on which such calculation can be made (but in no event later than February 14, 2016).  If application of the proviso to the first sentence of this paragraph would result in settlement of a conversion during the 10 Trading Days immediately following the effective date of a Fundamental Change, the Settlement Date will instead be the 10th Trading Day following the relevant effective date. If any shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the number of full shares of Common Stock to which such Holder shall be entitled in satisfaction of such Conversion Obligation.
 
Section 6.03         Fractional Shares.
 
The Company will not issue fractional shares of Common Stock upon conversion of a Security.  Instead, the Company will pay cash in lieu of fractional shares based on the Daily VWAP of the Common Stock on the relevant Conversion Date if the Company has elected to satisfy its Conversion Obligation solely in shares of Common Stock or based on the Daily VWAP of the Common Stock on the last Trading Day of the relevant Conversion Period in the case of any other Settlement Method.  Whether fractional shares are issuable upon a conversion will be determined on the basis of the aggregate principal amount of Securities that the Holder is then converting into cash and shares of Common Stock, if any, and the aggregate number of shares, if any, of Common Stock issuable upon such conversion.
 
Section 6.04         Taxes on Conversion.
 
If a Holder converts a Security, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of shares of Common Stock upon such conversion; provided , however , that the Holder shall pay any such tax which is due because the Holder requests the shares to be issued in a name other than the Holder’s name.  The Conversion Agent may refuse to deliver the certificate representing the Common Stock being issued in a name other than the Holder’s name until the Conversion Agent receives a sum sufficient to pay
 
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any tax which will be due because the shares are to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any tax withholding required by law or regulation.
 
Section 6.05         Settlement Upon Conversion.
 
(a)           Subject to Section 6.01, a Holder upon conversion will receive, in respect of each $1,000 aggregate principal amount of such Holder’s Securities being converted, cash, shares of Common Stock or a combination thereof pursuant to the Company’s election of the Settlement Method.  All conversions after February 15, 2015 shall be settled using the same Settlement Method (in the same relative proportions of cash and shares of Common Stock).  If the Company has not delivered a notice to the Conversion Agent and Holders of its election of Settlement Method on or prior to February 15, 2015, the Company will, with respect to any conversions thereafter, be deemed to have elected to deliver, pursuant to 6.05(b)(iii) below, cash or cash and shares of Common Stock, as the case may be, in respect of its Conversion Obligation and the Specified Dollar Amount will be equal to $1,000.  On or prior to February 15, 2015, the Company shall use the same Settlement Method for all conversions occurring on any given Conversion Date.  Except for any conversions that occur after February 15, 2015, the Company will not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates.  If the Company elects a particular Settlement Method in connection with any conversion on or prior to February 15, 2015, it will inform Holders converting at that time through the Trustee of the Settlement Method the Company has selected (including the Specified Dollar Amount, if applicable), no later than the second Business Day immediately following the related Conversion Date.  If the Company does not make such an election, it will be deemed to have elected to deliver, pursuant to Section 6.05(b)(iii) below, cash or a combination of cash and shares of Common Stock, as the case may be, in respect of its Conversion Obligation and the Specified Dollar Amount will be equal to $1,000 for each such Conversion Date.  The Company may, at its option, for purposes of the Daily Settlement Amount irrevocably elect a particular Specified Dollar Amount for all subsequent conversions by notice of such election to the Holders.
 
(b)          The Conversion Obligation deliverable on the Settlement Date will be calculated as follows:
 
(i)                                      if the Company elects to satisfy its Conversion Obligation solely in shares of Common Stock, the Company shall deliver to the converting Holder a number of shares of Common Stock equal to (1) the aggregate principal amount of Securities to be converted divided by $1,000, multiplied by (2) the applicable Conversion Rate;
 
(ii)                                   if the Company elects to satisfy its Conversion Obligation solely in cash, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Conversion Period; and
 
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(iii)                                if the Company elects to satisfy its Conversion Obligation through the delivery of a combination of cash and shares of Common Stock, it shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted an amount of cash and shares of Common Stock, if any, equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive Trading Days during the related Conversion Period.
 
(c)           The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Conversion Period.  Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash deliverable in lieu of fractional shares (if any), the Company shall notify the Trustee and the Conversion Agent of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash deliverable in lieu of fractional shares of Common Stock.  The Trustee and the Conversion Agent shall have no responsibility for any such determination.
 
(d)          The Company shall, prior to the issuance of any Securities hereunder, and from time to time as may be necessary, reserve at all times and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, a sufficient number of shares of Common Stock deliverable upon conversion of all of the Securities.
 
(e)           All shares of Common Stock that may be issued upon conversion of the Securities shall be newly issued shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free of any preemptive rights and free of any lien or adverse claim.
 
(f)             The Company shall endeavor to comply with all applicable securities laws regulating the offer and delivery of any Common Stock upon conversion of Securities and shall list or cause to have quoted such shares of Common Stock on each National Securities Exchange, including the New York Stock Exchange, or over-the-counter market or such other market on which the Common Stock is then listed or quoted; provided, however, that if the rules of such automated quotation system or exchange permit the Company to defer the listing of such Common Stock until the first conversion of the Securities into Common Stock in accordance with the provisions of this Indenture, the Company covenants to list such Common Stock issuable upon conversion of the Securities in accordance with the requirements of such automated quotation system or exchange at such time.
 
(g)          Notwithstanding anything herein to the contrary, nothing herein shall give to any Holder any rights as a creditor in respect of its right to conversion.
 
Section 6.06         Adjustment of Conversion Price.
 
The conversion price per share of Common Stock as stated in paragraph 6 of the Securities (the “ Conversion Price ”) shall be adjusted from time to time by the Company as follows:
 
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(a)           If the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially all outstanding shares of Common Stock, or if the Company subdivides or combines the outstanding shares of Common Stock, the Conversion Price shall be adjusted based on the following formula:

CP = CP 0  ×	 	OS 0	 	 	
 	 	OS	 	 	
 
where

 	CP 0	 	=	 	the Conversion Price in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately prior to the open of business on the effective date of such subdivision or combination of Common Stock, as the case may be;	
 	 	 	 	 	 	
 	CP	 	=	 	the Conversion Price in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the effective date of such subdivision or combination of Common Stock, as the case may be;	
 	 	 	 	 	 	
 	OS 0	 	=	 	the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately prior to the open of business on the effective date of such subdivision or combination of Common Stock, as the case may be; and	
 	 	 	 	 	 	
 	OS	 	=	 	the number of shares of Common Stock that would be outstanding immediately after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination of Common Stock, as the case may be.	
 
Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend Date for such dividend or distribution, or the effective date for such subdivision or combination of Common Stock.  If any dividend or distribution that is the subject of this Section 6.06(a) is declared but not paid or made, or the outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Price that would then be in effect if such dividend, distribution, subdivision or combination of Common Stock had not been declared or announced.
 
(b)          If the Company distributes to all or substantially all holders of Common Stock any rights, options or warrants entitling them for a period of not more than 60 calendar days from the record date for such distribution to subscribe for or purchase shares of the Common Stock (or securities convertible into Common Stock), at a price per share (or a conversion price per share)
 
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less than the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Price shall be decreased based on the following formula:

CP = CP 0  ×	 	OS 0  + Y	 	 	
 	 	OS 0  + X	 	 	
 
where

 	CP 0	 	=	 	the Conversion Price in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;	
 	 	 	 	 	 	
 	CP	 	=	 	the Conversion Price in effect immediately after the open of business on the Ex-Dividend Date for such distribution;	
 	 	 	 	 	 	
 	OS 0	 	=	 	the number of shares of the Common Stock that are outstanding immediately prior to the open of business on the Ex-Dividend Date for such distribution;	
 	 	 	 	 	 	
 	X	 	=	 	the total number of shares of the Common Stock issuable pursuant to such rights, options or warrants; and	
 	 	 	 	 	 	
 	Y	 	=	 	the number of shares of the Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date relating to such distribution.	
 
Such adjustment shall be successively made whenever any such rights, options or warrants are distributed and shall become effective immediately after the opening of business on the Ex-Dividend Date for such distribution.  To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.  If such rights, options or warrants are not so distributed, the Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to be the Conversion Price that would then be in effect if such Ex-Dividend Date for such distribution had not been fixed.
 
For purposes of this Section 6.06(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than the average of the Closing Sale Prices of the Common Stock for each Trading Day in the applicable 10 consecutive Trading Day period, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount
 
25 

 
payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Board of Directors.
 
For the avoidance of doubt: if application of the formula set forth in this Section 6.06(b) would result in an increase to the Conversion Price, no adjustment shall be made pursuant hereto.
 
(c)           (i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other of its assets or property to all or substantially all holders of Common Stock other than (A) dividends or distributions (including subdivisions of Common Stock) and rights, options or warrants that are the subject of Section 6.06(a) or Section 6.06(b), (B) dividends or distributions paid exclusively in cash that are the subject of Section 6.06(d), (C) Spin-Offs that are the subject of Section 6.06(c)(ii) shall apply, and (D) distributions of rights to all or substantially all holders of Common Stock pursuant to the adoption of a shareholder rights plan, then, in each such case the Conversion Price shall be decreased based on the following formula:

CP = CP 0  ×	 	SP 0  - FMV	 	 	
 	 	SP 0	 	 	
 
where

 	CP 0	 	=	 	the Conversion Price in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;	
 	 	 	 	 	 	
 	CP	 	=	 	the Conversion Price in effect immediately after the open of business on the Ex-Dividend Date for such distribution;	
 	 	 	 	 	 	
 	SP 0	 	=	 	the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and	
 	 	 	 	 	 	
 	FMV	 	=	 	the fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of the Common Stock as of the open of business on the Ex-Dividend Date for such distribution.	
 
If the then-fair market value of the portion of the shares of Capital Stock, evidences of indebtedness or other assets or property so distributed applicable to one share of Common Stock is equal to or greater than the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, in lieu of the foregoing adjustment, adequate provisions shall be made so that each Holder of a Security shall have the right to receive on conversion in respect of each Security held by such Holder, in addition to the number of shares of Common Stock to which such Holder is entitled to receive, the amount and kind of securities and assets such Holder would have received had such Holder already owned a number
 
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of shares of Common Stock equal to (x) the Conversion Rate immediately prior to the record date for the distribution of the securities or assets multiplied by (y) the number of Securities, with a principal amount of $1,000 each, such Holder owned.
 
(ii) With respect to an adjustment pursuant to this Section 6.06(c) where there has been a payment of a dividend or other distribution on the Common Stock or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “ Spin-Off ”), the Conversion Price shall be decreased based on the following formula:

CP = CP 0  ×	 	MP 0	 	 	
 	 	FMV + MP 0	 	 	
 
where

 	CP 0	 	=	 	the Conversion Price in effect immediately prior to the open of business on the Ex-Dividend Date for the Spin-Off;	
 	 	 	 	 	 	
 	CP	 	=	 	the Conversion Price in effect immediately after the open of business on the Ex-Dividend Date for the Spin-Off;	
 	 	 	 	 	 	
 	FMV	 	=	 	the average of the Closing Sale Prices of the Capital Stock or similar equity interests distributed to holders of the Common Stock applicable to one share of the Common Stock over the first 10 consecutive Trading Day period commencing on, and including, the Ex-Dividend Date for the Spin-Off (such period, the “ Valuation Period ”); and	
 	 	 	 	 	 	
 	MP 0	 	=	 	the average of the Closing Sale Prices of the Common Stock over the Valuation Period.	
 
The adjustment to the Conversion Price under this Section 6.06(c)(ii) shall be made immediately after the open of business on the day after the last day of the Valuation Period, but shall become effective as of the open of business on the Ex-Dividend Date for the Spin-Off.  If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Conversion Period in respect of any conversion, references within this Section 6.06(c) to 10 Trading Days shall be deemed replaced, for purposes of calculating the affected daily Conversion Prices in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last Trading Day of such Conversion Period.  For purposes of determining the Conversion Price, in respect of any conversion during the 10 Trading Days commencing on the Ex-Dividend Date of any Spin-Off, references in the portion of this Section 6.06(c) related to Spin-Offs to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, but excluding, the Conversion Date for such conversion.
 
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(iii) For purposes of this Section 6.06(c), Section 6.06(a) and Section 6.06(b), any dividend or distribution to which this Section 6.06(c) is applicable that also includes shares of Common Stock, or rights, options or warrants to subscribe for or purchase shares of Common Stock to which Section 6.06(a) or Section 6.06(b) (or both) applies, shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital Stock other than such shares of Common Stock or rights, options or warrants to which this Section 6.06(c) applies (and any Conversion Price adjustment required by this Section 6.06(c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights, options or warrants (and any further Conversion Price adjustment required by Section 6.06(a) and Section 6.06(b) with respect to such dividend or distribution shall then be made), except (A) the Ex-Dividend Date of such dividend or distribution shall be substituted as “the Ex-Dividend Date,” “the Ex-Dividend Date relating to such distribution of such rights, options or warrants” and “the Ex-Dividend Date for such distribution” within the meaning of Section 6.06(a) and Section 6.06(b) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding immediately prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be” within the meaning of Section 6.06(a) or “outstanding immediately prior to the Ex-Dividend Date for such dividend or distribution” within the meaning of Section 6.06(b).
 
For the avoidance of doubt: if application of the formula set forth in this Section 6.06(c) would result in an increase to the Conversion Price, no adjustment shall be made pursuant hereto.
 
If any dividend or distribution that is the subject of this Section 6.06(c) is declared but not paid or made, the Conversion Price shall be readjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
 
(d)          If the Company makes or pays any cash dividend or distribution to all or substantially all holders of its outstanding Common Stock (other than (i) distributions pursuant to Section 6.06(e) and (ii) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company), the applicable Conversion Price shall be decreased based on the following formula:

CP = CP 0  ×	 	SP 0  - C	 	 	
 	 	SP 0	 	 	
 
where

 	CP 0	 	=	 	the Conversion Price in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;	
 	 	 	 	 	 	
 	CP	 	=	 	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;	
 
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 	SP 0	 	=	 	the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and	
 	 	 	 	 	 	
 	C	 	=	 	the amount in cash per share the Company pays or distributes to holders of Common Stock.	
 
If any dividend or distribution that is the subject of this Section 6.06(d) is declared but not paid or made, the Conversion Price shall be readjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
 
If the amount in cash per share that the Company pays or distributes to holders of the Common Stock attributable to one share of Common Stock is equal to or greater than the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution, in lieu of the foregoing adjustment, the Company shall pay to each Holder of Securities, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash such Holder would have received had such Holder already owned a number of shares of Common Stock equal to (x) the Conversion Rate immediately prior to the record date for the dividend or distribution of such cash multiplied by (y) the number of Securities, with a principal amount of $1,000 each, such Holder owned.
 
For the avoidance of doubt, for purposes of this Section 6.06(d), in the event of any reclassification of the Common Stock, as a result of which the Securities become convertible into more than one class of Common Stock, if an adjustment to the Conversion Price is required pursuant to this Section 6.06(d), references in this Section to one share of Common Stock or Closing Sale Prices of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit consisting of the number of shares of each class of Common Stock into which the Securities are then convertible equal to the number of shares of such class issued in respect of one share of Common Stock in such reclassification.  The above provisions of this paragraph shall similarly apply to successive reclassifications.
 
For the avoidance of doubt: if application of the formula set forth in this Section 6.06(d) would result in an increase to the Conversion Price, no adjustment shall be made pursuant hereto.
 
(e)           If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Common Stock and if the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “ Expiration Date ”), the Conversion Price shall be decreased based on the following formula:
 
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CP = CP 0  ×	 	OS 0  x SP	 	 	
 	 	AC + (OS x SP)	 	 	
 
where

 	CP 0	 	=	 	the Conversion Price in effect immediately prior to the open of business on the Trading Day next succeeding the Expiration Date;	
 	 	 	 	 	 	
 	CP	 	=	 	the Conversion Price in effect immediately after the open of business on the Trading Day next succeeding the Expiration Date;	
 	 	 	 	 	 	
 	AC	 	=	 	the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;	
 	 	 	 	 	 	
 	OS 0	 	=	 	the number of shares of Common Stock outstanding immediately prior to the time (the “ Expiration Time ”) such tender or exchange offer expires (prior to giving effect to such tender offer or exchange offer);	
 	 	 	 	 	 	
 	OS	 	=	 	the number of shares of Common Stock outstanding immediately after the Expiration Time (after giving effect to such tender offer or exchange offer); and	
 	 	 	 	 	 	
 	SP	 	=	 	the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.	
 
Such adjustment under this Section 6.06(e) shall become effective at the opening of business on the Trading Day next succeeding the Expiration Date.  If the Trading Day next succeeding the Expiration Date is less than 10 Trading Days prior to, and including, the end of the Conversion Period in respect of any conversion, references within this Section 6.06(e) to 10 Trading Days shall be deemed replaced, for purposes of calculating the affected daily Conversion Prices in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, and including, the last Trading Day of such Conversion Period.  For purposes of determining the Conversion Price, in respect of any conversion during the 10 Trading Days commencing on the Trading Day next succeeding the Expiration Date, references within this Section 6.06(e) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding, the Conversion Date for such conversion.  If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any or all or any portion of such purchases or all such purchases are rescinded, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had been made only in respect of the purchases that had been effected.
 
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For the avoidance of doubt: if application of the formula set forth in this Section 6.06(e) would result in an increase to the Conversion Price, no adjustment shall be made pursuant hereto.
 
(f)             In calculating the Daily VWAP or Closing Sale Price of the Common Stock over a span of multiple days pursuant to any provision of this Indenture, the Company shall make appropriate adjustments to account for any adjustment to the Conversion Price pursuant to Section 6.06 that becomes effective, or any event requiring an adjustment to the Conversion Price the Ex-Dividend Date in respect of which occurs, at any time during the period from which such prices are to be calculated.
 
(g)          If, in respect of any Trading Day within the Conversion Period for a converted Security:
 
(i)                                      the Company elects to satisfy its Conversion Obligation through delivery of a combination of cash and Common Stock, and shares of Common Stock are deliverable to settle the Daily Net Share Settlement Value for a given Trading Day within the Conversion Period applicable to the Securities converted by a Holder;
 
(ii)                                   any event that is the subject of any of clauses (a), (b), (c), (d) or (e) of this Section 6.06 has not resulted in an adjustment to the Conversion Price as of such Trading Day; and
 
(iii)                                the shares of Common Stock the Holder of such Security will receive in respect of such Trading Day are not entitled to participate in the distribution or transaction giving rise to such adjustment event because such shares were not held by such Holder on the record date corresponding to such distribution or transaction or otherwise,
 
then the Company shall adjust the number of shares of Common Stock deliverable with respect to the Daily Settlement Amount for such Trading Day to reflect the relevant distribution or transaction.
 
(h)          If:
 
(i)                                      the Company elects to satisfy its Conversion Obligation solely in shares of Common Stock,
 
(ii)                                   any event that requires an adjustment to the Conversion Price under any of clauses (a), (b), (c), (d) and (e) of this Section 6.06 has not yet resulted in an adjustment to the Conversion Price on the Conversion Date, and
 
(iii)                                the shares of Common Stock the Holder of such Security shall receive on the Settlement Date are not entitled to participate in the distribution or transaction giving rise to such adjustment event because, pursuant to the terms of the second paragraph of Section 6.02, such shares were not held
 
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by such Holder on the record date corresponding to such distribution or transaction or otherwise,
 
then the Company shall adjust the number of shares of Common Stock that it delivers to such Holder in respect of the relevant Trading Day to reflect the relevant distribution or transaction.
 
Section 6.07         No Adjustment.
 
All calculations and other determinations under this Article 6 shall be made by the Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share.  Notwithstanding anything to the contrary contained in the Indenture, no adjustment in the Conversion Price shall be required unless the adjustment would require an increase or decrease of at least 1% in the Conversion Price as last adjusted; provided, however , the Company shall carry forward any adjustments that are less than 1% of the Conversion Price and make such carried forward adjustments (i) when the cumulative net effect of all adjustments not yet made will result in a change of at least 1% of the Conversion Price or (ii) regardless of whether the aggregate adjustment is less than 1%, (A) upon any date upon which the Company gives notice of a Fundamental Change and (B) on each of the Trading Days within any Conversion Period.
 
No adjustment need be made:
 
(a)           upon the issuance of any shares of the Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of the Common Stock under any plan;
 
(b)          upon the issuance of any shares of the Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of, or assumed by, the Company or any of the Company’s Subsidiaries;
 
(c)           upon the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security that is not the subject of clause (b) of this subsection and is outstanding as of the Original Issue Date;
 
(d)          for any change in the par value of the Common Stock; or
 
(e)           for accrued and unpaid interest, if any.
 
Except as set forth in this Article 6, the Company shall not adjust the Conversion Price.  The Company shall not be obligated to adjust the Conversion Price in transactions in which Holders participate without conversion of the Securities in the same manner and at the same time as a holder of the shares of the Common Stock into which such Holder’s Securities are convertible would participate.
 
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The Company shall not take any action that would result in an adjustment without complying with New York Stock Exchange Rule 312, or any similar rule of any other stock exchange on which the Common Stock may be listed, if applicable.
 
To the extent that the Securities become convertible into the right to receive cash, no adjustment need be made thereafter as to such cash.  Interest will not accrue on such cash.
 
Section 6.08         Adjustment for Tax Purposes.
 
The Company shall be entitled to (but is not required to) make such reductions in the Conversion Price, in addition to those required by Section 6.06, as it in its discretion shall determine to be advisable in order to avoid or diminish any tax to holders of Common Stock (or holders of rights to purchase Common Stock) in connection with any stock dividends, subdivisions of shares, distributions of rights to purchase stock or securities or distributions of securities convertible into or exchangeable for stock (or rights to acquire such securities) hereafter made by the Company to its stockholders; provided the Company shall not take any action that would result in an adjustment to the Conversion Price in such a manner as to result in the reduction of the Conversion Price to less than the par value per share of the Common Stock.
 
Section 6.09         Notice of Conversion and Notice of Adjustment.
 
Upon determining that Holders are entitled to convert their Securities in accordance with the provisions described herein, the Company will promptly (i) issue a press release and use its reasonable efforts to post such information on the Company’s website or otherwise publicly disclose this information or (ii) provide written notice to the Holders of the Securities in a manner contemplated by the Indenture, including through the facilities of the Depositary, and (iii) file with the Trustee and the Conversion Agent an Officer’s Certificate advising that the Company has determined that Holders of Securities are entitled to convert such Securities in accordance with the terms of this Indenture, provided that the Company shall not be obligated to deliver any such Officer’s Certificate after the close of business on February 15, 2015.  Prior to the close of business on February 15, 2015, unless and until the Trustee and the Conversion Agent shall receive an Officer’s Certificate advising of such conversion opportunity, the Trustee and the Conversion Agent may conclusively presume without inquiry that Holders are not entitled to convert their Securities.
 
Whenever the Conversion Price is adjusted, the Company shall promptly mail to Holders a notice of the adjustment and file with the Trustee and the Conversion Agent an Officer’s Certificate setting forth the Conversion Price, detailing the calculation of the Conversion Price and briefly stating the facts upon which the adjustment is based.  In addition, the Company shall issue a press release containing such information and make such press release available on its website.
 
Unless and until the Trustee and the Conversion Agent shall receive an Officer’s Certificate setting forth an adjustment of the Conversion Price, the Trustee and the Conversion Agent may conclusively presume without inquiry that the Conversion Price has not been adjusted and that the last Conversion Price of which it has knowledge remains in effect.
 
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Section 6.10         Notice of Certain Transactions.
 
In the event that:
 
(1)                                   the Company takes any action which would require an adjustment in the Conversion Price;
 
(2)                                   the Company consolidates or merges with, or transfers all or substantially all of its property and assets to, another corporation and shareholders of the Company must approve the transaction; or
 
(3)                                   there is a dissolution or liquidation of the Company;
 
the Company shall mail to Holders and file with the Trustee and the Conversion Agent a notice stating the proposed record or effective date, as the case may be.  The Company shall mail the notice as promptly as practicable but in no event less than 10 days prior to such event.  Failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section 6.10.
 
Section 6.11         Stockholder Rights Plans.
 
Each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the related rights under the Shareholder Rights Agreement, dated as of April 11, 2007, between the Company and Mellon Investor Services LLC, as rights agent, as amended, or any other rights plan in effect upon conversion of the Securities, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such rights plan or agreement, as the same may be amended from time to time.  If, however, prior to the time of conversion, the rights provided by such rights plan or agreement have separated from the shares of Common Stock in accordance with the provisions of the applicable rights plan or agreement so that the holders of the Securities would not be entitled to receive any rights in respect of Common Stock, if any, issuable upon conversion of the Securities, the Conversion Price shall be adjusted at the time of separation as if the Company has distributed to all holders of Common Stock, shares of Capital Stock of the Company, evidences of indebtedness or other assets or property as provided in Section 6.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
 
Section 6.12         Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege.
 
If any of the following shall occur, namely:  (i) any reclassification or change of shares of Common Stock issuable upon conversion of the Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination, or any other change for which an adjustment is provided in Section 6.06); (ii) any consolidation, merger or binding share exchange involving the Company; or (iii) any sale, assignment, conveyance, transfer, lease or other disposition to another person of the Company’s property and assets as an entirety or substantially as an entirety, in each case as a
 
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result of which holders of Common Stock shall be entitled to receive cash, securities or other property with respect to or in exchange for such Common Stock (any such event a “ Merger Event ”), then:
 
(a)           the Company, or such successor purchasing Person, as the case may be, shall, as a condition precedent to such Merger Event, execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) providing that Holders shall be entitled thereafter to convert their Securities into the type and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) (the “ Reference Property ”) that a holder of the Common Stock would have owned or been entitled to receive in respect of a number of shares of the Common Stock equal to (x) the Conversion Rate immediately prior to such Merger Event multiplied by (y) the number of Securities, with a principal amount of $1,000 each, such Holder owned; provided that, at and after the effective time of any such Merger Event, any amount otherwise payable in cash upon conversion of the Securities shall continue to be payable as provided in Section 6.05, including the Company’s right to determine the form of consideration as provided therein.  For purposes of this Article 6, if the Common Stock has been replaced by Reference Property as a result of any transaction described in this Section 6.12(a), references to the Common Stock shall refer to such Reference Property.
 
(b)          In the event the Company shall execute a supplemental indenture pursuant to this Section 6.12, the Company shall promptly file with the Trustee (x) an Officer’s Certificate briefly describing the Merger Event, the kind or amount of shares of stock or other securities or property (including cash) that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and stating that all conditions precedent have been complied with and (y) an Opinion of Counsel that all conditions precedent have been complied with.  Any failure to deliver such Officer’s Certificate shall not affect the legality or validity of such supplemental indenture.
 
(c)           With respect to each $1,000 principal amount of Securities surrendered for conversion after the effective date of any such Merger Event in lieu of cash and shares of Common Stock, if any, otherwise provided for hereunder, the Company shall deliver to the converting Holder a number of units of Reference Property (each such unit comprised of the kind and amount of shares of stock, securities or other property or assets (including cash or any combination thereof) that a holder of one share of Common Stock immediately prior to such Merger Event would have owned or been entitled to receive based on the Weighted Average Consideration) equal to (1) the aggregate principal amount of Securities to be converted, divided by $1,000, multiplied by (2) the then-applicable Conversion Rate.
 
(i)                                      The Company will deliver the cash in lieu of fractional units of Reference Property as set forth pursuant to Section 6.03 ( provided that the amount of such cash shall be determined as if references in such Section to “the Closing Sale Price” were instead a reference to “the Closing Sale Price of a unit of Reference Property” composed of the type and amount of shares of stock, securities or other property or assets (including cash or any
 
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combination thereof) that a holder of one share of Common Stock immediately prior to such Merger Event would have owned or been entitled to receive based on the Weighted Average Consideration).
 
(ii)                                   The Daily Settlement Amounts (if applicable) and Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Conversion Period.
 
(iii)                                For purposes of this Section 6.12, the “ Weighted Average Consideration ” means the weighted average of the types and amounts of consideration received by the holders of the Common Stock entitled to receive cash, securities or other property or assets with respect to or in exchange for such Common Stock in any Merger Event who affirmatively make such an election; provided that, if the types and amounts of consideration that holders of the Common Stock would be entitled to receive with respect to or in exchange for such Common Stock is based in part upon any form of stockholder election, the “Weighted Average Consideration” will be deemed to be (A) if holders of the majority of the shares of Common Stock affirmatively make such an election, the weighted average of the types and amounts of consideration received by the holders of the Common Stock that affirmatively make such an election or (B) if the holders of a majority of the shares of Common Stock do not affirmatively make such an election, the types and amount of consideration actually received by such holders.
 
(iv)                               The Company shall notify the holders of the Weighted Average Consideration as soon as practicable after the Weighted Average Consideration is determined.
 
(v)                                  The above provisions of this Section shall similarly apply to successive Merger Events.
 
Promptly following the effective time of any such Merger Event, the Company shall notify the Trustee and the Conversion Agent and issue a press release describing the type or amount of cash, securities, property or other assets that will comprise the Reference Property after any such Merger Event (and shall make the press release available on its website).
 
Section 6.13         Trustee’s Disclaimer.
 
The Trustee and the Conversion Agent shall have no duty to determine whether a Holder is entitled to convert its Securities or if and when an adjustment under this Article 6 should be made, how it should be made or what such adjustment should be, but may accept as conclusive evidence of that fact or the correctness of any such entitlement or adjustment, and shall be protected in relying upon, an Officer’s Certificate, including the Officer’s Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 6.09.  Neither the Trustee nor the Conversion Agent makes any representation as to the validity or value of any shares of Common Stock or of any other securities or assets issued upon
 
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conversion of Securities, and the Trustee and the Conversion Agent shall not be responsible for the Company’s failure to comply with any provisions of this Article 6.
 
The Trustee and the Conversion Agent shall not be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture executed pursuant to Section 6.12, but may accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying upon, the Officer’s Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 6.12.
 
Section 6.14         Voluntary Reduction.
 
The Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at least 20 Business Days and if the reduction is irrevocable during the period, if the Board of Directors determines that such reduction would be in the best interest of the Company or would avoid or diminish income tax to holders of shares of Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or similar event, and the Company provides at least 15 days’ prior notice of any reduction in the Conversion Price; provided , however , that in no event may the Company reduce the Conversion Price to be less than the par value of a share of Common Stock.
 
Section 6.15         Calculations in Respect of the Securities.
 
The Company shall be responsible for making the calculations called for hereunder and under the Securities.  These calculations include, but are not limited to, determinations of the Closing Sale Price of the Common Stock, adjustments to the Conversion Price and to the Conversion Rate, the amount of Conversion Consideration deliverable in respect of any conversion and any accrued interest payable on the Securities.  The Company shall make these calculations in good faith and, absent manifest error, the calculations will be final and binding on Holders of the Securities.  The Company shall provide to each of the Trustee, the Paying Agent and the Conversion Agent a schedule of its calculations, and the Trustee, the Paying Agent and the Conversion Agent are entitled to rely conclusively upon the accuracy of such calculations without independent verification.  The Trustee shall forward the Company’s calculations to any Holder of the Securities upon the request of such Holder.
 
ARTICLE 7
 
COVENANTS
 
Section 7.01         Reports.   Section 4.03 of the Base Indenture is hereby amended in its entirety with respect to the Securities to state:
 
“ So long as any Securities are outstanding, the Company shall (i) file with the SEC within the time periods prescribed by its rules and regulations and (ii) furnish to the Trustee and the Holders of the Securities within 15 days after the date on which each such filing is made, all quarterly and annual financial information required to be contained in Forms 10-Q and 10-K and, with respect to the annual consolidated financial statements only, a report thereon by the
 
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Company’s independent auditors.  The Company also shall comply with the other provisions of 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).  The Company shall not be required to file any report or other information with the SEC if the SEC does not permit such filing, although such reports shall be furnished to the Trustee.  Documents filed by the Company with the SEC via the SEC’s EDGAR system (or any successor thereto) will be deemed furnished to the Trustee and the Holders of the Securities as of the time such documents are filed via EDGAR (or such successor).”
 
Section 7.02         Compliance Certificate.  Section 4.04 of the Base Indenture is hereby amended with respect to the Securities to add the following paragraph after the first paragraph thereof:
 
“In addition, the Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any events which constitute an Event of Default, or which, with the passage of time or the giving of notice or both would constitute an Event of Default, under clause (6), (7), (8) or (9) of Section 6.01 of the Indenture, the status of such Default or Event of Default and what actions the Company is taking or proposes to take in respect thereof.”
 
Section 7.03         Payment of Additional Tax Amounts.
 
All payments of interest and principal (including the payment of any amount upon Stated Maturity or that constitutes all or part of any Conversion Obligation) by the Company under the Securities shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Marshall Islands or any other jurisdiction in which the Company is organized or maintains an executive office or place of management or any political sub-division or taxing authority thereof or therein or any other jurisdiction from or through which the Company makes payment on any Security (each, a “ Relevant Jurisdiction ”).  In that event, the Company, as applicable, will pay such additional amounts as may be necessary in order that the net amounts received by a Holder after such withholding or deduction shall equal the amount of interest and principal (including the payment of any amount upon Stated Maturity or that constitutes all or part of any Conversion Obligation) which would have been receivable in respect of the Securities in the absence of such withholding or deduction (“ Additional Tax Amounts ”), except that no such Additional Tax Amounts shall apply to:
 
(a)           any tax, assessment or other governmental charge that would not have been so imposed but for the existence of any present or former connection between the Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of the Holder, if the Holder is an estate, a trust, a partnership, a limited liability company or a corporation) and a Relevant Jurisdiction or its possessions, including, without limitation, the Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident of a
 
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Relevant Jurisdiction or its possessions or being or having been engaged in a trade or business or present in a Relevant Jurisdiction or its possessions or having, or having had, a permanent establishment in a Relevant Jurisdiction or its possessions;
 
(b)          any estate, inheritance, gift, sales, transfer, capital gains, excise or personal property tax or any similar tax, assessment or governmental charge;
 
(c)           any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments on or in respect of any Security;
 
(d)          any tax, assessment or other governmental charge that would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the Holder (or a fiduciary, settler, beneficiary, member, or interestholder of the Holder, if the Holder is an estate, a trust, a partnership, or a limited liability company) or beneficial owner of that Security, if compliance therewith is required by a Relevant Jurisdiction or taxing authority thereof or therein as a precondition to relief or exemption from the tax, assessment or other governmental charge;
 
(e)           any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of, or interest on any Security, if payment can be made without withholding by at least one other Paying Agent; or
 
(f)             in the case of any combination of the items listed above.
 
In addition, no Additional Tax Amounts shall be payable with respect to any payment on a Security to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the laws of a Relevant Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interestholder in that limited liability company or a beneficial owner who would not have been entitled to the Additional Tax Amounts had that beneficiary, settlor, member, interestholder, or beneficial owner been the Holder.
 
Additional Tax Amounts, for all purposes of this Indenture, shall constitute and be deemed to be part of the principal, interest, payments in respect of any Conversion Obligation or other payment to which they relate and all references in this Indenture to principal, interest, payments in respect of any Conversion Obligation or other payments in respect of which Additional Tax Amounts are payable shall be deemed to also include such Additional Tax Amounts.
 
The Company shall deliver to the Trustee, at least 30 days prior to the date of any payment under or with respect to the Securities in respect of which it becomes aware that it will be obligated to pay Additional Tax Amounts, an Officer’s Certificate stating the fact that Additional Tax Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificates shall also set forth any other information reasonably necessary to enable the Trustee to pay Additional Tax Amounts to Holders on the relevant payment date.  The
 
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Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
 
ARTICLE 8
 
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
 
Section 8.01         Issuer May Consolidate, etc., on Certain Terms.
 
Article 5 of the Base Indenture is hereby amended in its entirety with respect to the Securities to state:
 
The Company shall not:  (1) consolidate with, enter into a binding share exchange with, or merge with or into, another Person, or (2) sell, assign, convey, transfer, lease or otherwise dispose of the properties and assets of the Company substantially as an entirety to another Person, unless:
 
(a)           either: (i) the Company is the surviving Person; or (ii) the Person surviving any such consolidation, share exchange or merger, if other than the Company, or to which such sale, assignment, transfer, conveyance, lease or other disposition shall have been made (the “ Successor Person ”) is a corporation organized or existing under the laws of the Republic of the Marshall Islands, the United States of America, any state of the United States or the District of Columbia, any member state of the European Union, Liberia, Malta, Bermuda, the Bahamas, Panama, the British Virgin Islands, the Cayman Islands, the Isle of Man, Norway, Hong Kong, Taiwan, Antigua and Barbuda, Barbados, Belize, Cyprus, Gibraltar (UK), Jamaica, Netherlands Antilles, St. Vincent, Singapore or any other country recognized by the United States of America with an investment grade sovereign debt rating from either Standard & Poor’s Ratings Services or Moody’s Investors Service, Inc.;
 
(b)          the Successor Person assumes all the obligations of the Company under the Securities and this Indenture pursuant to a supplemental indenture, executed and delivered to the Trustee;
 
(c)           immediately after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing; and
 
(d)          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 8.01(ii) complies with this Section 8.01 and that all conditions precedent herein provided for relating to such transaction have been complied with.
 
Section 8.02         Successor Person Substituted.
 
Upon any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the Successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, conveyance, lease or
 
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other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, conveyance, lease or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the Successor Person 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 and upon satisfaction of the requirements of Section 8.01, except in the case of a lease or other conditional or temporally limited assignment, conveyance or disposition, the predecessor Company shall be released from its liabilities as obligor and maker of the Securities and from its obligations under this Indenture.
 
ARTICLE 9
 
DEFAULT AND REMEDIES
 
Section 9.01         Events of Default
 
Section 6.01 of the Base Indenture is hereby amended in its entirety with respect to the Securities to state:
 
“‘ Event of Default ,’ wherever used herein with respect to the Securities, means any one of the following events:
 
(1)                                   the Company fails to pay the principal of any Security when due;
 
(2)                                   the Company fails to pay the cash and deliver the shares of Common Stock, if any, representing the Conversion Obligation upon conversion of any Security (including any Additional Shares, if applicable) within the time period required by the provisions of the Indenture;
 
(3)                                   the Company fails to pay any interest amounts on any Security when it becomes due and payable, and continuance of such failure to pay for a period of 30 days;
 
(4)                                   the Company fails to perform any of its other covenants or agreements contained in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses (1), (2) or (3) of this Section 6.01), which failure continues uncured for a period of 60 days after written notice given by the Trustee or Holders of not less than 25% in principal amount of the outstanding Securities;
 
(5)                                   the Company fails to provide a Fundamental Change Purchase Notice when required by Section 4.01 or the Company fails to pay the Fundamental Change Purchase Price of any Security when due;
 
(6)                                   any indebtedness for money borrowed by, or any other payment obligation of, the Company or any of its Significant Subsidiaries in an outstanding principal amount, individually or in the aggregate, in excess of $50 million is not paid at final maturity (or when otherwise due) or is accelerated and such indebtedness is not discharged (or such default in payment or acceleration is not cured or rescinded) within 30 days after written notice as provided
 
41 

 
herein; provided that a payment obligation (other than indebtedness for borrowed money) shall not be deemed to have matured, come due, or been accelerated to the extent that it is being disputed by the relevant obligor or obligors in good faith ;
 
(7)                                   the Company or any of its Significant Subsidiaries, 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, or
 
(d)                                  makes a general assignment for the benefit of its creditors;
 
(8)                                   a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
 
(a)                                   is for relief against the Company or any of its Significant Subsidiaries in an involuntary case ,
 
(b)                                  appoints a Custodian of the Company or any of its Significant Subsidiaries for all or substantially all of the property of the Company or any such Significant Subsidiary , or
 
(c)                                   orders the liquidation of the Company or any of its Significant Subsidiaries, and the order or decree remains unstayed and in effect for 60 days ; or
 
(9)                                   the Company fails or any of its Significant Subsidiaries fails to pay one or more final and non-appealable judgments entered by a court or courts of competent jurisdiction, other than judgments in respect of any vessel in respect of matters occurring prior to the Company’s or such Subsidiary’s ownership of such vessel, the aggregate uninsured or unbonded portion of which is in excess of $50 million, if the judgments are not paid, discharged or stayed within 60 days after the Company or such Subsidiary receives actual notice thereof.
 
Section 9.02         Additional Interest Sole Remedy for Certain Events of Default.
 
Notwithstanding any provision of Article 6 of the Base Indenture (as amended by this Supplemental Indenture), at the election of the Company in its sole discretion, the sole remedy under this Indenture for an Event of Default relating to the failure to comply with Section 4.03 of the Base Indenture (as amended hereby), and for any failure to comply with the requirements of Section 314(a)(1) of the TIA, shall consist, for the 180 days after the occurrence of such an Event of Default, exclusively of the right to receive additional interest on the Securities at a rate equal to 0.50% per annum of the aggregate principal amount of the Securities
 
42 

 
then outstanding up to, but not including, the 181st day thereafter (or, if applicable, the earlier date on which the Event of Default relating to Section 4.03 of the Base Indenture (as amended hereby) is cured or waived).  Any such additional interest will be payable in the same manner and on the same dates as the stated interest payable on the Securities.  If the Event of Default is continuing on the 181st day after an Event of Default relating to a failure to comply with Section 4.03 of the Base Indenture (as amended hereby), the Securities will be subject to acceleration as provided in Section 6.02 of the Base Indenture.  The provisions of this Section 9.02 will not affect the rights of Holders in the event of the occurrence of any other Events of Default.
 
In order to elect to pay additional interest as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with Section 4.03 of the Base Indenture (as amended hereby) in accordance with the immediately preceding paragraph, the Company shall notify all Holders and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default otherwise would occur.  Upon a failure by the Company to timely give such notice or pay additional interest, the Securities will be immediately subject to acceleration as otherwise provided in Section 6.02 of the Base Indenture.
 
Section 9.03         Waiver of Default and Events of Default.
 
In addition to Section 6.04 of the Base Indenture, consent of each Holder is required to waive any Default or Event of Default resulting from the failure by the Company to:
 
(a)           pay the principal of or interest amounts on any Security when due;
 
(b)          deliver cash, shares of Common Stock, or a combination thereof, as the case may be, upon a conversion of the Securities; or
 
(c)           comply with any provisions in this Indenture that would require the consent of the Holders of each outstanding Security affected.
 
Section 9.04         Limitations on Suits.
 
Section 6.06 is hereby amended in its entirety with respect to the Securities to state:
 
“A Holder of Securities may pursue a remedy with respect to this Indenture or the Securities only if:
 
(a)           such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities;
 
(b)          the Holders of not less than 25% in principal amount of the outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
 
43 

 
(c)           such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
 
(d)          the Trustee has failed to institute any such proceeding within 60 days after its receipt of such notice, request and offer of indemnity; and
 
(e)           the Trustee has not received for Holders of a majority in aggregate principal amount of the Securities then outstanding a direction inconsistent with such request within 60 days after such notice, request and offer of indemnity.
 
The limitations on suits set forth in clauses (a) through (e) of this Section 6.06 shall not apply to actions instituted by a Holder for the enforcement of payment of the principal of or interest amounts on any Security on or after the applicable due date or the right to convert any Security in accordance with the Indenture.”
 
Section 9.05         Unconditional Right of Holders to Receive Conversion Obligation.
 
In addition to the unconditional rights set forth in Section 6.07 of the Base Indenture, and notwithstanding any other provision in the Indenture, the Holder of any Security shall have the right, which is absolute and unconditional and may not be impaired or affected without the consent of the Holder, to receive the Conversion Obligation upon conversion of their Securities in accordance with the terms of the Indenture and to bring suit for the enforcement of their right to convert.
 
Section 9.06         Duties of Trustee.
 
Section 7.01(e) of the Base Indenture is hereby amended in its entirety with respect to the Securities to state:
 
“(e)                             No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise 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 the Holders, unless any such Holders shall have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense.”
 
ARTICLE 10
 
SATISFACTION AND DISCHARGE
 
Articles 8 of the Base Indenture shall not apply to the Securities.  Section 10.01 of the Base Indenture is hereby amended in its entirety with respect to the Securities to state:
 
“Section 10.01       Satisfaction and Discharge.
 
This Indenture will be discharged and will cease to be of further effect as to the Securities, when:
 
(a)           either:
 
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(i)                                      all Securities that have been authenticated (except lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or
 
(ii)                                   all Securities that have not been delivered to the Trustee for cancellation have become due and payable 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 Securities, cash in U.S. dollars and shares of the Common Stock, if any (solely to satisfy any share delivery obligation in respect of the Conversion Obligation for any Securities that have been converted), in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Securities not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or the applicable Conversion Obligation;
 
(b)          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 is a party or by which the Company is bound;
 
(c)           the Company has paid or caused to be paid all sums payable by it under this Indenture; and
 
(d)          the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money and shares of Common Stock, if any (solely to satisfy any share delivery obligation in respect of the Conversion Obligation for any Securities that have been converted) toward the payment of the Securities at maturity or the settlement date in respect of any converted Securities, 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.
 
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07 and the lien provided for therein shall survive.”
 
ARTICLE 11
 
MISCELLANEOUS PROVISIONS
 
Section 11.01             Scope of Supplemental Indenture.
 
The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall only be applicable with respect to, and govern the terms of, the
 
45 

 
Securities and shall not apply to any other Series of Notes that may be issued by the Company under the Base Indenture.
 
Section 11.02             Adoption, Ratification and Confirmation.
 
The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.  The provisions of this Supplemental Indenture shall, subject to the terms hereof, supersede the Base Indenture to the extent the Base Indenture is inconsistent herewith.
 
Section 11.03             New York Law to Govern.
 
For the avoidance of doubt, Section 11.10 of the Base Indenture (Governing Law) applies to the Indenture, which includes this Supplemental Indenture and the Base Indenture.
 
Section 11.04             Notices.
 
Notices may be provided to the Conversion Agent in the same manner and at the same address as the Trustee as specified in Section 11.02 of the Base Indenture.
 
Section 11.05             Counterparts.
 
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
 
Section 11.06             Trustee’s Disclaimer.
 
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Supplemental Indenture and it shall not be responsible for any statement or recital herein other than its certificate of authentication.
 
ARTICLE 12
 
SUPPLEMENTAL INDENTURES
 
Section 12.01             Without Consent of Holders.
 
Any amendment or supplement made solely to conform the provisions of the Indenture and the Securities to the description of the Indenture and the Securities contained in the Prospectus shall be deemed not to adversely affect the legal rights of any Holder, including for purposes of Section 9.01(4) of the Base Indenture.
 
46 

 
Section 12.02             With Consent of Holders.
 
Section 9.02(a) through (g) of the Base Indenture is hereby amended in its entirety with respect to the Securities to state:
 
“(a)                             change the Stated Maturity of the principal of, or any interest amounts on, the Securities;
 
(b)                                  reduce the principal amount of or interest amounts on the Securities;
 
(c)                                   reduce the amount of principal payable upon acceleration of the maturity of the Securities;
 
(d)                                  change the currency of payment of principal of or interest amounts on the Securities or change any Security’s place of payment, other than that stated in the Securities;
 
(e)                                   impair the right of any Holder to receive payment of principal of and interest on such Holder’s Securities on or after the due dates therefor or to institute suit for the enforcement of any payment on, or with respect to, the Securities;
 
(f)                                     modify the provisions with respect to the purchase right of Holders pursuant to Article 4 upon a Fundamental Change in a manner adverse to Holders;
 
(g)                                  change the ranking of the Securities;
 
(h)                                  a dversely affect the right of Holders to convert the Securities; or
 
(i)                                      modify provisions with respect to modification, amendment or waiver (including waiver of Events of Default), except to increase the percentage required for modification, amendment or waiver or to provide for consent of each affected Holder of Securities.”
 
ARTICLE 13

SINKING FUND
 
Section 13.01             No Sinking Fund.
 
There is no sinking fund for the Securities.  Article 12 of the Base Indenture shall not apply to the Securities.
 
[ Remainder of this page intentionally left blank ]
 
47 

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

 	GENCO SHIPPING & TRADING LIMITED	

 	By	/s/ John C. Wobensmith	
 	 	Name: John C. Wobensmith	
 	 	Title: Chief Financial Officer	

 	THE BANK OF NEW YORK MELLON, as Trustee, Registrar, Paying Agent and Conversion Agent	

 	By	/s/ Justin Huff	
 	 	Name: Justin Huff	
 	 	Title: Senior Associate	

 
EXHIBIT A
 
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO GENCO SHIPPING & TRADING LIMITED (THE “COMPANY”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.  TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.](1)

(1) Include for Global Security.
 
A-1 

 
GENCO SHIPPING & TRADING LIMITED

CUSIP: 36869M AA3	No.	
 
5.00% CONVERTIBLE SENIOR NOTES DUE AUGUST 15, 2015
 
Genco Shipping & Trading Limited, a Company organized in the Marshall Islands (the “ Company, ” which term shall include any successor corporation under the Indenture referred to on the reverse hereof), promises to pay to [Cede & Co.](2), or registered assigns, the principal sum of                       DOLLARS ($                  ) on August 15, 2015 or such greater or lesser amount as is indicated on the Schedule of Increases / Decreases of Securities on the other side of this Security, to pay interest hereon at of 5.00% per annum, payable semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, the immediately following Business Day, commencing February 15, 2011 and to pay Additional Tax Amounts hereon as set forth in Section 7.03 of the Supplemental Indenture referred to herein.
 
This Security is convertible as specified on the other side of this Security. Additional provisions of this Security are set forth on the other side of this Security.
 
[ Signature Page Follows ]

(2) Include for Global Security.
 
A-2 

 
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed on the date written below.

 	GENCO SHIPPING & TRADING LIMITED	

 	By:	 	
 	 	Name:	
 	 	Title:	

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
 
This is one of the Notes of the Series designated therein referred to in the within-mentioned Indenture.

 	THE BANK OF NEW YORK MELLON,	
 	as Trustee	

 	By:	 	
 	 	Authorized Signatory	

Dated:	 	
 
A-3 

 
GENCO SHIPPING & TRADING LIMITED
 
5.00% CONVERTIBLE SENIOR NOTES DUE AUGUST 15, 2015
 
1.                                        INTEREST AMOUNTS; ADDITIONAL TAX AMOUNTS
 
Genco Shipping & Trading Limited, a company organized in the Marshall Islands (the “ Company ,” which term shall include any successor corporation under the Indenture hereinafter referred to), will pay interest at a rate of 5.00% per annum, on the principal amount of this Security payable as provided in the Indenture, together with any additional interest required to be paid under Section 9.02 of the Supplemental Indenture.
 
Additional Tax Amounts payable pursuant to Section 7.03 of the Supplemental Indenture, for all purposes of this Security, shall constitute and be deemed to be part of the principal, interest, payments in respect of any Conversion Obligation or other payment to which they relate and all references in this Security to principal, interest, payments in respect of any Conversion Obligation or other payments in respect of which Additional Tax Amounts are payable shall be deemed to also include such Additional Tax Amounts.
 
2.                                        METHOD OF PAYMENT
 
The Company shall pay any interest on this Security to the Person who is the Holder of this Security at the close of business on February 1 or August 1, as the case may be, next preceding the related interest payment date. The Holder must surrender this Security to a Paying Agent to collect payment of principal.  Interest on the Security will be paid at a rate of
5.00% per annum, payable semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, the immediately following Business Day, commencing February 15, 2011.  Interest is computed on the basis of a 360-day year comprised of twelve 30-day months.  In the event of the maturity, conversion or purchase of the Security by the Company at the option of the Holder, interest shall cease to accrue on the Security.  However, the Company will pay interest on the maturity date to a Holder of record of the Security on the record date immediately preceding the stated maturity date regardless of whether such Holder converts the Security.
 
The Company shall make all payments in respect of a Global Security registered in the name of the Depositary or its nominee to the Depositary or its nominee, as the case may be, by wire transfer of immediately available funds to the account of the Depositary or its nominee.  The Company shall make all payments in respect of a certificated Security (including principal and interest) in U.S. dollars at the office of the Trustee.  At the Company’s option, the Company may make such payments by mailing a check to the registered address of each Holder thereof as such address shall appear on the register or, if requested by a Holder of more than $5,000,000 in aggregate principal amount of Securities, by wire transfer of immediately available funds to the account in the United States specified by such Holder.
 
A-4 

 
3.                                        PAYING AGENT, REGISTRAR AND CONVERSION AGENT
 
Initially, the Trustee will act as Paying Agent, Registrar and Conversion Agent. The Company may appoint and change any Paying Agent, Conversion Agent or Registrar without notice, other than notice to the Trustee; provided that the Company will maintain at least one Paying Agent in the United States of America.  The Company or any of its Subsidiaries may, subject to certain limitations set forth in the Indenture, act as Paying Agent or Registrar.
 
4.                                        INDENTURE, LIMITATIONS
 
This instrument is one of a duly authorized issue of a Series of Notes of the Company designated as its 5.00% Convertible Senior Notes due August 15, 2015 (the “ Securities ”), issued under an Indenture, dated as of July 27, 2010 (together with the supplemental indenture dated as of July 27, 2010 (the “ Supplemental Indenture ”) and any other supplemental indentures thereto, the “ Indenture ”), between the Company and the Trustee. The terms of this Security include those stated in the Indenture and those required by or made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. This Security is subject to all such terms, and the Holder of this Security is referred to the Indenture and said Act for a statement of them, including the respective rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities.
 
The Securities are senior unsecured obligations of the Company limited, except as set forth in the Indenture, to up to $125,000,000 aggregate principal amount.
 
5.                                        PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE
 
At the option of the Holder and subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase all or any part specified by the Holder (so long as the principal amount of such part is $1,000 or an integral multiple of $1,000 in excess thereof) of the Securities held by such Holder on a date, determined by the Company in its sole discretion, that is not less than 20 Business Days and not more than 30 Business Days after the occurrence of a Fundamental Change, at a purchase price equal to 100% of the principal amount thereof, together with any accrued interest up to, but excluding, the Fundamental Change Purchase Date, unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of the Securities as of the preceding Record Date and the Fundamental Change Purchase Price payable to any Holder surrendering such Holder’s Security for purchase pursuant to Article 4 of the Supplemental Indenture shall be equal to the principal amount of Securities subject to purchase and will not include any accrued and unpaid interest.  The Fundamental Change Purchase Price shall be payable in cash. The Holder shall have the right to withdraw any Fundamental Change Purchase Notice (in whole or in a portion thereof that is $1,000 or an integral multiple of $1,000 in excess thereof) at any time prior to 5:00 p.m., New York City time, on the second Scheduled Trading Day immediately preceding the Fundamental Change Purchase Date by delivering a written notice of withdrawal to the Paying Agent in accordance with the terms of the Indenture.
 
A-5 

 
6.                                        CONVERSION
 
A Holder of a Security may convert the principal amount of such Security (or any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof) into cash, shares of Common Stock, or a combination thereof, at the Company’s election, (i) at any time prior to the close of business on February 15, 2015, subject to the conditions set forth in Section 6.01 of the Supplemental Indenture or (ii) at any time after February 15, 2015 and until the close of business on the second Scheduled Trading Day immediately prior to the Final Maturity Date; provided, however, that, if the Security is subject to purchase upon a Fundamental Change, the conversion right will terminate at the close of business on the second Scheduled Trading Day immediately preceding the Fundamental Change Purchase Date for such Security or such earlier date as the Holder presents such Security for purchase (unless the Company shall default in making the Fundamental Change Purchase Price when due, in which case the conversion right shall terminate at the close of business on the date such default is cured and such Security is purchased).
 
The initial Conversion Price is $19.60 per share of Common Stock, subject to adjustment under certain circumstances as provided in the Indenture. No fractional shares will be issued upon conversion; in lieu thereof, the Company will pay cash in an amount determined by multiplying the Daily VWAP of a full share of Common Stock on the last Trading Day of such Conversion Period by the fractional amount and rounding the product to the nearest whole cent.  Whether fractional shares are issuable upon a conversion will be determined on the basis of the total number of Securities that the Holder is then converting into cash and Common Stock, if any, and the aggregate number of shares, if any, of Common Stock issuable upon such conversion.
 
To convert a Security, a Holder must (a) complete and manually sign the conversion notice set forth below and deliver such notice to a Conversion Agent, (b) surrender the Security to a Conversion Agent, (c) furnish appropriate endorsements and transfer documents if required by a Registrar or a Conversion Agent and (d) pay any transfer or similar tax, if required. A Holder may convert a portion of a Security equal to $1,000 or any integral multiple thereof.  In the case of a Security held by the Depositary, such conversion shall be done in accordance with the applicable rules and procedures of the Depositary.
 
A Security in respect of which a Holder had delivered a Fundamental Change Purchase Notice exercising the option of such Holder to require the Company to purchase such Security may be converted only if the Fundamental Change Purchase Notice is withdrawn in accordance with the terms of the Indenture.
 
7.                                        DENOMINATIONS, TRANSFER, EXCHANGE
 
The Securities are in registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes or other governmental charges that may be imposed in relation thereto by law or permitted by the Indenture.
 
A-6 

 
8.                                        PERSONS DEEMED OWNERS
 
The Holder of a Security may be treated as the owner of it for all purposes.
 
9.                                        UNCLAIMED MONEY
 
If money for the payment of principal, or interest, if any, remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its written request, subject to applicable unclaimed property law. After that, Holders entitled to money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person.
 
10.                                  AMENDMENT, SUPPLEMENT AND WAIVER
 
Subject to certain exceptions set forth in the Indenture, the Securities and the Indenture may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Securities then outstanding, and an existing Default or Event of Default with respect to the Securities and its consequence or compliance with any provision of the Securities or the Indenture may be waived in a particular instance with the consent of the Holders of a majority in aggregate principal amount of the Securities then outstanding. Without the consent of or notice to any Holder, the Company and the Trustee may amend or supplement the Indenture or the Securities to, among other things, cure any ambiguity, defect or inconsistency or make any change that does not adversely affect the legal rights of any Holder.
 
11.                                  CALCULATIONS IN RESPECT OF SECURITIES
 
The Company shall be responsible for making all calculations called for under the Indenture and the Securities.  These calculations include, but are not limited to, determinations of the Closing Sale Price of the Common Stock, adjustments to the Conversion Price and to the Conversion Rate, the amount of Conversion Consideration deliverable in respect of any conversion and any accrued interest payable on the Securities.  The Company shall make these calculations in good faith and, absent manifest error, the calculations will be final and binding on Holders of the Securities.  The Company shall provide to each of the Trustee, the Paying Agent and the Conversion Agent a schedule of its calculations, and the Trustee, the Paying Agent and the Conversion Agent are entitled to rely conclusively upon the accuracy of such calculations without independent verification.  The Trustee will forward the Company’s calculations to any Holder of the Securities upon the request of such Holder.
 
12.                                  SUCCESSOR ENTITY
 
When a Successor Person assumes all the obligations of its predecessor under the Securities and the Indenture in accordance with the terms and conditions of the Indenture, the predecessor corporation (except in certain circumstances specified in the Indenture) shall be released from those obligations.
 
A-7 

 
13.                                  DEFAULTS AND REMEDIES
 
Under the Indenture, an “Event of Default” with respect to Securities shall occur if:
 
(1)                                   the Company fails to pay the principal of any Security when due;
 
(2)                                   the Company fails to pay the cash and deliver the shares of Common Stock, if any, representing the Conversion Obligation upon conversion of any Security (including any Additional Shares, if applicable) within the time period required by the provisions of this Indenture;
 
(3)                                   the Company fails to pay any interest amounts on any Security when it becomes due and payable, and continuance of such failure to pay for a period of 30 days;
 
(4)                                   the Company fails to perform any of its other covenants or agreements contained in the Indenture (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses (1), (2) or (3) of this Section 13), which failure continues uncured for a period of 60 days after written notice given by the Trustee or Holders of not less than 25% in principal amount of the outstanding Securities;
 
(5)                                   the Company fails to provide a Fundamental Change Purchase Notice when required by Section 4.01 of the Supplemental Indenture or the Company fails to pay the Fundamental Change Purchase Price of any Security when due;
 
(6)                                   any indebtedness for money borrowed by, or any other payment obligation of, the Company or any of its Significant Subsidiaries in an outstanding principal amount, individually or in the aggregate, in excess of $50 million is not paid at final maturity (or when otherwise due) or is accelerated and such indebtedness is not discharged (or such default in payment or acceleration is not cured or rescinded) within 30 days after written notice as provided herein; provided that a payment obligation (other than indebtedness for borrowed money) shall not be deemed to have matured, come due, or been accelerated to the extent that it is being disputed by the relevant obligor or obligors in good faith ;
 
(7)                                   the Company or any of its Significant Subsidiaries, 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, or
 
(d)                                  makes a general assignment for the benefit of its creditors;
 
(8)                                   a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
 
A-8 

 
(a)           is for relief against the Company or any of its Significant Subsidiaries in an involuntary case ,
 
(b)           appoints a Custodian of the Company or any of its Significant Subsidiaries for all or substantially all of the property of the Company or any such Significant Subsidiary , or
 
(c)           orders the liquidation of the Company or any of its Significant Subsidiaries, and the order or decree remains unstayed and in effect for 60 days ; or
 
(9)           the Company fails or any of its Significant Subsidiaries fails to pay one or more final and non-appealable judgments entered by a court or courts of competent jurisdiction, other than judgments in respect of any vessel in respect of matters occurring prior to the Company’s or such Subsidiary’s ownership of such vessel, the aggregate uninsured or unbonded portion of which is in excess of $50 million, if the judgments are not paid, discharged or stayed within 60 days after the Company or such Subsidiary receives actual notice thereof.
 
If an Event of Default with respect to the Securities at the time outstanding occurs and is continuing (other than an Event of Default specified in clause (7) or (8) above), then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities may declare the principal amount of and accrued and unpaid interest, if any, on all of the Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount and accrued and unpaid interest , if any, shall become immediately due and payable.  If an Event of Default specified in clause (7) or (8) above shall occur, the principal amount of and accrued and unpaid interest, if any, on all outstanding Securities 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.
 
Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity or security reasonably satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or any interest) if it determines that withholding notice is in their interests. The Company is required to file periodic reports with the Trustee as to the absence of Default or Event of Default.
 
Under the terms of the Indenture, at the election of the Company in its sole discretion, the sole remedy for an Event of Default relating to the failure to comply with Section 4.03 of the Base Indenture (as amended by the Supplemental Indenture), and for any failure to comply with the requirements of Section 314(a)(1) of the TIA, shall consist, for the 180 days after the occurrence of such an Event of Default, exclusively of the right to receive additional interest on the Securities at a rate equal to 0.50% per annum of the aggregate principal amount of the Securities then outstanding up to, but not including, the 181st day thereafter (or, if applicable, the earlier date on which the Event of Default relating to the reporting obligations is
 
A-9 

 
cured or waived).  Any such additional interest will be paid and calculated in the manner set forth in the Indenture.
 
14.           TRUSTEE DEALINGS WITH THE COMPANY
 
The Bank of New York Mellon, the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from and perform services for the Company or an Affiliate of the Company and may otherwise deal with the Company or an Affiliate of the Company, as if it were not the Trustee.
 
15.           NO RECOURSE AGAINST OTHERS
 
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 this Security, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting this Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance of this Security. The waiver may not be effective to waive liabilities under the federal securities laws.
 
16.           AUTHENTICATION
 
This Security shall not be valid until the Trustee or an authenticating agent manually signs the certificate of authentication on the other side of this Security.
 
17.           ABBREVIATIONS AND DEFINITIONS
 
Customary abbreviations may be used in the name of the Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
 
All terms defined in the Indenture and used in this Security but not specifically defined herein are used herein as so defined.
 
18.           INDENTURE TO CONTROL; GOVERNING LAW
 
In the case of any conflict between the provisions of this Security and the Indenture, the provisions of the Indenture shall control. The internal laws of the State of New York shall govern and be used to construe this Security 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.
 
The Company will furnish to any Holder, upon written request and without charge, a copy of the Indenture. Requests may be made to the address of the Company set forth in Section 11.02 of the Base Indenture.
 
A-10 

 
ASSIGNMENT FORM
 
To assign this Security, fill in the form below:
 
I or we assign and transfer this Security to

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

 	 	

 	 	

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

 	agent to transfer this Security on the books of the Company. The agent may substitute another to act for him or her.	

 	 	 	
 	 	Your Signature:	
Date:	 	 	 	
 	 	 	 	
 	 	(Sign exactly as your name appears on the other side of this Security)	

 	*Signature guaranteed by:	 	 	

By:	 	 	 	

 

 	* The signature must be guaranteed by an institution that is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee.	
 
A-11 

 
CONVERSION NOTICE

 	To convert this Security into Common Stock of the Company, check the box: o	
 	 	
 	To convert only part of this Security, state the principal amount to be converted (must be $1,000 or a integral multiple of $1,000): $                    .	
 	 	
 	If you want the stock certificate made out in another person’s name, fill in the form below:	

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

 	 	

 	 	

 	(Print or type assignee’s name, address and zip code)	
 	 	 	
 	 	Your Signature:	
Date:	 	 	 	
 	 	 	 	
 	 	(Sign exactly as your name appears on the other side of this Security)	

 	*Signature guaranteed by:	 	 	

By:	 	 	 	

 

 	* The signature must be guaranteed by an institution that is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee.	
 
A-12 

 
OPTION TO ELECT REPURCHASE UPON A FUNDAMENTAL CHANGE
 
To: Genco Shipping & Trading Limited
 
The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Genco Shipping & Trading Limited (the “ Company ”) as to the occurrence of a Fundamental Change with respect to the Company and requests and instructs the Company to redeem the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Security at a purchase price equal to the Fundamental Change Purchase Price, payable in Cash.

Dated:	 	 	 	

 	 	 	 	
 	 	 	Signature(s) must be guaranteed by a qualified guarantor institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.	

 	 	 	 	
 	 	 	Signature Guaranty	
 	 	 	 	
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):	 	 	

NOTICE: The signature to the foregoing Election must correspond to the Name as written upon the face of this Security in every particular, without alteration or any change whatsoever.
 
A-13 

 
SCHEDULE OF INCREASES / DECREASES OF SECURITIES
 
The following increases and/or decreases in principal amount of this Security have been made as a result of exchanges, repurchases or conversions of a part of this Global Security:

Principal Amount
of this Global Security
Following Such
Increase / Decrease	 	Authorized
Signatory of
Trustee	 	Amount of Decrease
in
Principal Amount
of this Global
Security	 	Amount of
Increase in
Principal Amount
of this Global
Security	 	

 	 	 	 	 	 	 	 	
 
A-14 

Exhibit 5.1
 
KRAMER LEVIN NAFTALIS & FRANKEL LLP
 
July 27, 2010
 
Genco Shipping & Trading Limited
299 Park Avenue, 20 th  Floor
New York, NY  10171
 
Ladies and Gentlemen:
 
We have acted as United States counsel to Genco Shipping & Trading Limited, a company organized under the laws of the Republic of the Marshall Islands (the “ Company ”), in connection with the Registration Statement on Form S-3 (File No. 333-155758), including the prospectus included therein, filed with the U.S. Securities and Exchange Commission (the “ Commission ”) on November 26, 2008, as amended prior to the date hereof (the “ Registration Statement ”) and as supplemented by the prospectus supplement, filed with the Commission on July 22, 2010 (the “ Prospectus Supplement ”) with respect to the issuance and sale of up to $125,000,000 aggregate principal amount of 5.00% Convertible Senior Notes due 2015 (the “ Notes ”), which are convertible into shares of the Company’s common stock, par value $0.01 per share.
 
In rendering this opinion, we have examined copies of the following documents:
 
(A)          the Registration Statement,
 
(B)           the Prospectus Supplement,
 
(C)           the Articles of Incorporation of the Company,
 
(D)          the By-laws of the Company,
 
(E)           the indenture, dated as of July 27, 2010 (the “ Base Indenture ”), between the Company and The Bank of New York Mellon, as Trustee (the “ Trustee ”), supplemented by the First Supplemental Indenture (the “ Supplemental Indenture ” and, together with the Base Indenture, the “ Indenture ”), dated as of July 27, 2010, between the Company and the Trustee, pursuant to which the Notes will be issued, and
 
(F)           the Underwriting Agreement, dated as of July 21, 2010, between the Company and the several underwriters listed therein (the “ Underwriting Agreement ”), pursuant to which the Notes will be sold.
 
We have also made such inquiries and reviewed such documents and records as we have deemed necessary or appropriate as a basis for our opinion.  As to factual matters only, we have also relied upon the statements, representations and certificates of officers or other representatives of the Company, public officials and others.  We have not independently verified the facts so relied on.
 
1177 AVENUE OF THE AMERICAS     NEW YORK NY 10036-2714     PHONE 212.715.9100    FAX 212.715.8000   WWW.KRAMERLEVIN.COM
 
ALSO AT 47 AVENUE HOCHE    75008 PARIS FRANCE

 
Based on the foregoing, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that the Notes, when (i) sold in accordance with the terms and conditions of the Underwriting Agreement and (ii) duly executed, authenticated, issued and delivered in accordance with the terms and conditions of the Indenture, will be legally issued and will constitute binding obligations of the Company, subject to applicable bankruptcy, insolvency, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally and to 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).
 
In rendering this opinion, we have assumed that the Indenture has been duly authorized by the Trustee and constitutes the binding obligation of the Trustee.  As to the due authorization by the Company of the Indenture and the Notes, we have examined and relied upon the legal opinion, dated as of July 27, 2010, of Reeder & Simpson P.C., Marshall Islands counsel to the Company.
 
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 opinions expressed herein are 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 authorize the addressee of this opinion to file it as an exhibit to a Current Report on Form 8-K of the Company and consent to the incorporation by reference of this opinion into the Registration Statement and the reference to us under the captions “Legal Matters” in the prospectus that is a part of the Registration Statement and the Prospectus Supplement, 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 or the Prospectus Supplement.  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.

 	Very truly yours,	
 	 	
 	/s/ Kramer Levin Naftalis & Frankel LLP	
 	 	
 	Kramer Levin Naftalis & Frankel LLP	
 
2 

Exhibit 5.2
 
REEDER & SIMPSON PC
ATTORNEYS AT LAW

P.O. Box 601	Telephone: 011-692-625-3602	
RRE Commercial Center	Facsimile: 011-692-625-3602	
Majuro, MH 96960	Email: dreeder@ntamar.net	
 	r.simpson@simpson.gr	
 
July 27, 2010
 
Genco Shipping & Trading Limited (the “ Company ”)
299 Park Avenue, 20 th  Floor
New York, NY  10171
 
Ladies and Gentlemen:
 
We have acted as Republic of the Marshall Islands (the “ RMI ”), counsel to the Company, which is organized under the laws of the RMI.  This opinion is in connection with the Registration Statement on Form S-3 (File No. 333-155758), including the prospectus included therein, filed with the U.S. Securities and Exchange Commission (the “ Commission ”) on November 26, 2008, as amended prior to the date hereof (the “ Registration Statement ”) and as supplemented by the prospectus supplement, filed with the Commission on July 22, 2010 (the “ Prospectus Supplement ”) with respect to the issuance and sale of up to $125,000,000 aggregate principal amount of 5.00% Convertible Senior Notes due 2015 (the “ Notes ”), which are convertible into shares of the Company’s common stock, par value $0.01 per share (the “ Shares ”).
 
In rendering this opinion, we have examined copies of the following documents:
 
(A)          the Registration Statement,
 
(B)           the Prospectus Supplement,
 
(C)           the Articles of Incorporation of the Company,
 
(D)          the By-laws of the Company,
 
(E)           resolutions of the Board of Directors of the Company and its Offering Committee relating to the issuance of the Notes and Shares subject to the Registration Statement,
 
(F)           the indenture, dated as of July 27, 2010 (the “ Base Indenture ”), between the Company and The Bank of New York Mellon, as Trustee (the “ Trustee ”), supplemented by the First Supplemental Indenture (the “ Supplemental Indenture ” and, together with the Base Indenture, the “ Indenture ”), dated as of July 27, 2010, between the Company and the Trustee, pursuant to which the Notes will be issued, and

 
(G)           the Underwriting Agreement, dated as of July 21, 2010, between the Company and the several underwriters listed therein (the “ Underwriting Agreement ”), pursuant to which the Notes will be sold.
 
We have made such inquiries and reviewed such documents and records as we have deemed necessary or appropriate as a basis for our opinion.  We have also relied upon the statements, representations and certificates of officers or other representatives of the Registrants, public officials and others as to factual matters only.  We have not independently verified the facts so relied on.
 
Based on the foregoing, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that:
 
1.  The Indenture and the Notes have been duly authorized by the Company.
 
2.  The Notes, when (i) sold in accordance with the terms and conditions of the Underwriting Agreement and (ii) duly executed, authenticated, issued and delivered in accordance with the terms and conditions of the Indenture, will be legally issued, subject to applicable bankruptcy, insolvency, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally and to 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).
 
3.  The Shares covered by the Registration Statement, when issued upon conversion of the Notes in accordance with the terms of the Indenture and the Notes, will be legally issued, fully paid and non-assessable.
 
We express no opinion as to any laws other than the laws of the RMI (the “ Relevant Laws ”).  The opinions expressed herein are based upon the Relevant Laws and interpretations, and the facts and circumstances in existence, 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 authorize the addressee of this opinion to file it as an exhibit to a Current Report on Form 8-K of the Company and consent to the incorporation by reference of this opinion into the Registration Statement and the reference to us under the captions “Legal Matters” in the prospectus that is a part of the Registration Statement and the Prospectus Supplement, 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 or the Prospectus Supplement.  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.

 	Very truly yours,	
 	 	
 	/s/ Dennis J. Reeder	
 	 	
 	Reeder & Simpson PC	
 	 	
 	Dennis J. Reeder	

Exhibit 5.3
 
REEDER & SIMPSON PC
ATTORNEYS AT LAW

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

July 27, 2010
 
Genco Shipping & Trading Limited (the “ Company ”)
299 Park Avenue, 20 th  Floor
New York, NY  10171
 
Ladies and Gentlemen:
 
We have acted as Republic of the Marshall Islands (the “ RMI ”), counsel to the Company, which is organized under the laws of the RMI.  This opinion is in connection with the Registration Statement on Form S-3 (File No. 333-155758), including the prospectus included therein, filed with the U.S. Securities and Exchange Commission (the “ Commission ”) on November 26, 2008, as amended prior to the date hereof (the “ Registration Statement ”) and as supplemented by the prospectus supplement, filed with the Commission on July 22, 2010 (the “ Prospectus Supplement ”) with respect to the issuance and sale of by the Company of 3,593,750 shares of its Common Stock (collectively, the “Shares ”).
 
In rendering this opinion, we have examined copies of the following documents:
 
(A)          the Registration Statement, and
(B)           the Prospectus Supplement
 
We have made such inquiries and reviewed such documents and records as we have deemed necessary or appropriate as a basis for our opinion.  We have also relied upon the statements, representations and certificates of officers or other representatives of the Registrants, public officials and others as to factual matters only.  We have not independently verified the facts so relied on.
 
Based on the foregoing, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that:
 
1.  The Shares have been duly authorized by the Company.
 
2.  The Shares, when and to the extent issued and delivered against payment therefor in accordance with the resolutions of the board of directors of the Company authorizing their issuance and in the manner described in the Registration Statement, will be legally issued, fully paid and non-assessable.

 
We express no opinion as to any laws other than the laws of the RMI (the “ Relevant Laws ”).  The opinions expressed herein are based upon the Relevant Laws and interpretations, and the facts and circumstances in existence, 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 authorize the addressee of this opinion to file it as an exhibit to a Current Report on Form 8-K of the Company and consent to the incorporation by reference of this opinion into the Registration Statement and the reference to us under the captions “Legal Matters” in the prospectus that is a part of the Registration Statement and the Prospectus Supplement, 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 or the Prospectus Supplement.  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.

 	Very truly yours,	
 	 	
 	/s/ Dennis J. Reeder	
 	 	
 	Reeder & Simpson PC	

Exhibit 8.1
 
REEDER & SIMPSON PC
ATTORNEYS AT LAW

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

July 27, 2010
 
Genco Shipping & Trading Limited
299 Park Avenue, 20 th  Floor
New York, New York 10171
 
Re: Genco Shipping & Trading Limited - Registration Statement on Form S-3
 
Ladies and Gentlemen:
 
We have acted as Republic of the Marshall Islands (the “ RMI ”) counsel to Genco Shipping & Trading Limited, a non-resident domestic corporation formed under the laws of the RMI (the “ Company ”), in connection with the offer and sale by the Company of $125,000,000 principal amount of 5.00% Convertible Senior Notes due 2015 (the “ Notes ”), pursuant to its registration statement on Form S-3 (File No. 333-155758), including the prospectus included therein, filed with the U.S. Securities and Exchange Commission on November 26, 2008, as amended prior to the date hereof (the “ Registration Statement ”) and as supplemented by the prospectus supplement, filed with the Commission on July 22, 2010 (the “ Prospectus Supplement ”).  In connection therewith, we have prepared the discussion set forth in the Prospectus Supplement under the caption “Tax Considerations — Marshall Islands Tax Considerations” (the “ Discussion ”).
 
All statements of legal conclusions contained in the Discussion, unless otherwise noted, are our opinion with respect to the matters set forth therein as of the date of the Prospectus Supplement in respect of the discussion set forth under the caption “Tax Considerations — Marshall Islands Tax Considerations.”  In addition, we are of the opinion that the Discussion, with respect to those matters as to which no legal conclusions are provided, is an accurate discussion of such RMI  tax matters (except for the representations and statements of fact of the Company, included in the Discussion, as to which we express no opinion).
 
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K and to the use of our name in the Registration Statement and the Prospectus Supplement.  This consent does not constitute an admission that we are an “expert” within the meaning of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder.
 
Sincerely,
 
/s/ Dennis J. Reeder
 
Reeder & Simpson, P.C.
 
Dennis J. Reeder

Exhibit 8.2
 
REEDER & SIMPSON PC
ATTORNEYS AT LAW

P.O. Box 601	Telephone: 011-692-625-3602	
RRE Commercial Center	Facsimile: 011-692-625-3602	
Majuro, MH 96960	Email: dreeder@ntamar.net	
 	r.simpson@simpson.gr	
 
July 27, 2010
 
Genco Shipping & Trading Limited
299 Park Avenue, 20 th  Floor
New York, New York 10171
 
Re: Genco Shipping & Trading Limited - Registration Statement on Form S-3
 
Ladies and Gentlemen:
 
We have acted as Republic of the Marshall Islands (the “ RMI ”) counsel to Genco Shipping & Trading Limited, a non-resident domestic corporation formed under the laws of the RMI (the “ Company ”), in connection with the offer and sale of an aggregate of 3,593,750 shares of common stock of the Company pursuant to its registration statement on Form S-3 (File No. 333-155758), including the prospectus included therein, filed with the U.S. Securities and Exchange Commission (the “Commission”) on November 26, 2008, as amended prior to the date hereof (the “ Registration Statement ”) and as supplemented by the prospectus supplement, filed with the Commission on July 22, 2010 (the “ Prospectus Supplement ”).  In connection therewith, we have prepared the discussion set forth in the Prospectus Supplement under the caption “Tax Considerations — Marshall Islands Tax Considerations” (the “ Discussion ”).
 
All statements of legal conclusions contained in the Discussion, unless otherwise noted, are our opinion with respect to the matters set forth therein as of the date of the Prospectus Supplement in respect of the discussion set forth under the caption “Tax Considerations — Marshall Islands Tax Considerations.”  In addition, we are of the opinion that the Discussion, with respect to those matters as to which no legal conclusions are provided, is an accurate discussion of such RMI  tax matters (except for the representations and statements of fact of the Company, included in the Discussion, as to which we express no opinion).
 
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K and to the use of our name in the Registration Statement and the Prospectus Supplement.  This consent does not constitute an admission that we are an “expert” within the meaning of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder.
 
Sincerely,
 
/s/ Dennis J. Reeder
 
Reeder & Simpson, P.C.
 
Dennis J. Reeder

Exhibit 8.3
 
KRAMER LEVIN NAFTALIS & FRANKEL LLP
 
July 27, 2010
 
Genco Shipping & Trading Limited
299 Park Avenue
20 th  Floor
New York, NY 10171
 
Ladies and Gentlemen:
 
We have acted as United States tax counsel to Genco Shipping & Trading Limited, a Marshall Islands corporation (the “Company”), in connection with the offer and sale by the Company of $125,000,000 principal amount of 5.00% Convertible Notes due 2015 (the “Notes”), pursuant to its registration statement on Form S-3 (File No. 333-155758), including the prospectus included therein, filed with the U.S. Securities and Exchange Commission (the “Commission”) on November 26, 2008, as amended prior to the date hereof (the “Registration Statement”) and as supplemented by the prospectus supplement, filed with the Commission on July 22, 2010 (the “Prospectus Supplement”). All capitalized terms used herein have their respective meanings set forth in the Registration Statement unless otherwise stated.
 
For purposes of the opinion set forth below, we have reviewed and relied upon the Registration Statement and such other documents, records, and instruments as we have deemed necessary or appropriate as a basis for our opinion.  In addition, in rendering our opinion we have relied upon certain statements of factual matters made by the Company, which we have neither investigated nor verified.  We have assumed that such statements are true, correct, complete, and not breached, and that no actions that are inconsistent with such statements will be taken.  We have also assumed that all statements made “to the best knowledge of” or “beliefs” of any persons will be true, correct, and complete as if made without such qualification.  Any inaccuracy in, or breach of, any of the aforementioned statements and assumptions, or any change after the date hereof in applicable law, could adversely affect our opinion.  No ruling has been (or will be) sought from the Internal Revenue Service (the “Service”) by the Company as to the United States federal income tax consequences of the purchase, ownership, and disposition of the Notes or shares of the Company’s common stock, par value U.S. $0.01 per share (“Common Stock”), issuable upon conversion of the Notes.  The opinion expressed herein is not binding on the Service or any court, and there can be no assurance that the Service or a court of competent jurisdiction will not disagree with such opinion.
 
Based upon and subject to the foregoing as well as the limitations set forth below, under presently applicable United States federal income tax law,  the statements of law set forth in the Prospectus Supplement under the headings “Tax Considerations — United States Federal Income Tax Considerations — Tax Consequences to U.S. Holders,” “— Tax Consequences to Non-U.S. Holders,” and “— Backup Withholding and Information Reporting” constitute our
 
1177 AVENUE OF THE AMERICAS    NEW YORK NY 10036-2714    PHONE 212.715.9100   FAX 212.715.8000   WWW.KRAMERLEVIN.COM
 
ALSO AT 47 AVENUE HOCHE    75008 PARIS FRANCE

 
opinion as to the material United States federal income tax consequences to U.S. and Non-U.S. Holders of the purchase, ownership, and disposition of Notes or shares of Common Stock.
 
No opinion is expressed as to any matter not specifically addressed above.  Also, no opinion is expressed as to the tax consequences of the purchase, ownership, and disposition of Notes or Common Stock under any non-United States, state, or local tax law.  Furthermore, our opinion is based on current United States federal income tax law and administrative practice, and we do not undertake to advise you as to any changes in federal income tax law or administrative practice that may affect our opinion unless we are specifically asked to do so.
 
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the caption under the caption “Legal Matters” in the Prospectus Supplement. The giving of this consent, however, does not constitute an admission that we are “experts” within the meaning of Section 11 of the Securities Act of 1933, as amended, or within the category of persons whose consent is required by Section 7 of said Act.
 
This opinion is being delivered to you for the purpose of being included as an exhibit to a Current Report on Form 8-K and, except as set forth above, may not be circulated, quoted, or otherwise referred to for any other purpose without our written consent.

 	Very truly yours,	
 	 	
 	/s/ Kramer Levin Naftalis & Frankel LLP	
 	 	
 	Kramer Levin Naftalis & Frankel LLP	

Exhibit 8.4
 
KRAMER LEVIN NAFTALIS & FRANKEL LLP
 
July 27, 2010
 
Genco Shipping & Trading Limited
299 Park Avenue
20th Floor
New York, NY 10171
 
Ladies and Gentlemen:
 
We have acted as United States tax counsel to Genco Shipping & Trading Limited, a Marshall Islands corporation (the “Company”), in connection with the sale by the Company of 3,593,750 shares of common stock, par value U.S. $0.01 per share (“Common Stock”), pursuant to its registration statement on Form S-3 (File No. 333-155758), including the prospectus included therein, filed with the U.S. Securities and Exchange Commission (the “Commission”) on November 26, 2008, as amended prior to the date hereof (the “Registration Statement”) and as supplemented by the prospectus supplement, filed with the Commission on July 22, 2010 (the “Prospectus Supplement”). All capitalized terms used herein have their respective meanings set forth in the Registration Statement unless otherwise stated.
 
For purposes of the opinion set forth below, we have reviewed and relied upon the Registration Statement and such other documents, records, and instruments as we have deemed necessary or appropriate as a basis for our opinion.  In addition, in rendering our opinion we have relied upon certain statements of factual matters made by the Company, which we have neither investigated nor verified.  We have assumed that such statements are true, correct, complete, and not breached, and that no actions that are inconsistent with such statements will be taken.  We have also assumed that all statements made “to the best knowledge of” or “beliefs” of any persons will be true, correct, and complete as if made without such qualification.  Any inaccuracy in, or breach of, any of the aforementioned statements and assumptions, or any change after the date hereof in applicable law, could adversely affect our opinion.  No ruling has been (or will be) sought from the Internal Revenue Service (the “Service”) by the Company as to the United States federal income tax consequences of the purchase, ownership, and disposition of shares of Common Stock.  The opinion expressed herein is not binding on the Service or any court, and there can be no assurance that the Service or a court of competent jurisdiction will not disagree with such opinion.
 
Based upon and subject to the foregoing as well as the limitations set forth below, under presently applicable United States federal income tax law,  the statements of law set forth in the Prospectus Supplement under the headings “Tax Considerations — United States Federal Income Tax Considerations — United States Federal Income Taxation of U.S. Holders,” “— United States Federal Income Taxation of Non-U.S. Holders,” and “— Backup Withholding and Information Reporting” constitute our opinion as to the material United States federal
 
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income tax consequences to U.S. and Non-U.S. Holders of the purchase, ownership, and disposition of shares of Common Stock.
 
No opinion is expressed as to any matter not specifically addressed above.  Also, no opinion is expressed as to the tax consequences of the purchase, ownership, and disposition of Common Stock under any non-United States, state, or local tax law.  Furthermore, our opinion is based on current United States federal income tax law and administrative practice, and we do not undertake to advise you as to any changes in federal income tax law or administrative practice that may affect our opinion unless we are specifically asked to do so.
 
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the caption under the caption “Legal Matters” in the Prospectus Supplement. The giving of this consent, however, does not constitute an admission that we are “experts” within the meaning of Section 11 of the Securities Act of 1933, as amended, or within the category of persons whose consent is required by Section 7 of said Act.
 
This opinion is being delivered to you for the purpose of being included as an exhibit to a Current Report on Form 8-K and, except as set forth above, may not be circulated, quoted, or otherwise referred to for any other purpose without our written consent.

 	Very truly yours,	
 	 	
 	/s/ Kramer Levin Naftalis & Frankel LLP	
 	 	
 	Kramer Levin Naftalis & Frankel LLP