EXHIBIT
10.2


CHARYS HOLDING COMPANY, INC.,


THE
GUARANTORS NAMED HEREIN


and


THE BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee






 


INDENTURE


Dated as of
February 16, 2007






 


Up to
$201,250,000 Principal Amount


8.75%
SENIOR CONVERTIBLE NOTES DUE 2012
















TABLE OF
CONTENTS


	
  

  	
   

  	
   

  	
  Page

  
	
  I.

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions.

  	
  1

  
	
   

  	
  1.2

  	
  Other Definitions.

  	
  6

  
	
   

  	
  1.3

  	
  Incorporation by Reference of Trust Indenture Act.

  	
  7

  
	
   

  	
  1.4

  	
  Rules of Construction.

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  THE SECURITIES

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Form and Dating.

  	
  8

  
	
   

  	
  2.2

  	
  Execution and Authentication.

  	
  8

  
	
   

  	
  2.3

  	
  Registrar, Paying Agent and Conversion Agent.

  	
  9

  
	
   

  	
  2.4

  	
  Paying Agent to Hold Money in Trust.

  	
  9

  
	
   

  	
  2.5

  	
  Securityholder Lists.

  	
  10

  
	
   

  	
  2.6

  	
  Transfer and Exchange.

  	
  10

  
	
   

  	
  2.7

  	
  Replacement of Securities.

  	
  10

  
	
   

  	
  2.8

  	
  Outstanding Securities.

  	
  10

  
	
   

  	
  2.9

  	
  Securities Held by the Company or an Affiliate.

  	
  11

  
	
   

  	
  2.10

  	
  Temporary Securities.

  	
  11

  
	
   

  	
  2.11

  	
  Cancellation.

  	
  11

  
	
   

  	
  2.12

  	
  Defaulted Interest.

  	
  12

  
	
   

  	
  2.13

  	
  CUSIP Numbers.

  	
  12

  
	
   

  	
  2.14

  	
  Deposit of Moneys.

  	
  12

  
	
   

  	
  2.15

  	
  Book-Entry Provisions for Global Securities.

  	
  12

  
	
   

  	
  2.16

  	
  Special Transfer Provisions.

  	
  13

  
	
   

  	
  2.17

  	
  Restrictive Legends.

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
  REDEMPTION; REPURCHASE

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Right of Redemption.

  	
  14

  
	
   

  	
  3.2

  	
  Notices to Trustee.

  	
  17

  
	
   

  	
  3.3

  	
  Selection of Securities to be Redeemed.

  	
  18

  
	
   

  	
  3.4

  	
  Notice and Public Announcement of Redemption.

  	
  18

  
	
   

  	
  3.5

  	
  Effect of Notice of Redemption.

  	
  19

  
	
   

  	
  3.6

  	
  Deposit of Redemption Price.

  	
  20

  
	
   

  	
  3.7

  	
  Securities Redeemed in Part.

  	
  20

  
	
   

  	
  3.8

  	
  Repurchase at Holder’s Option.

  	
  20

  
	
   

  	
  3.9

  	
  No Sinking Fund.

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  IV.

  	
  COVENANTS

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Payment of Securities.

  	
  24

  
	
   

  	
  4.2

  	
  Maintenance of Office or Agency.

  	
  24

  
	
   

  	
  4.3

  	
  Rule 144A Information and Annual Reports.

  	
  25

  
	
   

  	
  4.4

  	
  Compliance Certificate.

  	
  25

  
	
   

  	
  4.5

  	
  Stay, Extension and Usury Laws.

  	
  26

  
	
   

  	
  4.6

  	
  Corporate Existence; Conduct of Business.

  	
  26

  
	
   

  	
  4.7

  	
  Indebtedness and Liens.

  	
  26

  
	
   

  	
  4.8

  	
  Acquisitions and Capital Expenditures.

  	
  26

  
	
   

  	
  4.9

  	
  No Subsidiaries.

  	
  27

  
	
   

  	
  4.10

  	
  Payment of Taxes.

  	
  27

  
	
   

  	
  4.11

  	
  Transactions with Affiliates

  	
  27

  
	
   

  	
  4.12

  	
  Distributions and Redemptions

  	
  27

  
	
   

  	
  4.13

  	
  Sales of Assets; Liquidation

  	
  27

  
	
   

  	
  4.14

  	
  Notice of Default.

  	
  28

  
	
   

  	
  4.15

  	
  Further Instruments and Acts.

  	
  28

  
							



 



 i
 









 


	
  V.

  	
  SUCCESSORS

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  When the Company May Merge, Etc.

  	
  28

  
	
   

  	
  5.2

  	
  Successor Substituted.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  VI.

  	
  DEFAULTS AND REMEDIES

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Events of Default.

  	
  28

  
	
   

  	
  6.2

  	
  Acceleration.

  	
  30

  
	
   

  	
  6.3

  	
  Other Remedies.

  	
  30

  
	
   

  	
  6.4

  	
  Waiver of Defaults.

  	
  30

  
	
   

  	
  6.5

  	
  Control by Majority.

  	
  31

  
	
   

  	
  6.6

  	
  Limitation on Suits.

  	
  31

  
	
   

  	
  6.7

  	
  Rights of Holders to Receive Payment.

  	
  31

  
	
   

  	
  6.8

  	
  Collection Suit by Trustee.

  	
  31

  
	
   

  	
  6.9

  	
  Trustee May File Proofs of Claim.

  	
  31

  
	
   

  	
  6.10

  	
  Priorities.

  	
  32

  
	
   

  	
  6.11

  	
  Undertaking for Costs.

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  VII.

  	
  TRUSTEE

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Duties of Trustee.

  	
  32

  
	
   

  	
  7.2

  	
  Rights of Trustee.

  	
  33

  
	
   

  	
  7.3

  	
  Individual Rights of Trustee.

  	
  34

  
	
   

  	
  7.4

  	
  Trustee’s Disclaimer.

  	
  34

  
	
   

  	
  7.5

  	
  Notice of Defaults.

  	
  34

  
	
   

  	
  7.6

  	
  Reports by Trustee to Holder of the Securities.

  	
  34

  
	
   

  	
  7.7

  	
  Compensation, Reimbursement and Indemnity.

  	
  35

  
	
   

  	
  7.8

  	
  Replacement of Trustee.

  	
  35

  
	
   

  	
  7.9

  	
  Successor Trustee by Merger, Etc.

  	
  36

  
	
   

  	
  7.10

  	
  Eligibility; Disqualification.

  	
  36

  
	
   

  	
  7.11

  	
  Preferential Collection of Claims Against Company.

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  VIII.

  	
  DISCHARGE OF INDENTURE

  	
  37

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Termination of the Obligations of the Company.

  	
  37

  
	
   

  	
  8.2

  	
  Application of Trust Money.

  	
  37

  
	
   

  	
  8.3

  	
  Repayment to Company and/or the Guarantors (as
  applicable).

  	
  37

  
	
   

  	
  8.4

  	
  Reinstatement.

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  IX.

  	
  AMENDMENTS

  	
  38

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Without Consent of Holders.

  	
  38

  
	
   

  	
  9.2

  	
  With Consent of Holders.

  	
  38

  
	
   

  	
  9.3

  	
  Compliance with Trust Indenture Act.

  	
  39

  
	
   

  	
  9.4

  	
  Revocation and Effect of Consents.

  	
  39

  
	
   

  	
  9.5

  	
  Notation on or Exchange of Securities.

  	
  40

  
	
   

  	
  9.6

  	
  Trustee Protected.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  X.

  	
  CONVERSION

  	
  40

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Conversion Privilege.

  	
  40

  
	
   

  	
  10.2

  	
  Limitations on Conversion.

  	
  41

  
	
   

  	
  10.3

  	
  Restrictive Legends.

  	
  41

  
	
   

  	
  10.4

  	
  Conversion Procedure.

  	
  41

  
	
   

  	
  10.5

  	
  Fractional Shares.

  	
  42

  
	
   

  	
  10.6

  	
  Taxes on Conversion.

  	
  42

  
	
   

  	
  10.7

  	
  Company to Provide Stock.

  	
  42

  
	
   

  	
  10.8

  	
  Adjustment of Conversion Price.

  	
  43

  
	
   

  	
  10.9

  	
  No Adjustment.

  	
  45

  
	
   

  	
  10.10

  	
  Certificate of Adjustment.

  	
  45

  
					



 



 ii
 









 


	
  

  	
  10.11

  	
  Conversion in Connection with a Change in Control.

  	
  46

  
	
   

  	
  10.12

  	
  Notice of Certain Transactions.

  	
  47

  
	
   

  	
  10.13

  	
  Effect of Reclassifications, Consolidations,
  Mergers, Binding Share Exchanges or Sales on Conversion Privilege.

  	
  47

  
	
   

  	
  10.14

  	
  Trustee’s Disclaimer.

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  XI.

  	
  SUBORDINATION

  	
  48

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Agreement of Subordination.

  	
  48

  
	
   

  	
  11.2

  	
  Liquidation; Dissolution; Bankruptcy.

  	
  48

  
	
   

  	
  11.3

  	
  Default on Designated Secured Indebtedness.

  	
  48

  
	
   

  	
  11.4

  	
  Acceleration of Securities.

  	
  49

  
	
   

  	
  11.5

  	
  When Distribution Must Be Paid Over.

  	
  49

  
	
   

  	
  11.6

  	
  Notice by Company.

  	
  49

  
	
   

  	
  11.7

  	
  Subrogation.

  	
  49

  
	
   

  	
  11.8

  	
  Relative Rights.

  	
  50

  
	
   

  	
  11.9

  	
  Subordination May Not Be Impaired by Company.

  	
  50

  
	
   

  	
  11.10

  	
  Distribution or Notice to Representative.

  	
  50

  
	
   

  	
  11.11

  	
  Rights of Trustee.

  	
  50

  
	
   

  	
  11.12

  	
  Authorization to Effect Subordination.

  	
  51

  
	
   

  	
  11.13

  	
  Article Applicable to Paying Agents.

  	
  51

  
	
   

  	
  11.14

  	
  Designated Secured Indebtedness Entitled to Rely.

  	
  51

  
	
   

  	
  11.15

  	
  Permitted Payments.

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  XII.

  	
  GUARANTEE

  	
  51

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Guarantee.

  	
  51

  
	
   

  	
  12.2

  	
  Obligations of Guarantees Unconditional.

  	
  53

  
	
   

  	
  12.3

  	
  Execution of Guarantees.

  	
  53

  
	
   

  	
  12.4

  	
  Release of a Guarantor.

  	
  53

  
	
   

  	
  12.5

  	
  Withholding.

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  XIII.

  	
  MISCELLANEOUS

  	
  54

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Trust Indenture Act Controls.

  	
  54

  
	
   

  	
  13.2

  	
  Notices.

  	
  54

  
	
   

  	
  13.3

  	
  Communication by Holders with Other Holders.

  	
  55

  
	
   

  	
  13.4

  	
  Certificate and Opinion as to Conditions Precedent.

  	
  55

  
	
   

  	
  13.5

  	
  Statements Required in Certificate or Opinion.

  	
  55

  
	
   

  	
  13.6

  	
  Rules by Trustee and Agents.

  	
  56

  
	
   

  	
  13.7

  	
  Legal Holidays.

  	
  56

  
	
   

  	
  13.8

  	
  Duplicate Originals.

  	
  56

  
	
   

  	
  13.9

  	
  Governing Law; Submission to Jurisdiction.

  	
  56

  
	
   

  	
  13.10

  	
  No Adverse Interpretation of Other Agreements.

  	
  56

  
	
   

  	
  13.11

  	
  Successors.

  	
  57

  
	
   

  	
  13.12

  	
  Separability.

  	
  57

  
	
   

  	
  13.13

  	
  Table of Contents, Headings, Etc.

  	
  57

  
	
   

  	
  13.14

  	
  Calculations in Respect of the Securities.

  	
  57

  
	
   

  	
  13.15

  	
  Force Majeure.

  	
  57

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  — Form of Global Security

  	
   

  
	
  Exhibit B-1

  	
  — Form of Private Placement Legend

  	
   

  
	
  Exhibit B-2

  	
  — Form of Legend for Global Security

  	
   

  
	
  Exhibit B-3

  	
  — Form of Legend Regarding Registration Rights
  Agreement

  	
   

  
	
  Exhibit C

  	
  — Form of Notice of Transfer Pursuant to
  Registration Statement

  	
   

  



 



 iii















INDENTURE,
dated as of February 16, 2007, between (i) Charys Holding Company, Inc., a
Delaware corporation (the “Company”), (ii) the Guarantors (as defined
below), and (iii) The Bank of New York Corporate Trust Company, N.A., a
national banking association, as trustee (the “Trustee”).


Each party agrees
as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s 8.75% Senior Convertible Notes due 2012
(the “Securities”).


I.  DEFINITIONS AND INCORPORATION BY REFERENCE


1.1          Definitions.


“Additional
Interest” has the meaning ascribed to it in the Registration Rights
Agreement.  All references herein or in
the Securities to interest accrued or payable as of any date shall include any
Additional Interest accrued or payable as of such date as provided in the
Registration Rights Agreement.


“Additional
Securities” means additional Securities in an aggregate amount not to
exceed $26,250,000 issued pursuant to the Initial Purchaser’s Option.


“Affiliate”
of any Person means, with respect to any specified Person: (a) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; (b) any other Person that owns,
directly or indirectly, 10% or more of such specified Person’s Capital Stock,
or any officer or director of any such specified Person or other Person or,
with respect to any natural Person, any person having a relationship with such
Person by blood, marriage or adoption not more remote than first cousin; or (c)
any other Person 10% or more of the Voting Stock of which is beneficially owned
or held, directly or indirectly, by such specified Person.  For the purpose of this definition, “control,”
when used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.


“Board”
or Board of Directors” means the Board of Directors of the Company or
any committee thereof authorized to act for it hereunder.


“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 and to be in full force and effect on the date of such certification,
and delivered to the Trustee.


“Capital
Expenditures” shall mean all cash payments for any fixed assets or
improvements or for replacements, substitutions or additions thereto, that have
a useful life of more than one year and which are required to be capitalized
under GAAP or which would be capitalized based on past practices of the
Company.


“Capital
Stock” of any Person means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of such Person and all
warrants, options or rights to acquire such capital stock.


“Common
Stock” means the common stock, par value $0.001 per share, of the Company,
or such other Capital Stock of the Company into which the Company’s common
stock is reclassified or changed.


“Common
Stock Equivalents” means rights, options, warrants or other securities to,
directly or indirectly, subscribe for or purchase Common Stock, or securities,
directly or indirectly, convertible or exercisable into or exchangeable for
Common Stock.


“Company”
means the party named as such above until a successor replaces it pursuant to
the applicable provisions hereof and thereafter means the successor.


“Company’s
Request” means a written request or order signed on behalf of the Company
by its Chairman of the Board, its Chief Executive Officer, its President, its
Chief Operating Officer, its Chief Financial Officer, any



 1
 









Executive Vice
President or any Senior Vice President and by its Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary, and delivered to the
Trustee.


“Conversion
Price” means $2.25, subject to adjustment as provided in ARTICLE X.


“Continuing
Directors” means members of the Company’s Board of Directors as of the
Issue Date or a person recommended to succeed such a member and designated a “Continuing
Director” by a majority of the Continuing Directors and who is subsequently
elected to the Board of Directors.


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee
specified in SECTION 13.2 or such other address as the Trustee may give notice
of to the Company.


“Current
Market Price” means (a) if the Common Stock is listed or quoted on a
Trading Market, the Volume Weighted Average Price for the 20 consecutive
Trading Days ending on and including the Trading Day immediately preceding the
applicable Date of Determination; and (b) if not so listed or quoted, such
price as the Board of Directors of the Company shall determine, in good faith.


“Date
of Determination” means (a) with respect to SECTIONS 10.8(a), (b) and (c),
the date fixed for determination of the holders of Common Stock entitled to
receive the subject dividend, issuance or distribution, and (b) with respect to
SECTION 10.8(d), the Trading Day immediately preceding the date on which the
Common Stock or Common Stock Equivalents are issued or sold.


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


“Depositary”
means The Depository Trust Company, New York, New York, its nominees and
successors.


“Designated
Secured Indebtedness” means (a) Existing Secured Indebtedness, (b) Secured
Indebtedness the terms of which expressly require subordination of the
Securities, in an amount not to exceed $10,000,000 in the aggregate (not
including Existing Secured Indebtedness), and (c) such other Secured
Indebtedness as is designated as “Designated Secured Indebtedness” by the
Company with the prior written consent of the Requisite Holders.


“Disqualified
Stock” means, with respect to the Company or any Subsidiary, any Capital
Stock which by its terms (or the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(a) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, or (b) is redeemable at the option of the holder thereof, in
either case, in whole or in part, on or prior to a date that is 91 days after
the Maturity Date.


“EBITDA”
means (a) consolidated net earnings (or loss), minus (b) the aggregate
amount of extraordinary gains and interest income, plus (c) the aggregate
amount of extraordinary losses, non-cash and nonrecurring expenses (not to exceed
$5,000,000 in the aggregate for the applicable fiscal year), interest expenses,
income taxes and depreciation and amortization, as determined in accordance
with GAAP.


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC thereunder.


“Excluded
Securities” means shares, rights, options, warrants and convertible or
exchangeable securities, issued or issuable (a) in any of the transactions with
respect to which an adjustment of the Conversion Price is provided pursuant to
SECTIONS 10.8(a) through (c) of this Indenture, (b) pursuant to the Purchase
Agreement or in connection therewith, including, the Units, the Securities, the
Guarantees, the Warrants and the Initial Purchaser Warrants, (c) upon conversion
or exercise of the Securities (including, Additional Shares, if any), the
Warrants or the Initial Purchaser’s Warrants, and (d) to directors and
employees (including officers) pursuant to stock option and incentive plans
existing as of the Issue Date.



 2
 









“Existing
Secured Indebtedness” means Secured Indebtedness existing as of the Issue
Date and identified on Schedule 2(b)(ii) to the Purchase Agreement and such
Secured Indebtedness as may, following the Issue Date be obtained in order to
refinance or otherwise replace such identified Secured Indebtedness, in the
same or lesser amounts as the amounts identified in said schedule and
outstanding as of the Issue Date but, in any case, only to the extent the terms
thereof expressly require subordination of the Securities.


“GAAP”
means United States generally accepted accounting principles as in effect from
time to time.


“Guarantees”
means the guarantees of the Guarantors endorsed on the Securities and shall
include the guarantees set forth in ARTICLE XII; “Guarantee” means each
such guarantee.


“Guarantor”
or “Guarantors” means the Subsidiaries identified on the signature page
to this Indenture and such other Subsidiaries as become Guarantors pursuant to
ARTICLE XII of this Indenture until any successor corporation shall have become
such with respect to any Guarantor pursuant to the applicable provisions of
this Indenture, and thereafter “Guarantors” shall include any successor
corporations; provided, however, that upon the sale or disposition (by merger
or otherwise) of a Guarantor to an entity which is not a direct or indirect
Subsidiary of the Company with the consent of the Requisite Holders, that
Guarantor shall be deemed released from all obligations under its Guarantee
without any further action required on the part of the Trustee or any Holder;
and thereafter “Guarantors” shall exclude such released Guarantor.


“Guarantor
Request” means a written request signed in the name of the Guarantor by its
Chairman of the Board, its Vice Chairman of the Board, its President or a Vice
President, and by its Treasurer or an Assistant Treasurer, or its Secretary or
an Assistant Secretary, and delivered to the Trustee.


“Holder”
or “Securityholder” means a Person in whose name a Security (including
the Guarantee endorsed thereon) is registered on the Registrar’s books.


“Indebtedness”
of a Person means the principal of, premium, if any, and interest on, and all
other obligations in respect of (a) all indebtedness of such Person for
borrowed money (including all indebtedness evidenced by notes, bonds,
debentures or other securities), (b) all obligations (other than trade
payables) incurred by such Person in the acquisition (whether by way of
purchase, merger, consolidation or otherwise and whether by such Person or
another Person) of any business, real property or other assets, (c) all
reimbursement obligations of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of such
Person, (d) all capital lease obligations of such Person, (e) all net
obligations of such Person under interest rate swap, currency exchange or
similar agreements of such Person, (f) all obligations and other liabilities,
contingent or otherwise, under any lease or related document, including a purchase
agreement, conditional sale or other title retention agreement, in connection
with the lease of real property or improvements thereon (or any personal
property included as part of any such lease) which provides that such Person is
contractually obligated to purchase or cause a third party to purchase the
leased property or pay an agreed-upon residual value of the leased property,
including such Person’s obligations under such lease or related document to
purchase or cause a third party to purchase such leased property or pay an
agreed-upon residual value of the leased property to the lessor, (g) guarantees
by such Person of indebtedness described in CLAUSES (a) though (f) of another
Person, (h) all Disqualified Stock and preferred stock issued by any Subsidiary,
and (i) all renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any indebtedness, obligation, guarantee or
liability of the kind described in CLAUSES (a) though (h).


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


“Initial
Purchaser” means McMahan Securities Co. L.P.


“Initial
Purchaser’s Option” means the Initial Purchaser’s option to acquire up to
$26,250,000 aggregate principal amount of Additional Securities as provided for
in the Purchase Agreement.


“Initial
Purchaser’s Warrants” means the warrants issued or issuable to the Initial
Purchaser and/or one or more of its Affiliates in connection with the
transactions contemplated by the Purchase Agreement.



 3
 









The
term “Interest” or “interest” as it relates to the Securities,
includes Additional Interest, unless the context otherwise requires or unless
the terms of the Registration Rights Agreement provide otherwise.


“Interest
Payment Default” means (a) with respect to a Security called for
Redemption, in the case that the applicable Redemption Date is also an interest
payment date, a Default in the payment of the accrued and unpaid Interest, if
any, to, but excluding the Redemption Date to the Holder(s) of record of such
Security as of the close of business on the record date for such interest
payment, and (b) with respect to a Security subject to repurchase at Holder’s
Option Upon a Change of Control, in the case that the applicable Repurchase
Date is also an interest payment date, a Default in the payment of the accrued
and unpaid Interest, if any, to, but excluding the Repurchase Date to the
Holder(s) of record of such Security as of the close of business on the record
date for such interest payment.


“Issue
Date” means February 16, 2007.


“Junior
Debt” means unsecured Indebtedness, not to exceed $25,000,000 in the
aggregate, which Indebtedness (a) has a maturity date not less than 91 days
after the Maturity Date, and (b) is expressly subordinated to the Securities,
such that (i) no payment may be made with respect to the principal of, or other
amounts owing, in all respect of such Indebtedness (except that scheduled
interest may be paid so long as no Event of Default shall have occurred and be
continuing), and (ii) upon any payment or distribution of the assets of the
Company to creditors upon dissolution, total or partial liquidation or
reorganization of, or similar proceeding relating to, the Company, the Holders
will be entitled to receive payment in full (including, without limitation, all
Interest accruing on or after filing of any petition in bankruptcy or
reorganization whether or not a claim for post-filing interest is allowed in
such proceeding) in respect of the Securities before any holder of such other
Indebtedness is entitled to receive any payment.


 “Lien” means any lien, mortgage, deed
of trust, pledge, security interest, charge or encumbrance of any kind.


“Maturity
Date” means February 16, 2012.


“Obligations”
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.


“Officer”
of a Person means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, any Vice
President, the Treasurer or the Secretary of such Person.


“Officers’
Certificate” means a certificate signed by two Officers of the Company or
by an Officer and an Assistant Treasurer or an Assistant Secretary of the
Company.


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


“Permitted
Indebtedness” means (a) ordinary and customary unsecured trade payables
incurred in the ordinary course of the business of the Company and the
Subsidiaries, (b) Designated Secured Indebtedness, (c) Indebtedness of one or
more Subsidiaries, existing as of the Issue Date and identified on in Schedule
2(b)(ii) to the Purchase Agreement, and (d) Junior Debt.


“Permitted
Liens” means Liens (a) for taxes which are not yet due and payable, (b)
arising by operation of law in favor of wherehousemen, landlords, carriers,
mechanics, materialmen, laborers or suppliers, incurred in the ordinary course of
business or in connection with Permitted Capital Expenditures and Acquisitions,
(c) securing the interests of lessors under capital leases, and (d) securing
Designated Secured Indebtedness.



 4
 









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


“Principal
Amount” of a Security means the principal amount of the Security as set forth
on the face of the Security.


“Purchase
Agreement” means the Purchase Agreement, dated February 14, 2007, between
the Company and the Initial Purchaser.


“Purchase
Notice” means a Purchase Notice in the form set forth in the Securities.


“Redemption”
means a Provisional Redemption.


“Redemption
Date” means the date specified by the Company for Provisional Redemption of
the Securities in accordance with the terms of the Securities and this
Indenture.


“Redemption
Price” means, with respect to a Security to be redeemed by the Company in
accordance with ARTICLE III, 100% of the outstanding principal amount of such
Security to be redeemed, plus accrued and unpaid interest (including Additional
Interest), if any, to but excluding the Redemption Date.


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the
date hereof, between the Company and the Initial Purchaser, as amended,
modified or supplemented from time to time.


“Requisite
Holders” means one or more Holders of at least a majority in principal
amount of the then outstanding Securities.


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


“Restricted
Security” means a Security that constitutes a “restricted security” within
the meaning of Rule 144(a)(3) under the Securities Act; provided, however, that
the Trustee shall be entitled to request and conclusively rely on an Opinion of
Counsel with respect to whether any Security constitutes a Restricted Security.


“Rule
144A” means Rule 144A under the Securities Act.


“SEC”
means the Securities and Exchange Commission.


“Secured
Indebtedness” means the principal of, premium, if any, interest, including
all interest accruing after the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is allowed as a
claim in the proceeding, and rent payable on or in connection with, and all
fees, costs, expenses and other amounts accrued, due or to become due, on or in
connection with secured Indebtedness (including capital lease obligations) of
the Company or any Subsidiary.


“Securities”
means the 8.75% Senior Convertible Notes due 2012 issued by the Company
pursuant to this Indenture.


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the SEC thereunder.


“Security
Agent” means any Registrar, Paying Agent, Conversion Agent or co-Registrar
or co-agent.



 5
 









“Subsidiary”
means a Person in which the Company, directly or indirectly, holds a majority
of the Voting Stock.


“Termination
of Trading” means that the Common Stock or other Capital Stock into which
the Securities are convertible is not listed for trading on a Trading Market.


“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb), as
amended and in effect from time to time.


“Trading
Day” means a day during which trading in securities generally occurs on the
principal Trading Market on which the Common Stock is then listed or quoted.


“Trading
Market” means whichever of the New York Stock Exchange, the American Stock
Exchange, the Boston Stock Exchange, the NASDAQ Global Select Market, the
NASDAQ Global Market, NASDAQ Capital Market or the Over-The-Counter Bulletin
Board on which the Common Stock is listed or quoted for trading on the date in
question.


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


“Units”
means units of the Company’s securities, consisting of a Security and Warrants.


“Volume
Weighted Average Price” means (a) with respect to a specified Trading Day,
the quotient obtained by dividing (i) the sum of the Volume Weighted
Transaction Price for each trade of Common Stock made during such Trading Day
by (ii) the total number of shares of Common Stock traded on such Trading Day,
and (b) with respect to a specified number of Trading Days, the average
Volume Weighted Average Price for such Trading Days, determined by dividing the
sum of the Volume Weighted Average Price for each such Trading Day (determined
in accordance with the foregoing clause (a)) by the number of Trading Days
during such period.


“Volume
Weighted Transaction Price” means, with respect to a particular trade of
Common Stock, the quotient obtained by dividing (a) the product of the number
of shares bought and sold in such transaction, multiplied by the price at which
such shares are bought and sold, divided by (b) the number of shares bought and
sold in such transaction.


“Voting
Stock” of any Person means the total voting power of all classes of the
Capital Stock or other equity securities of such Person entitled to vote
generally in the election of directors of such Person.


“Warrants”
means the warrants to purchase shares of Common Stock, at an initial exercise
price of $4.00 per share, and the warrants to purchase shares of Common Stock,
at an initial exercise price of $5.00 per share, in each case, which are being
issued and sold by the Company, together with the Securities, pursuant to the
Purchase Agreement.


1.2          Other
Definitions.




	
  Term

  	
   

  	
  Defined in SECTION

  
	
  “5% Maximum
  Percentage”

  	
   

  	
  10.2

  
	
  “10% Maximum
  Percentage”

  	
   

  	
  10.2

  
	
  “Additional
  Amounts”

  	
   

  	
  12.5

  
	
  “Additional
  Shares”

  	
   

  	
  10.11

  
	
  “Aggregate
  Redemption Payment Amount”

  	
   

  	
  3.1

  
	
  “Bankruptcy Law”

  	
   

  	
  6.1

  
	
  “Business Day”

  	
   

  	
  13.7

  
	
  “Change in
  Control”

  	
   

  	
  3.8

  
	
  “Conversion
  Agent”

  	
   

  	
  2.3

  
	
  “Conversion Date

  	
   

  	
  10.4

  
	
  “Conversion
  Price Reset Date”

  	
   

  	
  10.8(e)

  
	
  “Custodian”

  	
   

  	
  6.1

  
	
  “Effective Date”

  	
   

  	
  10.11

  
	
  “Event of
  Default”

  	
   

  	
  6.1

  
	
  “Fundamental
  Transaction”

  	
   

  	
  10.13

  
	
  “Global
  Security”

  	
   

  	
  2.1

  
	
  “Legal Holiday”

  	
   

  	
  13.7

  
	
  “Make-Whole
  Payment”

  	
   

  	
  3.1

  
	
  “Notice Date”

  	
   

  	
  3.1

  
	
  “Participants”

  	
   

  	
  2.15

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “Permitted
  Capital Expenditures and Acquisitions

  	
   

  	
  4.8

  
	
  “Physical
  Securities”

  	
   

  	
  2.1

  
	
  “Private
  Placement Legend”

  	
   

  	
  2.17

  
	
  “Provisional
  Redemption”

  	
   

  	
  3.1

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Repurchase at
  Holder’s Option”

  	
   

  	
  3.8

  
	
  “Repurchase
  Triggering Event”

  	
   

  	
  3.8

  
	
  “Redemption
  Price”

  	
   

  	
  3.1

  
	
  “Repurchase
  Date”

  	
   

  	
  3.8

  
	
  “Repurchase
  Price”

  	
   

  	
  3.8

  
	
  “Repurchase
  Right”

  	
   

  	
  3.8

  
	
  “Resale
  Restriction Termination Date”

  	
   

  	
  2.17

  
	
  “Right of
  Repurchase Notice”

  	
   

  	
  3.8

  
	
  “Stock Price”

  	
   

  	
  10.11

  






 



 6
 









 


1.3          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 Securities;


“Indenture
Security Holder” means a Securityholder or a Holder;


“Indenture
to be Qualified” means this Indenture;


“Indenture
Trustee” or “Institutional Trustee” means the Trustee; and


“Obligor”
on the indenture securities means the Company (or any successor).


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 and not
otherwise defined herein have the meanings so assigned to them.


1.4          Rules
of Construction.


Unless
the context otherwise requires:


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


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



 7
 









(c)           “or” is not
exclusive;


(d)           words in the
singular include the plural and in the plural include the singular;


(e)           provisions apply to
successive events and transactions;


(f)            “herein,” “hereof”
and other words of similar import refer to this Indenture as a whole and not to
any particular ARTICLE, SECTION or other subdivision; and


(g)           references to
currency shall mean the lawful currency of the United States of America, unless
the context requires otherwise.


II.  THE SECURITIES


2.1          Form
and Dating.


The
Securities, the Guarantees endorsed thereon and the Trustee’s certificate of
authentication shall be substantially in the respective forms set forth in
EXHIBIT A, which is incorporated in and forms a part of this Indenture. The
Securities and the Guarantees may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication.


Securities
offered and sold in reliance on Rule 144A shall be issued initially in the form
of one or more Global Securities, substantially in the form set forth in
EXHIBIT A (the “Global Security”), deposited with the Trustee, as custodian for
the Depositary, duly executed by the Company and authenticated by the Trustee
as hereinafter provided and bearing the legends set forth in EXHIBITS B-1 and
B-2. The aggregate principal amount of the Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary, as hereinafter provided; provided,
that in no event shall the aggregate principal amount of the Global Security or
Securities exceed $201,250,000 (assuming the maximum aggregate principal amount
of Additional Securities are issued pursuant to the Initial Purchaser’s
Option).


Securities
issued in exchange for interests in a Global Security pursuant to SECTION 2.15
may be issued in the form of permanent certificated Securities in registered
form in substantially the form set forth in EXHIBIT A (the “Physical
Securities”) and, if applicable, bearing any legends required by SECTION
2.17. In no other event shall physical securities be issued.


The
Securities shall bear the legend set forth in EXHIBIT B-3.


2.2          Execution
and Authentication.


One
Officer shall sign the Securities for the Company by manual or facsimile
signature. Typographical and other minor errors or defects in any such
facsimile signature shall not affect the validity or enforceability of any
Security which has been authenticated and delivered by the Trustee. If an
Officer whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall nevertheless be valid. A
Security shall not be valid until authenticated by the manual signature of the
Trustee. The signature of the Trustee shall be conclusive evidence that the
Security has been authenticated under this Indenture. Upon a written order of
the Company signed by one Officer of the Company, the Trustee shall
authenticate Securities for original issue in the aggregate principal amount of
$175,000,000 and such additional principal amount, if any, as shall be
determined pursuant to the next sentence of this SECTION 2.2. Upon receipt by
the Trustee of one or more Officers’ Certificates stating that the Initial
Purchaser has elected to purchase from the Company a specified principal amount
of Additional Securities, not to exceed $26,250,000, pursuant to the Initial
Purchaser’s Option, the Trustee shall authenticate and deliver such specified
principal amount of Additional Securities to or upon the written order of the
Company signed as provided in the immediately preceding sentence. Such Officers’
Certificate must be received by the Trustee not later than the proposed date
for delivering of such Additional Securities. The Company may issue Additional
Securities hereunder without the consent of any Holder.



 8
 









The aggregate
principal amount of Securities outstanding at any time may not exceed
$201,250,000 (assuming the maximum aggregate principal amount of Additional
Securities are issued pursuant to the Initial Purchaser’s Option).


Upon
a written order of the Company signed by two Officers or by an Officer and an
Assistant Secretary or Treasurer of the Company, the Trustee shall authenticate
Securities not bearing the Private Placement Legend to be issued to the
transferee when sold pursuant to an effective registration statement under the
Securities Act as set forth in SECTION 2.16(b).


The
Trustee shall act as the initial authenticating agent. Thereafter, the Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such authenticating agent. An authenticating
agent has the same rights as a Security Agent to deal with the Company and its
Affiliates.


If a
written order of the Company pursuant to this SECTION 2.2 has been, or
simultaneously is, delivered, any instructions by the Company to the Trustee
with respect to endorsement, delivery or redelivery of a Security issued in
global form shall be in writing but need not comply with SECTION 13.4 hereof and
need not be accompanied by an Opinion of Counsel.


The
Securities shall be issuable only in registered form without interest coupons
and only in denominations of $1,000 principal amount and any integral multiple
thereof.


Reference
is made to ARTICLE XII concerning the execution and delivery of the Guarantees.


2.3          Registrar,
Paying Agent and Conversion Agent.


The
Company shall maintain an office or agency in the Borough of Manhattan, The
City of New York, where Securities may be presented for registration of
transfer or for exchange (“Registrar”), an office or agency in the
Borough of Manhattan, The City of New York, where Securities may be presented
for payment (“Paying Agent”) and an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
conversion (“Conversion Agent”). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may appoint or
change one or more co-Registrars, one or more additional Paying Agents and one
or more additional Conversion Agents without notice and may act in any such
capacity on its own behalf. The term “Registrar” includes any co-Registrar; the
term “Paying Agent” includes any additional Paying Agent; and the term “Conversion
Agent” includes any additional Conversion Agent.


The
Company shall enter into an appropriate agency agreement with any Security
Agent not a party to this Indenture. Each such agreement shall implement the
provisions of this Indenture that relate to such Security Agent. The Company
shall notify the Trustee of the name and address of any Security Agent not a
party to this Indenture. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such.


The
Company initially appoints the Trustee as Paying Agent, Registrar and
Conversion Agent.  Notwithstanding
anything contained herein to the contrary, the Company may not act as Paying
Agent prior to payment in full of all Interest due through the fourth interest
payment date immediately following the Issue Date.


2.4          Paying
Agent to Hold Money in Trust.


Each
Paying Agent shall hold in trust for the benefit of the Securityholders or the
Trustee all moneys held by the Paying Agent for the payment of the Principal
Amount and any Interest, 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 shall have
no further liability for the money. If the Company acts as Paying Agent, it
shall segregate and hold as a separate trust fund all money held by it as
Paying Agent.



 9
 









2.5          Securityholder
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 Securityholders.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee
on or before each interest payment date and at such other times as the Trustee
may request in writing a list, in such form and as of such date as the Trustee
may reasonably require, of the names and addresses of Securityholders.


2.6          Transfer
and Exchange.


Subject
to SECTIONS 2.15 and 2.16 hereof, where Securities are presented to the
Registrar with a request to register their transfer or to exchange them for an
equal principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transaction are met. To permit registrations of transfer and
exchanges, the Trustee shall authenticate Securities at the Registrar’s
request. The Company, the Trustee and the Registrar shall not be required to
register the transfer of or exchange any Security that has been selected for
Redemption or for which a Purchase Notice has been delivered, and not
withdrawn, in accordance with this Indenture, except the unredeemed or
unrepurchased portion of Securities being redeemed or repurchased in part.


No
service charge shall be made for any transfer, exchange or conversion of
Securities, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge that may be imposed in
connection with any transfer, exchange or conversion of Securities, other than
exchanges pursuant to SECTIONS 2.10, 9.5 or 10.4, or ARTICLE III, not involving
any transfer.


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


2.7          Replacement
of Securities.


If
the Holder of a Security claims that the Security has been mutilated, lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security, having endorsed thereon a Guarantee duly
executed by the Guarantors, upon surrender to the Trustee of the mutilated
Security, or upon delivery to the Trustee of evidence of the loss, destruction
or theft of the Security satisfactory to the Trustee and the Company. In the
case of lost, destroyed or wrongfully taken Securities, if required by the
Trustee or the Company, an indemnity bond must be provided by the Holder that
is reasonably satisfactory to the Trustee and the Company to protect the
Company, the Trustee or any Security Agent from any loss which any of them may
suffer if a Security is replaced. The Trustee may charge the Holder for its
expenses in replacing a Security.


In
case any such mutilated, lost, destroyed or wrongfully taken Security has
become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to ARTICLE 
III, the Company, in its discretion, may, instead of issuing a new Security,
pay when due, redeem or purchase such Security, as the case may be.


Every
replacement Security is an additional obligation of the Company only as
provided in SECTION 2.8.


2.8          Outstanding
Securities.


Securities
outstanding at any time are all the Securities authenticated by the Trustee
except for those converted, those cancelled by it, those replaced pursuant to
SECTION 2.7, those delivered to it for cancellation and those described in this
SECTION 2.8 as not outstanding. Except to the extent provided in SECTION 2.9, a
Security does not cease to be outstanding because the Company, the Guarantors
or one of its Subsidiaries or Affiliates holds the Security.



 10














If a
Security is replaced pursuant to SECTION 2.7, it ceases to be outstanding
unless the Trustee receives proof satisfactory to it, or a court holds, that
the replaced Security is held by a bona fide purchaser.


If
the Paying Agent (other than the Company) holds on a Redemption Date,
Repurchase Date or Maturity Date, money and, if applicable as provided herein
and in accordance herewith, shares of Common Stock sufficient to pay the
aggregate Redemption Price, Repurchase Price or principal amount, as the case
may be, with respect to all Securities to be redeemed, purchased or paid upon
Redemption, Repurchase at Holder’s Option or maturity, as the case may be, in
each case plus, if applicable, accrued and unpaid interest, if any, and, if
applicable, any Make-Whole Payment payable as herein provided upon Redemption,
or maturity, then (unless there shall be a Default in the payment of such
aggregate Redemption Price, Repurchase Price or Make-Whole Payment, or there
shall be a Default in payment of any principal amount or accrued and unpaid
interest (including, an Interest Payment Default)) on and after such date such
Securities shall be deemed to be no longer outstanding, interest on such
Securities shall cease to accrue, and such Securities shall be deemed paid whether
or not such Securities are delivered to the Paying Agent. Thereafter, all
rights of the Holders of such Securities shall terminate with respect to such
Securities, other than the right to receive the Redemption Price, Repurchase
Price or principal amount, as the case may be, plus, if applicable, such
accrued and unpaid interest, or Make-Whole Payment, in accordance with this
Indenture.


If a
Security is converted in accordance with ARTICLE X, then, from and after the
time of such conversion on the Conversion Date, such Security shall cease to be
outstanding, and interest, if any, shall cease to accrue on such Security;
provided, however, that nothing in this paragraph shall affect the provision in
the Registration Rights Agreement relating to Additional Interest.


2.9          Securities
Held by the Company or an Affiliate.


In
determining whether the Holders of the required aggregate principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any of its Subsidiaries or Affiliates shall be considered as
though not outstanding, except that, for the purposes of determining whether a
Responsible Officer of the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be considered to be outstanding
for purposes of this SECTION 2.9 if the pledgee establishes, to the satisfaction
of the Trustee, the pledgee’s right so to concur with respect to such
Securities and that the pledgee is not, and is not acting at the direction or
on behalf of, the Company, any other obligor on the Securities or an Affiliate
of the Company or any such other obligor. In the event of a dispute as to
whether the pledgee has established the foregoing, the Trustee may conclusively
rely on the advice of counsel or on an Officers’ Certificate.


2.10        Temporary
Securities.


Until
definitive Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for such temporary Securities.


2.11        Cancellation.


The
Company or the Guarantors at any time may deliver Securities to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to
the Trustee any Securities surrendered to them for transfer, exchange, payment
or conversion. The Trustee shall promptly cancel all Securities surrendered for
transfer, exchange, payment, conversion or cancellation in accordance with its
customary procedures. The Company may not issue new Securities to replace
Securities that it or the Guarantors have paid or delivered to the Trustee for
cancellation or that any Securityholder has converted pursuant to ARTICLE X.



 11
 








2.12        Defaulted
Interest.


If
and to the extent the Company defaults in a payment of interest on the
Securities, the Company shall pay the defaulted interest in any lawful manner
plus, to the extent not prohibited by applicable statute or case law, interest
on such defaulted interest at the rate provided in the Securities. The Company
may pay the defaulted interest (plus interest on such defaulted interest) to
the Persons who are Securityholders on a subsequent special record date. The
Company shall fix such special record date and payment date. At least 15
calendar days before the special record date, the Company shall mail to
Securityholders a notice that states the record date, payment date and amount
of interest to be paid.


2.13        CUSIP
Numbers.


The
Company in issuing the Securities may use one or more “CUSIP” numbers,
and, if so, the Trustee shall use the CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided, however, that no representation
is hereby deemed to be made by the Trustee as to the correctness or accuracy of
the CUSIP numbers printed on the notice or on the Securities; provided further,
that reliance may be placed only on the other identification numbers printed on
the Securities, and the effectiveness of any such notice shall not be affected
by any defect in, or omission of, such CUSIP numbers. The Company shall
promptly notify the Trustee in writing of any change in the CUSIP numbers.


2.14        Deposit
of Moneys.


Prior
to 10:00 A.M., New York City time, on each interest payment date, Maturity
Date, Redemption Date or Repurchase Date, the Company shall deposit with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust in accordance with SECTION 2.4) money, in funds immediately
available on such date, and, if applicable as provided herein and in accordance
herewith, shares of Common Stock, sufficient to make cash payments, if any, due
on such interest payment date, Maturity Date, Redemption Date or Repurchase
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such interest payment date, Maturity Date,
Redemption Date or Repurchase Date, as the case may be.  Without limiting the foregoing, on the Issue
Date, the Company shall deposit with the initial Paying Agent (who shall be the
Trustee) money, in immediately available funds, sufficient to make cash
payments due on each of the first two interest payment dates immediately
following the Issue Date.


2.15        Book-Entry
Provisions for Global Securities.


(a)           The Global
Securities initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for such Depositary, and (iii) bear legends required by SECTION 2.17.


Members
of, or participants in, the Depositary (“Participants”) shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Global
Security, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and Participants, the operation of customary practices governing the exercise
of the rights of a Holder of any Security.


(b)           Transfers of Global
Securities shall be limited to transfers in whole, but not in part, to the
Depositary, its successors or their respective nominees. In addition, Physical
Securities shall be transferred to all beneficial owners, as identified by the
Depositary, in exchange for their beneficial interests in Global Securities
only if (i) the Depositary notifies the Company that the Depositary is
unwilling or unable to continue as depositary for any Global Security (or the
Depositary ceases to be a “clearing agency” registered under Section 17A of the
Exchange Act) and a successor Depositary is not appointed by the Company within
90 days of such notice or



 12
 








cessation, or
(ii) an Event of Default has occurred and is continuing and the Registrar has
received a written request from the Depositary to issue Physical Securities.


(c)           In connection with
the transfer of a Global Security in its entirety to beneficial owners pursuant
to SECTION 2.15(b), such Global Security shall be deemed to be surrendered to
the Trustee for cancellation, and the Company shall execute, and the Trustee
shall upon written instructions from the Company authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Security, an equal aggregate principal
amount of Physical Securities of authorized denominations.


(d)           Any Physical
Security constituting a Restricted Security delivered in exchange for an
interest in a Global Security pursuant to SECTION 2.15(b) shall, except as
otherwise provided by SECTION 2.16(b), bear the Private Placement Legend.


(e)           The Holder of any
Global Security may grant proxies and otherwise authorize any Person, including
Participants and Persons that may hold interests through Participants, to take
any action which a Holder is entitled to take under this Indenture or the
Securities.


2.16        Special
Transfer Provisions.


(a)           Restrictions on
Transfer and Exchange of Global Securities. 
Notwithstanding any other provisions of this Indenture, but except as
provided in SECTION 2.15(b), a Global Security may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.


(b)           Private Placement
Legend.  Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities that bear the Private Placement Legend unless (i) the
requested transfer is after the Resale Restriction Termination Date, (ii) there
is delivered to the Trustee and the Company an opinion of counsel reasonably
satisfactory to the Company and addressed to the Company to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act, or (iii)
such Security has been sold pursuant to an effective registration statement
under the Securities Act and the Holder that sold such Securities has delivered
to the Registrar or co-Registrar a notice in the form of EXHIBIT C hereto. Upon
the effectiveness, under the Securities Act, of a Registration Statement (as
defined in the Registration Rights Agreement) relating to the sale of
Securities, the Company shall deliver to the Trustee a notice of effectiveness,
a Global Security or Global Securities representing the principal amount of
Securities covered by such effective Registration Statement which do not bear
the Private Placement Legend, an authentication order in accordance with
SECTION 2.2 and an Opinion of Counsel in customary form, and, if required by
the Depositary, the Company shall deliver to the Depositary a letter of
representations in a form reasonably acceptable to the Depositary. Upon the
effectiveness of any post-effective amendment to the Registration Statement and
upon the effectiveness, under the Securities Act, of any subsequent
Registration Statement, the Company shall deliver to the Trustee a notice of
effectiveness and an Opinion of Counsel in customary form and, if such
post-effective amendment or subsequent Registration Statement covers the sale
of Securities not covered by the initial Registration Statement, one or more
Global Securities relating to such additional Securities.  Upon any sale, pursuant to a Registration
Statement, of a beneficial interest in a Global Security that theretofore
constituted a Restricted Security and delivery of appropriate evidence thereof
to the Trustee, and upon any sale or transfer of a beneficial interest in
connection with which the Private Placement Legend will be removed in
accordance with this Indenture, the Trustee shall increase the principal amount
of the Global Security that does not constitute a Restricted Security by the
principal amount of such sale or transfer and likewise reduce the principal
amount of the Global Security that does constitute a Restricted Security.


(c)           General.  By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.



 13
 








The
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to SECTION 2.15 or this SECTION 2.16. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.


2.17        Restrictive
Legends.


Each
Global Security and Physical Security that constitutes a Restricted Security
shall bear the legend (the “Private Placement Legend”) as set forth in EXHIBIT
B-1 on the face thereof until after the second anniversary of the later of (a)
the Issue Date, and (b) the last date on which the Company or any Affiliate
thereof was the owner of such Security (or any predecessor security) (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws, as set
forth in an Opinion of Counsel, unless otherwise agreed between the Company and
the Holder thereof) (such date, the “Resale Restriction Termination Date”).


Each
Global Security shall also bear the legend as set forth in EXHIBIT B-2.


III.  REDEMPTION; REPURCHASE


3.1          Right
of Redemption.


(a)           Prior to March 8,
2009, the Securities are not redeemable. 
Thereafter, redemption or repurchase of the Securities, as permitted by
any provision of this Indenture, shall be made (i) with respect to a Redemption
at the Company’s option, in accordance with PARAGRAPHS 6 AND 7 of the
Securities, and (ii) with respect to a Repurchase at Holder’s Option in
accordance with PARAGRAPH 8 of the Securities, in each case in accordance with
the applicable provisions of this ARTICLE III. 
Securities in denominations larger than $1,000 principal amount may be
redeemed in part but only in integral multiples of $1,000 principal amount.


(b)           The Company will
comply with all federal and state securities laws, and the applicable laws of
any foreign jurisdiction, in connection with any offer to sell or solicitations
of offers to buy Securities pursuant to this ARTICLE III.


(c)           (i)            The Company shall have the right, at
its option, at any time, and from time to time, on or after the dates set forth
below (any date selected by the Company in accordance with the terms of
PARAGRAPH 6 of the Securities and this ARTICLE III, a “Redemption Date”),
to redeem (a “Provisional Redemption”) up to the corresponding
percentage (based on the aggregate amount of Securities of original issue) of
the Securities set forth below, in any case, at the Redemption Price, plus the
Make-Whole Payment:


	
  DATE

  	
   

  	
  PERCENTAGE OF

  SECURITIES

  	
   

  	
  AGGREGATE PRINCIPAL

  AMOUNT(1)

  	
   

  
	
  March 8, 2009

  	
   

  	
  25

  	
  %

  	
  $

  	
  43,750,000

  	
   

  
	
  March 8, 2010

  	
   

  	
  50

  	
  %(2)

  	
  $

  	
  87,500,000

  	
  (2)

  
	
  March 8, 2011

  	
   

  	
  100

  	
  %(2)

  	
  $

  	
  175,000,000

  	
  (2)

  







(1)          Assumes $175,000,000 aggregate
principal amount of Securities of original issue


(2)          Includes any
previously redeemed Securities


; provided, that,
the Company may not exercise such redemption right unless:  (A) the Volume Weighted Average Price for at
least 20 Trading Days in the 30 consecutive Trading Day period ending on and
including the Trading Day immediately preceding the date (the “Notice Date”)
of mailing of the notice of Provisional Redemption as provided in SECTION 3.4,
exceeds 200% of the Conversion Price in effect on such Notice Date; (B) a
registration statement covering the shares of Common Stock underlying the
Securities called for redemption is effective and available for use for the
90-day period following the Redemption Date, unless registration of such shares
of Common Stock is not required under the Securities Act and applicable state
securities laws; and (C) no continuing Default or Event of Default exists that
has not been cured or waived, in accordance herewith, on or before such



 14
 








Redemption Date
and; provided, further, that, Holders of Securities who are subject to the 10%
Maximum Percentage may, by notice to the Company at least 10 days prior to the
scheduled Redemption Date, extend the Redemption Date with respect to the
portion of their respective Securities that have been called for redemption the
conversion of which is prohibited by the 10% Maximum Percentage,until the later
of (x) the 70th day after the Redemption Date, and (y) the 61st day after the date on which the Company
publicly discloses the number of shares of Common Stock outstanding following
the Redemption Date (which disclosure shall be made pursuant to the last
paragraph of SECTION 3.4 below).


(ii)           With respect to a Security subject to
a Provisional Redemption, the following terms have the following meanings:


“Redemption
Price” means an amount equal to 100% of the then outstanding principal
amount of such Security, plus accrued and unpaid interest (including Additional
Interest), if any, through the applicable Redemption Date.


“Make-Whole
Payment” means an amount equal to 50% of the “present value” of all
remaining scheduled interest payments on such Security from, and including, the
applicable Redemption Date through the Maturity Date.  For purposes hereof, the “present value” will
be calculated using the bond equivalent yield on U.S. Treasury notes or bills
having a term nearest in length to that of the remaining period from the date
preceding the Notice Date to the Maturity Date; provided, however, that if the
period from the Redemption Date to the third anniversary of the issuance of the
Securities is less than one year, the weekly average yield on actually-traded
U.S. Treasury notes or bills adjusted to a constant maturity of one year shall
be used.  The Make-Whole Payment shall be
paid by the Company on all Securities called for Provisional Redemption,
including, without limitation, any Securities (or any portion thereof) that
have been converted into shares of Common Stock on or after the Notice Date and
before such Redemption Date. In no event shall the Make-Whole Payment with
respect to a Security that is called for Provisional Redemption be reduced by
any amount of accrued and unpaid interest; provided, however, that in the event
such Redemption Date is an interest payment date, then the Make-Whole Payment
shall be reduced by any accrued and unpaid interest to, and including, the
Redemption Date, which accrued and unpaid interest shall instead be paid by the
Company on the Redemption Date to the Holder of record of such Security at the
close of business on the record date for such interest payment.


“Aggregate
Redemption Payment Amount” means the sum of the Redemption Price and the
Make-Whole Payment.


(iii)          The Make-Whole Payment may be paid for
in whole or in part, at the election of the Company, in cash or shares of
Common Stock or in any combination of cash and shares of Common Stock;
provided, however, that:


(A)          Unless otherwise
agreed by the Requisite Holders, no portion of the Make-Whole Payment shall be
paid in shares of Common stock unless the conditions set forth in SECTION
3.1(c)(ix) are satisfied;


(B)           the Redemption Price
shall be exclusively paid in cash; and


(C)           The Company will not
issue fractional shares of Common Stock in payment of the Make-Whole Payment
and shall instead round up to the nearest whole number of shares of Common
Stock.


(iv)          Except as provided in this SECTION
3.1(c), once the Company has mailed the notice of Provisional Redemption
specified in SECTION 3.4, the Company shall not change its election set forth
in such notice pursuant to SECTION 3.4(viii) with respect to the portion of the
Make-Whole Payment to be paid in cash or shares of Common Stock.



 15
 








(v)           Except as otherwise provided in this
SECTION 3.1(c), each Holder whose Securities are redeemed pursuant to a
Provisional Redemption shall receive the same percentage of cash and of shares
of Common Stock in payment of the Make-Whole Payment for such Securities.


(vi)          The portion of the Make-Whole Payment
to be paid in shares of Common Stock, if payment in shares of Common Stock is
permitted pursuant to this SECTION 3.1(c), shall be paid by the issuance of a
number of shares of Common Stock equal to a fraction:


(A)          whose numerator is
the dollar amount of such portion of the Make-Whole Payment to be paid in shares
of Common Stock; and


(B)           whose denominator is
the product of (x) of the Volume Weighted Average Price for the 20 consecutive
Trading Days ending on and including the Trading Day immediately preceding the
Redemption Date, which average shall be appropriately adjusted in the good
faith determination of the Board of Directors (whose determination shall be
described in a Board Resolution) to account for the occurrence, during such
20-Trading Day period, of a stock split, stock dividend or a subdivision or combination
of Common Stock; and (y) 90%; provided, however, that fractional shares of
Common Stock shall be rounded up to the nearest whole number of shares of
Common Stock.


(vii)         All shares of Common Stock delivered as
full or partial payment of the Make-Whole Payment pursuant to this SECTION
3.1(c) shall be newly issued shares or treasury shares, shall be duly
authorized, validly issued, fully paid and non-assessable and shall be free
from preemptive rights and free of any Lien or adverse claim.


(viii)        If a Holder is paid in shares of Common
Stock as full or partial payment of the Make-Whole Payment pursuant to this
SECTION 3.1(c), the Company shall pay any documentary, stamp or similar issue
or transfer tax due on such issue of Common Stock. However, the Holder shall
pay any such tax which is due because the Holder requests the Common Stock to
be issued in a name other than the Holder’s name. The Paying Agent may refuse
to deliver the certificates representing the shares of Common Stock being
issued in a name other than the Holder’s name until the Paying Agent receives a
sum sufficient to pay any tax which will be due because the shares of Common
Stock are to be issued in a name other than the Holder’s name. Nothing herein
shall preclude any income tax withholding required by law or regulations.


(ix)           The Company shall not be entitled to
pay any portion of the Make-Whole Payment in shares of Common Stock pursuant to
this SECTION 3.1(c) unless all of the following conditions are satisfied:


(A)          The Company shall have
specified, in the notice of Provisional Redemption specified in SECTION 3.4,
which notice shall have been timely mailed to each Holder whose Securities are
to be redeemed pursuant to the Provisional Redemption, that the Company will
pay all or a portion of the Make-Whole Payment in shares of Common Stock and
shall have specified in such notice the percentages of the Make-Whole Payment
that the Company will pay in cash or shares of Common Stock;


(B)           before a notice of
Provisional Redemption is mailed to Holders pursuant to SECTION 3.4, the
Company shall have delivered an Officers’ Certificate to the Trustee specifying
(x) the manner of payment selected by the Company, (y) the information required
by SECTION 3.4 to be included in the such notice, and (z) if the Company elects
to pay all or a portion of the Make-Whole Payment in shares of Common Stock,
that the conditions to such manner of payment set forth in this SECTION 3.1(c)
have been, or will be, complied with;


(C)           the information
necessary to calculate the Volume Weighted Average Price is published in a
daily newspaper of national circulation or on the website of the Nasdaq Stock
Market or the U.S. national securities exchange which is the principal market
or exchange upon which shares of Common Stock are then traded;



 16
 








(D)          the shares of Common
Stock to be delivered as payment, in whole or in part, of the Make-Whole
Payment shall be either (x) registered under the Securities Act for initial
issuance, unless such registration is not necessary to permit the Holders who
receive such shares and who are not Affiliates of the Company to publicly
resell such shares (for purposes of this SECTION 3.1(c)(ix)(D), resales subject
to the volume, manner of sale or notice restrictions of Rule 144 under the
Securities Act are deemed not to be “public resales”), or (y) registered for
resale pursuant to a registration statement which shall permit resales on a
delayed and/or continuous basis from time to time pursuant to Rule 415 under
the Securities Act, that has become effective under the Securities Act and that
is reasonably expected to remain effective and available for use until at least
the 90th day after the Redemption Date, unless the shares may be publicly sold
without restriction pursuant to Rule 144(k) under the Securities Act;


(E)           the shares of Common
Stock to be delivered as payment, in whole or in part, of the Make-Whole
Payment shall be duly qualified or registered under applicable state securities
laws or shall be qualified for an available exemption from such qualification
and registration;


(F)           the shares of Common
Stock to be delivered as payment, in whole or in part, of the Make-Whole
Payment shall be approved for listing or quotation on the principal Trading
Market that shares of Common Stock are then trading;


(G)           before the close of
business on the Business Day immediately preceding the Redemption Date, the
Trustee shall have received an Officers’ Certificate stating:


(x)            that the conditions in clauses (A),
(B), (C), (D), (E) and (F) above have been satisfied; and


(y)           the number of shares of Common Stock
to be issued for each $1,000 principal amount of Securities to be redeemed and
the Volume Weighted Average Price per share of Common Stock on each Trading Day
in the period during which the Volume Weighted Average Price is calculated
pursuant to this SECTION 3.1(c); and


(H)          before the close of
business on the Business Day immediately preceding the Redemption Date, the
Trustee shall have received an Opinion of Counsel stating that:


(x)            the shares of Common Stock to be
issued by the Company in full or partial payment of the Make-Whole Payment have
been duly authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the Make-Whole Payment, will be validly issued,
fully paid and non-assessable and, to such counsel’s knowledge, free  from preemptive rights; and


(y)           the conditions specified in SECTIONS
3.1(c)(ix)(D), 3.1(c)(ix)(E) and 3.1(c)(ix)(F) have been satisfied; provided,
however, that such Opinion of Counsel need not address whether the shelf
registration statement referred to in SECTION 3.1(c)(ix)(D) is reasonably
expected to remain effective and available for use until at least the 90th day
after the Redemption Date.


If,
prior to the close of business on the Redemption Date, any of the foregoing
conditions are not satisfied with respect to any Holder of Securities subject
to the Provisional Redemption, and the Company has elected, pursuant to this
SECTION 3.1(c), to pay all or a portion of the Make-Whole Payment in shares of
Common Stock, the Company shall pay the entire Make-Whole Payment for such
Securities in cash.


3.2          Notices
to Trustee.


If
the Company elects to redeem Securities pursuant to PARAGRAPH 6 of the
Securities, it shall notify the Trustee at least five Business Days prior to
the mailing, in accordance with SECTION 3.4, of the notice of Redemption
(unless a shorter notice period shall be satisfactory to the Trustee) of the
Redemption Date, the applicable provision of this Indenture pursuant to which
the Redemption is to be made and the aggregate principal amount of Securities
to be redeemed.



 17
 








3.3          Selection
of Securities to be Redeemed.


(a)           If the Company has
elected to redeem less than all the Securities pursuant to PARAGRAPH 6 of the
Securities, the Securities shall be redeemed among the Holders on a pro rata
basis.  The Trustee shall make selection
of the Securities of each Holder to be redeemed from Securities then
outstanding and not already to be redeemed by virtue of having been previously
called for Redemption.  The Trustee may
select for Redemption portions of the principal amount of Securities that have
denominations larger than $1,000 principal amount. Securities and portions of
them the Trustee selects for Redemption shall be in amounts of $1,000 principal
amount or integral multiples of $1,000 principal amount. The Trustee shall
promptly notify the Company in writing of the Securities selected for
Redemption and the principal amount thereof to be redeemed.


(b)           The Company, the
Trustee and the Registrar need not register the transfer of or exchange any
Securities that have been selected for Redemption, except the unredeemed
portion of Securities being redeemed in part. The Company, the Trustee and the
Registrar need not issue, authenticate, register the transfer of or exchange
any Security that has been selected for Redemption.


3.4          Notice
and Public Announcement of Redemption.


(a)           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 Securities are to be redeemed, at the address of such Holder appearing in
the security register.


(b)           The notice shall
identify the Securities and the aggregate principal amount thereof to be
redeemed pursuant to a Redemption and shall state:


(i)            the Redemption
Date;


(ii)           the Aggregate
Redemption Payment Amount;


(iii)          the Conversion
Price;


(iv)          the names and
addresses of the Paying Agent and the Conversion Agent;


(v)           that the right to
convert the Securities called for Redemption will terminate at the close of
business on the second Business Day immediately preceding the Redemption Date,
unless there shall be a Default in the payment of the Aggregate Redemption
Payment Amount or an Interest Payment Default;


(vi)          that Holders who
want to convert Securities must satisfy the requirements of ARTICLE X;


(vii)         the paragraph of the
Securities pursuant to which the Securities are to be redeemed;


(viii)        whether the Company
will pay the Make-Whole Payment in cash or shares of Common Stock or in a
combination thereof, in each case specifying the percentages of the Make-Whole
Payment in respect of which the Company will pay in cash or shares of Common
Stock;


(ix)           where the Company
has stated in the notice pursuant to SECTION 3.4(viii) that the Company will
pay any portion of the Make-Whole Payment in shares of Common Stock, that the
Company will pay the entire Make-Whole Payment in cash if the Company fails to
satisfy the conditions set forth in this Indenture for such payment in shares
of Common Stock;


(x)            that Securities (A)
called for Redemption must be surrendered to the Paying Agent to collect the
Aggregate Redemption Payment Amount; provided, that in no event shall a Holder
that has converted, in accordance herewith, such Holder’s Security into shares
of Common Stock subsequent to the date of



 18
 








the notice of
Redemption, which Security has been called for Provisional Redemption, be
required to surrender any such shares of Common Stock in order to be entitled
to receive the Make-Whole Payment with respect to such Security, and (B) the
manner in which securities should be surrendered;


(xi)           that, unless there
shall be a Default in the payment of the Aggregate Redemption Payment Amount or
an Interest Payment Default, such Securities will cease to be convertible after
the close of business on the second Business Day immediately preceding the
Redemption Date, and all rights of the Holders of such Securities shall
terminate on and after the Redemption Date, other than the right to receive,
upon surrender of such Securities and in accordance with the Indenture, the
Aggregate Redemption Payment Amount; provided, that, in the event a Security
has been called for Provisional Redemption and has been subsequently converted,
in accordance herewith, into shares of Common Stock prior to the Redemption
Date in accordance with the terms hereof, the Holder of record of such Security
at the close of business on the Notice Date shall, in any event and without any
surrender, be entitled to receive, on the Redemption Date, the Make-Whole
Payment with respect to such Security by wire transfer of immediately available
funds, in accordance with PARAGRAPH 3 of the Security, or in shares of Common
Stock in accordance with SECTION 3.1(c)(ix); and


(xii)          the CUSIP number or
numbers, as the case may be, of the Securities to be redeemed.


At
the Company’s Request, upon reasonable prior notice agreed to by the Trustee,
the Trustee shall give or otherwise deliver the notice of Redemption in the
Company’s name and at the Company’s expense; provided, that the form and
content of such notice shall be prepared by the Company.


The
Company shall publicly disseminate a press release and publish on its website
(A) contemporaneously with the mailing of the notice of Redemption, the
aggregate principal amount of Securities to be redeemed and the Redemption
Date, (B) if all or a portion of the Make-Whole Payment is to be made in shares
of Common Stock, on or before the Redemption Date, the actual number of shares
to be delivered in respect thereof and the Volume Weighted Average Price upon
which such number is based, and (C) as soon as possible after the Redemption
Date, the number of shares of Common Stock outstanding after the Redemption
Date.


3.5          Effect
of Notice of Redemption.


(a)           Once notice of
Redemption is mailed, Securities called for Redemption become due and payable
on the Redemption Date at the Aggregate Redemption Payment Amount and, on and
after such Redemption Date (unless there shall be a Default in the payment of
the Aggregate Redemption Payment Amount or an Interest Payment Default), such
Securities shall cease to bear interest, and all rights of the Holders of such
Securities shall terminate, other than the right to receive, upon surrender of
such Securities and in accordance with the next sentence, the Aggregate
Redemption Payment Amount; provided, that, in the event a Security has been
called for Provisional Redemption and has been subsequently converted, in whole
or in part, in accordance herewith, into shares of Common Stock prior to the
Redemption Date, the Holder of record of such Security at the close of business
on the Notice Date shall, in any event and without any surrender of such shares
of Common Stock, be entitled to receive, on the Redemption Date, the Make-Whole
Payment with respect the portion of to such so converted Security by wire
transfer of immediately available funds in accordance with PARAGRAPH 3 of the
Security, or in shares of Common Stock in accordance with Section 3.1(c)(ix)
above. Upon surrender to the Paying Agent of a Security subject to Redemption,
such Security shall be paid, to the Holder surrendering such Security, at the
Aggregate Redemption Payment Amount. If the Redemption Date is an interest
payment date, the Company shall pay, on such Redemption Date, the accrued and
unpaid interest, if any, to, but excluding, the Redemption Date to the Holder
of record of such Security at the close of business on the record date for such
interest payment, and such accrued and unpaid interest shall not be paid to the
Holder submitting such Security for Redemption (unless such Holder was the
Holder of record of such Security at the close of business on the record date
for such interest payment).


(b)           The right, pursuant
to ARTICLE X, to convert Securities called for Redemption shall terminate at
the close of business on the second Business Day immediately preceding the
Redemption Date, unless there shall be a Default in the payment of the
Aggregate Redemption Payment Amount or an Interest Payment Default.


 



 19















 


(c)           If any Security
shall not be fully and duly paid upon surrender thereof for Redemption, the
principal of, and accrued and unpaid interest on, such Security shall, until
paid, bear interest from the Redemption Date at the rate borne by such Security
on the principal amount of such Security, and such Security shall continue to
be convertible pursuant to ARTICLE X; provided, however, that in the case of a
Security that has been called for Provisional Redemption and subsequently
converted, in accordance herewith, into shares of Common Stock prior to the
Redemption Date, only the Make-Whole Payment with respect to the portion of
such Security that has been converted shall bear interest at the rate borne by
such Security prior to such conversion.


(d)           Notwithstanding
anything herein to the contrary, there shall be no purchase of any Securities
pursuant to a Redemption if there has occurred (prior to, on or after, as the
case may be, the mailing of the notice of Redemption specified in SECTION 3.4)
and is continuing an Event of Default (other than a Default in the payment of
the Aggregate Redemption Payment Amount or an Interest Payment Default). The
Paying Agent will promptly return to the respective Holders thereof any
Securities held by it during the continuance of such an Event of Default.


3.6          Deposit
of Redemption Price.


Prior
to 10:00 A.M., New York City time, on the Redemption Date, the Company shall
deposit with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust in accordance with SECTION 2.4) money, in
funds immediately available on the Redemption Date, and, if applicable as
provided herein and in accordance herewith, shares of Common Stock, sufficient
to pay the Aggregate Redemption Payment Amount and, in the case of a
Provisional Redemption on a Redemption Date that is also an interest payment
date, the accrued and unpaid interest, if any, to, but excluding, the
Redemption Date, of all Securities to be redeemed on that date. The Paying
Agent shall return to the Company, as soon as practicable, any money not
required for that purpose.


3.7          Securities
Redeemed in Part.


Any
Security to be submitted for Redemption only in part shall be delivered
pursuant to SECTION 3.5 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or its attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, of the same tenor and in
aggregate principal amount equal to the portion of such Security not submitted
for Redemption.


If
any Security selected for partial Redemption is converted in part, the
principal of such Security subject to Redemption shall be reduced by the
principal amount of such Security that is converted.


3.8          Repurchase
at Holder’s Option.


(a)           In the event any
Change in Control or Termination of Trading (each, a “Repurchase Triggering
Event”) shall occur prior to the Maturity Date, each Holder of Securities
shall have the right (the “Repurchase Right”), at the Holder’s option,
to require the Company to repurchase all of such Holder’s Securities (or
portions thereof that are integral multiples of $1,000 in principal amount) (a “Repurchase
at Holder’s Option”), on a date selected by the Company (the “Repurchase
Date”), which Repurchase Date shall be at least 20 Trading Days following
the date of the Right of Repurchase Notice, but no later than 45 days after the
occurrence of the Repurchase Triggering Event, at a price, payable in cash,
equal to 105% of the principal amount of such Security, plus accrued and unpaid
interest (including any Additional Interest) to, but excluding, the Repurchase
Date (such amount, the “Repurchase Price”).


(b)           Within 15 days after
the Company knows or reasonably should know of the occurrence of a Repurchase
Triggering Event, the Company shall mail, or cause to be mailed, to all Holders
of record (as of the date upon which the Repurchase Triggering Event was
effected or such earlier dated designated by the Company, which date shall be
no more than 60 days prior to the occurrence of the Repurchase Triggering
Event) of the



 20
 









Securities at
their addresses shown in the register of the Registrar, and to beneficial
owners as required by applicable law, a notice (the “Right of Repurchase
Notice”) of the occurrence of such Repurchase Triggering Event and the
Repurchase Right arising as a result thereof. The Company shall deliver a copy
of the Right of Repurchase Notice to the Trustee.  Each Right of Repurchase Notice shall state:


(i)            the events causing
the Repurchase Triggering Event;


(ii)           the date of such
Repurchase Triggering Event;


(iii)          the Repurchase
Date;


(iv)          the Repurchase
Price;


(v)           the date by which
the Repurchase Right must be exercised;


(vi)          that Securities
submitted for Repurchase at Holder’s Option may be converted only if the
Purchase Notice has been withdrawn;


(vii)         the paragraphs of
the Securities pursuant to which the Securities may be submitted for Repurchase
at Holder’s Option;


(viii)        the names and
addresses of the Paying Agent and the Conversion Agent;


(ix)           a description of
the procedure which a Holder must follow to exercise the Repurchase Right;


(x)            that, (A) in order
to exercise the Repurchase Right, the Securities must be surrendered for
payment, and (B) the manner in which Securities should be surrendered;


(xi)           that the Repurchase
Price for any Security as to which a Purchase Notice has been given and not
withdrawn will be paid as promptly as practicable, but in no event more than
three Business Days following the later of the Repurchase Date or the time of
delivery of the Security as described in (x);


(xii)          that, unless there
shall be a Default in the payment of the Repurchase Price or an Interest
Payment Default, interest on Securities subject to Repurchase at Holder’s
Option will cease to accrue on and after the Repurchase Date and all rights of
the Holders of such Securities shall terminate on and after the Repurchase
Date, other than the right to receive, upon surrender of such Securities and in
accordance with the Indenture, the Repurchase Price;


(xiii)         that a Holder will
be entitled to withdraw its election to exercise the Repurchase Right if the
Company (if acting as its own Paying Agent) or the Paying Agent receives, prior
to the close of business on the second Business Day immediately preceding the
Repurchase Date, or such longer period as may be required by law, a letter or
facsimile transmission (receipt of which is confirmed and promptly followed by
a letter) setting forth (A) the name of such Holder, (B) a statement that such
Holder is withdrawing its election to have Securities repurchased, (C) the
principal amount of the Securities of such Holder to be so withdrawn, which
amount must be $1,000 or an integral multiple thereof, (D) the certificate
number of such Securities to be so withdrawn, and (E) the principal amount, if
any, of the Securities of such Holder that remain subject to the Purchase
Notice delivered by such Holder in accordance with this SECTION 3.8, which
amount must be $1,000 or an integral multiple thereof;


(xiv)        the Conversion Price
as in effect immediately following the Repurchase Triggering Event (after
giving effect to any adjustments required by Section 10.8 below);


(xv)         that Holders who want
to convert Securities must satisfy the requirements of ARTICLE X;



 21
 









(xvi)        if the Repurchase
Triggering Event is a Change in Control, whether Additional Shares are issuable
upon any conversion of Securities made in connection with such Change in
Control and, if so, the number of Additional Shares issuable in respect of each
$1,000 principal amount of converted Securities; and


(xvii)       the CUSIP number or
numbers, as the case may be, of the Securities.


At
the Company’s Request, the Trustee shall mail or otherwise deliver such Right
of Repurchase Notice in the Company’s name and at the Company’s expense;
provided, however, that, in all cases, the text of such Right of Repurchase
Notice shall be prepared by the Company. 
No failure of the Company to give a Right of Repurchase Notice shall
limit any Holder’s right to exercise a Repurchase Right.


(c)           Repurchase of
Securities as to which a Holder has exercised his, her or its Repurchase Right
shall occur upon:


(i)            delivery to the
Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Right of Repurchase Notice,
no later than the close of business on the Business Day immediately preceding
the Repurchase Date, of a Purchase Notice, in the form set forth in the
Securities or any other form of written notice substantially similar thereto,
in each case, duly completed and signed, with appropriate signature guarantee,
stating:  (A) the certificate number(s)
of the Securities which the Holder will deliver to be repurchased;  (B) the principal amount of Securities to be
repurchased, which must be $1,000 or an integral multiple thereof; and  (C) that such principal amount of Securities
are to be repurchased pursuant to the terms and conditions specified in
PARAGRAPH 9 of the Securities and in this Indenture; and


(ii)           delivery to the
Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Right of Repurchase Notice,
at any time after the delivery of such Purchase Notice, of such Securities
(together with all necessary endorsements) with respect to which the Repurchase
Right is being exercised, such delivery being a condition to receipt by the
Holder of payment as herein provided.


If
such Securities are held in book-entry form through the Depositary, the
Purchase Notice shall comply with applicable procedures of the Depositary.


Upon
such delivery of Securities to the Company (if it is acting as its own Paying
Agent) or such Paying Agent, such Holder shall be entitled to receive, upon
request by such Holder, from the Company or such Paying Agent, as the case may
be, a nontransferable receipt of deposit evidencing such delivery.


Notwithstanding
anything herein to the contrary, any Holder delivering the Purchase Notice
contemplated by this SECTION 3.8(c) to the Company (if it is acting as its own
Paying Agent) or to a Paying Agent designated by the Company for such purpose
in the Right of Repurchase Notice shall have the right to withdraw such
Purchase Notice by delivery, at any time prior to the close of business on the second
Business Day immediately preceding the Repurchase Date, of a written notice of
withdrawal to the Company (if acting as its own Paying Agent) or the Paying
Agent, which notice shall contain the information specified in SECTION
3.8(b)(xiii).


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


(d)           Subject to the
provisions of this SECTION 3.8, the Company shall pay, or cause to be paid, the
Repurchase Price with respect to each Security as to which the Repurchase Right
shall have been exercised to the Holder thereof as promptly as practicable, but
in no event more than three Business Days, following the later of the
Repurchase Date and the time such Security is surrendered to the Paying Agent.


(e)           Prior to 10:00 A.M.,
New York City time on a Repurchase Date, the Company shall deposit with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust in accordance with SECTION 2.4) money, in funds immediately
available on the Repurchase Date sufficient to pay the Repurchase Price of all
of the Securities that are to be repurchased by the Company on such Repurchase
Date



 22
 









pursuant to a
Repurchase at Holder’s Option and, in the case that such Repurchase Date is
also an interest payment date, the accrued and unpaid Interest, if any, to but
excluding the Repurchase Date, of all Securities to be repurchased on that
date.  The Paying Agent shall return to
the Company, as soon as practicable, any money not required for that purpose.


(f)            Once the Right of
Repurchase Notice and the Purchase Notice have been duly given in accordance
with this SECTION 3.8 (unless a Holder timely withdraws such Holder’s election
to exercise the Repurchase Right or there shall be a default in payment of the
Repurchase Price or an Interest Payment Default), on and after the Repurchase
Date, Securities to be repurchased shall cease to bear interest and shall cease
to be convertible pursuant to ARTICLE X, and all rights of the Holders of such
Securities shall terminate, other than the right to receive, in accordance with
this SECTION 3.8, the payment herein provided.


(g)           Upon surrender to
the Paying Agent of a Security submitted for Repurchase at Holder’s Option,
such Security shall be paid, to the Holder submitted such Security, at the
Repurchase Price; provided, that, if the Repurchase Date is an interest payment
date, the Company shall pay, on such Repurchase Date, the accrued and unpaid
interest if any, to, but excluding the Repurchase Date to the Holder of record
of such Security at the close of business on the record date for such interest
payment, and such accrued and unpaid interest shall not be paid to the Holder
submitting the Security for Repurchase at Holder’s Option (unless such Holder
was the Holder of record of such Security at the close of business on the
record date for such interest payment).


(h)           The right, pursuant
to ARTICLE X, to convert Securities submitted for Repurchase at Holder’s Option
shall terminate at the close of business on the second Business Day immediately
preceding the Repurchase Date, unless there shall be a Default in the payment
of the Repurchase Price or an Interest Payment Default.


(i)            Any Security which
is to be submitted for Repurchase at Holder’s Option only in part shall be
delivered pursuant to this SECTION 3.8 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, of the
same tenor and in aggregate principal amount equal to the portion of such
Security not submitted for Repurchase at Holder’s Option.  If any Security submitted for partial
Repurchase at Holder’s Option is converted in part, the principal of such
Security subject to Repurchase at Holder’s Option shall be reduced by the
principal amount of such Security that is converted.


(j)            If  any Security shall not be fully and duly paid
upon surrender thereof for Repurchase at Holder’s Option Upon a Change of
Control, the principal of, and accrued and unpaid Interest on, such Security
shall, until paid, bear interest from the Repurchase Date at the rate borne by
such Security on the principal amount of such Security, and such Security shall
continue to be convertible pursuant to ARTICLE X.


(k)           Notwithstanding
anything herein to the contrary, there shall be no purchase of any Securities
pursuant to this SECTION 3.8 if there has occurred (prior to, on or after, as
the case may be, the giving, by the Holders of such Securities, of the required
Purchase Notice) and is continuing an Event of Default (other than a Default in
the payment of the Repurchase Price or an Interest Payment Default).  The Paying Agent will promptly return to the
respective Holders thereof any Securities held by it during the continuance of
an Event of Default (other than a Default in the payment of the Repurchase
Price or an Interest Payment Default), in which case, upon such return, the
Purchase Notice with respect to the Repurchase at Holder’s Option shall be
deemed to have been withdrawn.


(l)            Notwithstanding
anything herein to the contrary, if the option granted to Holders to require
the repurchase of the Securities upon the occurrence of a Change in Control is
determined to constitute a tender offer, the Company shall comply with all
applicable tender offer rules under the Exchange Act, including Rule 13e-4 and
Regulation 14E, and with all other applicable laws, and will file a Schedule TO
or any other schedules required under the Exchange Act or any other applicable
laws.



 23
 









(m)          As used herein and in
the Securities, a “Change in Control” shall be deemed to have occurred
at such time as:


(i)            after the Issue
Date, any “person” or “group” (as such terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act) together with any Affiliates thereof is or
becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the
Exchange Act), directly or indirectly, of more than 50% of the total voting
power of all classes of the Company’s Capital Stock entitled to vote generally
in the election of directors;


(ii)           unless approved by
the Requisite Holders, any change in the size or composition of the Company’s
Board of Directors, the effect of which is that fewer than a majority of the
members of the Company’s Board of Directors following the change are Continuing
Directors;


(iii)          the Company
consolidates with, or merges with or into, another person or any person
consolidates with, or merges with or into, the Company, in any such event other
than pursuant to a transaction where the persons that “beneficially owned,”
directly or indirectly, the shares of the Company’s Voting Stock immediately
prior to such transaction, “beneficially own,” directly or indirectly,
immediately after such transaction, shares of the continuing, surviving or
acquiring corporation’s Voting Stock representing at least a majority of the
total voting power of all outstanding classes of the Voting Stock of the
continuing, surviving or acquiring corporation and such persons “beneficially
own” such shares in substantially the same proportion as such ownership
immediately prior to the transaction; or


(iv)          the sale, transfer,
lease, exchange, conveyance or other disposition of all or substantially all of
the assets of the Company to any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), including 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;


provided,
that, a merger or consolidation shall not be deemed to constitute a Change in
Control, if (A) at least 90% of the consideration (excluding cash payments for
fractional shares or pursuant to statutory appraisal rights) in the merger or
consolidation consists of Capital Stock which is traded or quoted on a Trading
Market (or which will be so traded or quoted when issued or exchanged in
connection with such Change in Control), and (B) as a result of such
transaction the obligations of the Company under the Securities and this
Indenture are expressly assumed by the Person issuing such consideration, and
(C) any Securities surrendered for conversion would become convertible into
such publicly traded Capital Stock.


3.9          No
Sinking Fund.


The
Securities shall not have a sinking fund.


IV.  COVENANTS


4.1          Payment
of Securities.


The
Company shall pay all amounts due with respect to the Securities on the dates
and in the manner provided in the Securities. All such amounts shall be
considered paid on the date due if the Paying Agent holds (or, if the Company
is acting as Paying Agent, the Company has segregated and holds in trust in
accordance with SECTION 2.4) on that date money (and, if applicable as provided
herein and in accordance herewith, shares of Common Stock) sufficient to pay
the amount then due with respect to the Securities (unless there shall be a
Default in the payment of such amounts to the respective Holder(s)). The
Company shall pay interest on any overdue amount (including, to the extent
permitted by applicable law, overdue interest) at the rate borne by the
Securities.


4.2          Maintenance
of Office or Agency.


The
Company will maintain in the Borough of Manhattan, the City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-Registrar) where



 24
 









Securities may be
surrendered for registration of transfer or exchange or conversion and where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.


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


The
Company hereby designates the Corporate Trust Office of the Trustee as an
agency of the Company in accordance with SECTION 2.3.


4.3          Rule
144A Information and Annual Reports.  So long as any of the Securities remain
outstanding:


At
any time when the Company is not subject to Sections 13 or 15(d) of the
Exchange Act, the Company shall promptly provide to the Trustee and shall, upon
request, provide to any Holder, beneficial owner or prospective purchaser of Securities
or shares of Common Stock issued upon conversion of any Securities, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to facilitate the resale of such Securities or shares of Common
Stock pursuant to Rule 144A. The Company shall take such further action as any
Holder or beneficial holder of such Securities or shares of Common Stock may
reasonably request to the extent required from time to time to enable such
Holder or beneficial holder to sell its Securities or shares of Common Stock in
accordance with Rule 144A, as such rule may be amended from time to time.


The
Company shall, in accordance with TIA §§ 314(a), deliver to the Trustee, within
15 calendar days after the Company is required to file such annual and
quarterly reports, information, documents and other reports with the SEC,
copies of the Company’s annual and quarterly reports (which shall contain
audited financial statements of the Company) and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act;
provided, however, that the Company shall not be required to deliver to the
Trustee any material for which the Company has sought and received confidential
treatment by the SEC. In the event the Company is at any time no longer subject
to the reporting requirements of Section 13 or Section 15(d) of the Exchange
Act, the Company shall continue to provide the Trustee and to each Holder,
within 30 calendar days after the Company would have been required to file such
reports with the SEC, annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been included
in reports filed with the SEC if the Company were subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act, including,
with respect to annual information only, a report thereon by the Company’s
certified independent public accountants as would be required in such reports
filed with the SEC and, in each case, together with a management’s discussion
and analysis of financial condition and results of operations which would be so
required. The Company also shall comply with the other provisions of TIA §§
314(a).


4.4          Compliance
Certificate.


The
Company shall deliver to the Trustee, within 90 calendar days after the end of
each fiscal year of the Company, or, if earlier, by the date the Company is, or
would be, required to file with the SEC the Company’s annual report (whether on
Form 10-K under the Exchange Act or another appropriate form) for such fiscal
year, an Officers’ Certificate, one of the signers of which shall be the
principal executive officer, principal financial officer or principal
accounting officer of the Company, stating whether or not the signers know of
any Default or Event of Default by the Company in performing any of its
obligations under this Indenture or the Securities. If they do know of any such
Default or Event of Default, the certificate shall describe the Default or
Event of Default and its status.



 25
 









4.5          Stay,
Extension and Usury Laws.


The
Company covenants (to the extent that it may lawfully do so) that it will 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, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law has
been enacted.


4.6          Corporate
Existence; Conduct of Business.


The
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect (a) its corporate existence and the corporate,
partnership, limited partnership and/or limited liability company existence of
each of the Subsidiaries, and (b) the rights (charter and statutory), licenses
and franchises of the Company and each of the Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, if, in the good faith judgment of the Board of Directors, the loss
of such right, license or franchise does not have a material adverse impact on
the Holders.


The
Company (a) will, and will cause each of its Subsidiaries to, conduct its
business (as operated as of the Issue Date) in the ordinary course, and (b)
will not, and will not permit any of its Subsidiaries to, suspend or otherwise
cease conducting any substantial portion of its currently existing business.


4.7          Indebtedness
and Liens.


The
Company will not, and will not permit any Subsidiary to, directly or
indirectly, (a) create, incur, assume, guaranty, or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness except Permitted
Indebtedness, or (b) create, incur, assume or permit to exist, any Lien on or
with respect to any of its assets, of any kind, whether now owned or hereafter
acquired, except for Permitted Liens.


4.8          Acquisitions
and Capital Expenditures.


The
Company will not, and will not permit any Subsidiary to, directly or
indirectly, (a) make Capital Expenditures in any fiscal year in excess of
$10,000,000 in the aggregate, or (b) in any transaction or related series of
transactions, acquire or invest in the Capital Stock or any assets or business
of any Person (an “Acquisition”); provided, that, with respect to the fiscal
years set forth below, so long as no Default or Event of Default is then
continuing, the Company and/or one or more Subsidiaries may make Capital
Expenditures and/or Acquisitions which (i) do not, individually or in the
aggregate, exceed an amount equal to 25% of the amount, if any, by which the
Company’s EBITDA for its immediately preceding fiscal years exceeds the
corresponding threshold amount set below (which amount will be in addition to
the $10,000,000 amount referred to above in clause (a)), and (ii) will not,
individually or in the aggregate, result in a Default or Event of Default, or
result in a default with respect to, or give rise to the right of any other
Person to accelerate any the payment of, any Indebtedness of the Company or any
Subsidiary.  For purposes of the
foregoing, (A) Common Stock used in making any Capital Expenditure or
Acquisition will be valued at the Volume Weighted Average Price for the 10
Trading Days ending on and including the Trading Day immediately preceding the
date of the Capital Expenditure or Acquisition, as applicable, (B) Common Stock
Equivalents used in making any Capital Expenditure or Acquisition will be
valued by reference to the aggregate number of shares of Common Stock issuable
upon full exercise, conversion or exchange thereof and the foregoing clause
(A), and (C) other non-cash assets used in making any Capital Expenditure or
Acquisition will be valued at the fair market value thereof as determined by
the Board of Directors in good faith. 
Capital Expenditures and Acquisitions made in compliance with the
foregoing are referred to as “Permitted Capital Expenditures and
Acquisitions.”  




	
  FISCAL YEAR

  ENDING APRIL 30,

  	
   

  	
  THRESHOLD EBITDA

  FOR PRIOR FISCAL YEAR

  	
   

  
	
  2008

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  2009

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  2010

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
  2011

  	
   

  	
  $

  	
  100,000,000

  	
   

  






 



 26
 









4.9          No
Subsidiaries.


Except
with the prior written consent of the Requisite Holders, the Company will not
create or acquire any Subsidiary unless such Subsidiary shall become a
Guarantor.


4.10        Payment
of Taxes.


The
Company will cause all assessments and taxes, whether real, personal or
otherwise, due or payable by, or imposed, levied or assessed against the
Company, any Subsidiary or any of their respective assets to be paid in full
before delinquency or before the expiration of any extension period, except to
the extent that the Company or its Subsidiary, as applicable, is diligently
contesting such assessments or taxes in good faith and a reserve with respect
to such obligation is established on the books of the Company or such Subsidiary,
as applicable, in such amount as is required by GAAP.


4.11        Transactions
with Affiliates.


The
Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets, property
or services) with or for the benefit of any Affiliate of the Company or any
Subsidiary unless such transaction or series of related transactions is entered
into in good faith and (a) such transaction or series of related transactions
is on terms that are no less favorable to the Company or such Subsidiary, as
the case may be, than those that would be available in a comparable transaction
in arm’s-length dealings with an unrelated third party, (b) with respect to any
transaction or series of related transactions involving $1,000,000 or more in
the aggregate, the Company delivers an Officers’ Certificate to the Trustee
certifying that such transaction or series of related transactions complies
with clause (a) above, and (c) with respect to any transaction or series or
related transactions involving $10,000,000 or more in the aggregate, either (i)
such transaction or series of related transactions has been approved by a majority
of the disinterested members of the Company’s Board of Directors, or (ii) the
Company delivers to the Trustee a written opinion of an investment banking firm
of national standing or other recognized independent expert with experience
appraising the terms and conditions of the type of transaction or series of
related transactions for which an opinion is required stating that the
transaction or series of related transactions are fair to the Company or such
Subsidiary from a financial point of view; provided, however, that clauses (a)
through (c) above shall not apply to (A) any transactions with an employee or
director of the Company or any Subsidiary entered into in the ordinary course
of business (including compensation and employee benefit arrangements with any
officer, director or employee of the Company or any Subsidiary, including under
any stock option or stock incentive plans), or (ii) transactions between or
among the Company and/or its Subsidiaries.


4.12        Distributions
and Redemptions.


The
Company will not (and will not permit any of its Subsidiaries to) make any
distribution or declare or pay any dividends (in cash or other property, other
than common stock) on, or purchase, acquire, redeem, or retire any Capital
Stock of the Company or any Subsidiary of any class, or any Junior Debt, in
either case, whether now or hereafter outstanding, or pay any management or
similar fees, except for (a) distributions or the declaration and payment of
dividends by any Subsidiary to the Company, (b) dividends required pursuant to
the terms of the Company’s Series D Preferred Stock, (c) redemption of the
Company’s Series D Preferred Stock, and (d) payments made to Holders pursuant
to the terms hereof and the terms of the Securities (including Additional
Interest).


4.13        Sale
of Assets; Liquidation.


Except
with the prior written consent of the Requisite Holders, the Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, sell,
transfer, convey or otherwise dispose of any assets or property (including the
Capital Stock of a Subsidiary) except for transfers to the Company or a
Subsidiary, or



 27
 









liquidate,
dissolve or wind up the Company or any Subsidiary, whether voluntary or
involuntary; provided, however, that the foregoing shall not prohibit the sale
of any assets or properties in the ordinary course of business.


4.14        Notice
of Default.


In
the event that any Default or Event of Default shall occur, the Company will
give prompt written notice of such Default or Event of Default, and any remedial
action proposed to be taken, to the Trustee.


4.15        Further
Instruments and Acts.


Upon
request of the Trustee, the Company shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purposes of this Indenture.


V.  SUCCESSORS


5.1          When
the Company May Merge, Etc.


The
Company shall not consolidate with, or merge with or into, or sell, transfer,
lease, convey or otherwise dispose of all or substantially all of the property
or assets of the Company (including, without limitation, Capital Stock of the
Subsidiaries) to, another person, whether in a single transaction or series of
related transactions, unless the Company is the surviving entity in such
transaction or (a) such other person is a corporation organized under the laws
of the United States, any State thereof or the District of Columbia; (b) such
person assumes by supplemental indenture all the obligations of the Company
under the Securities and this Indenture; (c) the Capital Stock of such person
is listed or quoted for trading on a Trading Market; and (d) immediately after
giving effect to the transaction, no Default or Event of Default shall exist.


The
Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of
Counsel (which may rely upon such Officers’ Certificate as to the absence of
Defaults and Events of Default) stating that the proposed transaction and such
supplemental indenture will, upon consummation of the proposed transaction,
comply with this Indenture.


5.2          Successor
Substituted.


Upon
any consolidation, merger or any sale, transfer, lease, conveyance or other
disposition of all or substantially all of the property or assets of the
Company, the successor person formed by such consolidation or into which the
Company is merged or to which such sale, transfer, lease, conveyance or other
disposition is made shall succeed to, and, except in the case of a lease, be
substituted for, and may exercise every right and power of, and shall assume
every duty and obligation of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein. When the
successor assumes all obligations of the Company hereunder, except in the case
of a lease, all obligations of the predecessor shall terminate.


VI.  DEFAULTS AND REMEDIES


6.1          Events
of Default.


An “Event
Of Default” occurs if:


(a)           the Company fails to
pay the principal of any Security when the same becomes due and payable,
whether at maturity, upon Redemption, on a Repurchase Date with respect to a
Repurchase at Holder’s Option or otherwise;


(b)           the Company fails to
pay Interest on any Security when due, if such failure continues for five
Business Days after the date when due;



 28
 









(c)           the Company fails to
timely provide a Right of Repurchase Notice, as required by the provisions of
this Indenture;


(d)           the Company defaults
in the performance of its obligations under the Registration Rights Agreement
and such default continues for 30 days after written notice to the Company by
the Trustee or to the Company and the Trustee by the Requisite Holders;
provided, that, the Company’s failure to register for resale all of the
Registrable Securities (as such term is defined in the Registration Rights
Agreement) within 180 days following the Issue Date shall, by itself, not be
deemed a default for purposes of this SECTION 6.1(d) if (i) such failure is by
reason of a 415 Reduction (as such term is defined in the Registration Rights
Agreement), and (ii) the Company is in compliance with Section 7 of the
Registration Rights Agreement;


(e)           the Company defaults
in its obligation to (a) repurchase any Security on a Repurchase Date with
respect to a Repurchase at Holder’s Option or otherwise, or (b) convert the
Securities pursuant to SECTION 10.1 and such default continues for a period of
10 days;


(f)            the Company
defaults in its obligation to redeem any Security after exercise of its option
to redeem;


(g)           the Company fails to
perform or observe any of the covenants in SECTIONS 4.1, 4.5, 4.7, 4.8, 4.11,
4.12 or 4.13;


(h)           the Company fails to
perform or observe any of the covenants in SECTIONS 4.2, 4.3, 4.4, 4.6, 4.9,
4.10, 4.14, or 4.15 for 30 days after written notice to the Company by the
Trustee or to the Company and the Trustee by one or more Holders of at least
25% in principal amount of the then outstanding Securities;


(i)            the Company or any
of its Subsidiaries defaults in the payment when due and payable, after the
expiration of any applicable grace period, of principal of, or premium, if any,
or interest on, Indebtedness, in the aggregate principal amount then
outstanding of $10,000,000 or more, or the acceleration of Indebtedness of the
Company or any of its Subsidiaries in such aggregate principal amount or more
so that it becomes due and payable prior to the date on which it would
otherwise become due and payable and such default is not cured or waived, or
such acceleration is not rescinded, within 30 days after notice to the Company
by the Trustee or to the Company and the Trustee by the Requisite Holders, each
in accordance with this Indenture;


(j)            the Company or any
of its Subsidiaries fails to pay final judgments rendered against it or them,
the uninsured portion of which aggregates in excess of $10,000,000, and such
judgments are not paid, discharged or stayed or an appeal has not been filed,
within 30 days; or


(k)           the Company or any
of its Subsidiaries pursuant to, or within the meaning of, any Bankruptcy Law,
insolvency law or other similar law now or hereafter in effect or otherwise:


(i)            commences a
voluntary case;


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


(iii)          consents to the
appointment of a Custodian of it or for all or substantially all of its
property or assets; or


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


(v)           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 Subsidiaries in an involuntary case or proceeding, or
adjudicates the Company or any of its Subsidiaries insolvent or bankrupt;


 



 29















(B)           appoints a Custodian
of the Company or any of its Subsidiaries for all or substantially all of the
property or assets of the Company or any of its Subsidiaries; or


(C)           orders the winding
up or liquidation of the Company or any of its Subsidiaries; and in the case of
each of the foregoing clauses (A), (B) and (C) of this SECTION 6.1(k)(v), the
order or decree remains unstayed and in effect for at least 60 consecutive
days.


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


When
a Default is cured, it ceases.


6.2          Acceleration.


If
an Event of Default, including, without limitation, an Event of Default
specified in SECTION 6.1(i), but excluding an Event of Default specified in
SECTION 6.1(k) occurs and is continuing, the Trustee by notice to the Company,
or one or more Holders of at least 25% in principal amount of the then outstanding
Securities by notice to the Company and the Trustee, may declare the Securities
to be immediately due and payable in full. Upon such declaration, the principal
of, premium, if any, and any accrued and unpaid interest on, all Securities
shall be due and payable immediately. If an Event of Default specified in
SECTION 6.1(k) occurs, the principal of, premium, if any, and any accrued and
unpaid interest on, all the 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. The Requisite Holders by written notice to the
Trustee may rescind or annul an acceleration and its consequences if (a) the
rescission would not conflict with any order or decree, (b) all existing Events
of Default, except the nonpayment of principal or interest that has become due
solely because of the acceleration, have been cured or waived by the Requisite
Holders, and (c) all amounts due to the Trustee under SECTION 7.7 have been
paid.


6.3          Other
Remedies.


Notwithstanding
any other provision of this Indenture, if an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of amounts due with respect to the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.


The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder 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.


6.4          Waiver
of Defaults.


Subject
to SECTIONS 6.7 and 9.2, the Requisite Holders may, by notice to the Trustee,
waive any Default or Event of Default and its consequences, other than (a) a
Default or Event of Default in the payment of the principal of, or premium, if
any, or interest or additional interest on, any Security, or in the payment of
the Redemption Price or the Repurchase Price (or accrued and unpaid interest,
if any, payable as herein provided upon Redemption or Repurchase at Holder’s
Option), (b) a Default or Event of Default arising from a failure by the
Company to convert any Securities into shares of Common Stock in accordance
with this Indenture, or (c) any Default or Event of Default in respect of any
provision of this Indenture or the Securities which, under SECTION 9.2, cannot
be modified or amended without the consent of the Holder of each outstanding
Security affected. When a Default or an Event of Default is waived, it is cured
and ceases. This SECTION 6.4 shall be in lieu of TIA §316(a)(1)(B), and TIA
§316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by
the TIA.



 30
 









6.5          Control
by Majority.


The
Requisite Holders may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, is unduly prejudicial to the rights
of other Holders or would involve the Trustee in personal liability unless the
Trustee is offered indemnity reasonably satisfactory to it; provided, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. This SECTION 6.5 shall be in lieu of TIA
§316(a)(1)(A), and TIA §316(a)(1)(A) is hereby expressly excluded from this
Indenture, as permitted by the TIA.


6.6          Limitation
on Suits.


Except
as provided in SECTION 6.7, a Holder may not institute any proceeding under
this Indenture, or for the appointment of a receiver or a trustee, or for any
other remedy under this Indenture unless:


(a)           the Holder gives to
the Trustee written notice of a continuing Event of Default;


(b)           the Requisite
Holders make a written request to the Trustee to pursue the remedy;


(c)           such Holder or
Holders offer and, if requested, provide to the Trustee security or indemnity
reasonably satisfactory to the Trustee against any loss, cost, liability or
expense;


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


(e)           during such 60-day
period, the Requisite Holders do not give the Trustee a direction inconsistent
with the request.


A
Securityholder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.


6.7          Rights
of Holders to Receive Payment.


Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of all amounts due with respect to the Securities, on or after the
respective due dates as provided herein, 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 the Holder.


Notwithstanding
any other provision of this Indenture, the right of any Holder to bring suit
for the enforcement of the right to convert the Security in accordance with
this Indenture shall not be impaired or affected without the consent of the
Holder.


6.8          Collection
Suit by Trustee.


If
an Event of Default specified in SECTION 6.1(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount due with respect to
the Securities, including any accrued and unpaid interest.


6.9          Trustee
May File Proofs of Claim.


The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee, any
predecessor Trustee and the Holders allowed in any judicial proceedings
relative to the Company or its creditors or properties.



 31
 









The
Trustee may collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in
any 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 the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under SECTION 7.7.


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 Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.


6.10        Priorities.


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


First:  to the Trustee for amounts due under SECTION
7.7;


Second:  to Securityholders, on a pro rata basis, for
all amounts due and unpaid on the Securities, without preference or priority of
any kind, according to the amounts due and payable on the Securities; and


Third:  to the Company.


The
Trustee, upon prior written notice to the Company, may fix a record date and
payment date for any payment by it to Securityholders pursuant to this SECTION
6.10.


6.11        Undertaking
for Costs.


In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
a court, in its discretion, may require the filing by any party litigant in the
suit other than the Trustee 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 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to SECTION 6.7 or a suit by Holders of more than 10%
in aggregate principal amount of the outstanding Securities.


VII.  TRUSTEE


7.1          Duties
of Trustee.


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


Except
during the continuance of an Event of Default:


(a)           the duties of the
Trustee shall be determined solely by the express provisions of this Indenture
and the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and


(b)           in the absence of
bad faith on its part, the Trustee may conclusively rely, without
investigation, as to the truth or the statements and the correctness of the
opinions expressed therein, upon and statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture
but need not verify the contents thereof.



 32
 









However,
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
examine the certificates and opinions to determine whether or not they conform
on their face to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).


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


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


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


(iii)          the Trustee shall
not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant to SECTION 6.2,
6.4 or 6.5.


The
foregoing provisions shall be in furtherance of TIA § 313.  Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (i), (ii) and (iii) of this SECTION 7.1 and SECTION 7.2.


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 pursuant to the provisions of this Indenture, including,
without limitation, SECTION 6.5, unless such Holder’s shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability
or expense which might be incurred by it in compliance with such request or
direction.


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.


7.2          Rights
of Trustee.


(a)           The
Trustee may conclusively rely and shall be 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 Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel. The Trustee may consult with counsel of its
own selection and the advice of such counsel and Opinions of Counsel with
respect to legal matters relating to this Indenture and the Notes 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, accountants, experts and such other
professionals as the Trustee deems necessary, advisable or appropriate and
shall not be responsible for the misconduct or negligence of any attorney,
accountant, expert or other such professional appointed with due care.


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


(e)           Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficiently evidenced by a
written order signed by one Officer of the Company and any request from the
Guarantors, shall be sufficiently evidenced by a Guarantor Request.



 33
 









(f)            The
Trustee shall not be charged with knowledge of any Default or Event of Default
under SECTION 6.1 (other than under SECTION 6.1(a) or SECTION 6.1(b) (subject
to the following sentence) unless either (i) a Responsible Officer shall have
actual knowledge thereof, or (ii) the Trustee shall have received notice
thereof in accordance with SECTION 13.2 from the Company or any Holder of the
Notes. The Trustee shall not be charged with knowledge of the Company’s
obligation to pay Additional Interest, or the cessation of such obligation,
unless the Trustee receives written notice thereof from the Company or any
Holder.


(g)           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 each agent, custodian and other Person employed to act hereunder.


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


(i)            The Trustee may
request that the Company deliver an Officers’ Certificate in a form reasonably
acceptable to it setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers’ Certificate may be signed by any person specified as
so authorized in any such certificate previously delivered and not superseded.


7.3          Individual
Rights of Trustee.


The
Trustee may become the owner or pledgee of Securities and may otherwise deal
with the Company or any Affiliate of the Company with the same rights it would
have if it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest within the meaning of the TIA it must eliminate such
conflict within 90 days, or apply (subject to the consent of the Company) to
the Commission for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties.


7.4          Trustee’s
Disclaimer.


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


7.5          Notice
of Defaults.


If a
Default or Event of Default occurs and is continuing, the Trustee shall mail to
Holders of Securities a notice of the Default or Event of Default within 90
days after such Event of Default becomes known to the Trustee. Except in the
case of a Default in payment on any Security (including the failure to make a
mandatory repurchase thereof pursuant hereto), the Trustee may withhold the
notice (except notice with respect to Section 6.1(a) or 6.1(b)) if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Securities.


7.6          Reports
by Trustee to Holder of the Securities.


Within
60 days after each August 16th beginning with
the August 16th following the date of this Indenture, and for
so long as Securities remain outstanding, the Trustee shall mail to the Holders
of the Securities a brief report dated as of such reporting date that complies
with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA § 313(b). The Trustee
shall also transmit by mail all reports as required by TIA § 313(c).



 34
 









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


7.7          Compensation,
Reimbursement and Indemnity.


The
Company and each of the Guarantors jointly and severally covenant and agree to
pay the Trustee from time to time such compensation for its acceptance of this
Indenture and the rendering by it of the services required hereunder as shall
be agreed upon in writing by the Company and the Trustee. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company and each of the Guarantors jointly and severally
covenant and agree to reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by or on
behalf of it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee’s attorneys, accountants, experts and such other professionals as the
Trustee deems necessary, advisable or appropriate, but in no event shall
include employees of the Trustee.


The
Company and each of the Guarantors jointly and severally shall indemnify the
Trustee and any predecessor Trustee (which for purposes of this SECTION 7.7
shall include its officers, directors, employees, agents and shareholders), and
hold it harmless against, any and all losses, liabilities, claims, damages or
expenses, including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) and reasonable attorneys’ fees and
expenses, incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture (including its duties under
SECTION 9.6), including the costs and expenses of enforcing this Indenture
against the Company (including this SECTION 7.7) and defending itself against
or investigating any claim (whether asserted by the Company, 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,
damage, claim, liability or expense shall have been determined by a court of
competent jurisdiction to have been caused by its own 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. At the Trustee’s
sole discretion, the Company shall defend any claim or threatened claim
asserted against the Trustee, with counsel reasonably satisfactory to the
Trustee (which may be counsel to the Company unless there would be a conflict
in such representation), and the Trustee shall cooperate in the defense at the
Company’s expense. 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 and the Guarantors under this SECTION 7.7 shall
survive the resignation or removal of the Trustee, the satisfaction and
discharge of this Indenture and the termination of this Indenture.


To
secure the Company’s and Guarantors’ payment obligations in this SECTION 7.7,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee, if any, except that held in trust to pay any
amount due and owing to the Holders hereunder and under the terms of the
Securities. Such Lien shall survive the resignation or removal of the Trustee,
the satisfaction and discharge of this Indenture and the termination of this
Indenture.


When
the Trustee incurs expenses or renders services after an Event of Default
specified in SECTION 6.1(k) occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy Law.


7.8          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.



 35
 









The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Requisite Holders may remove
the Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:


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


(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,
receiver or public officer takes charge of the Trustee or its property for the
purpose of rehabilitation, conservation or liquidation; 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 date on which the successor Trustee takes office, the
Requisite Holders may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.


If a
successor Trustee does not take office within 30 days after the retiring
trustee resigns or is removed, the retiring Trustee, the Company, or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction, at the expense of the Company,
for the appointment of a successor Trustee.


If
the Trustee, after written request by any Holder of a Security who has been a
bona fide holder of a Security or Securities for at least six months, fails to
comply with SECTION 7.10, such Holder of a Security may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
Company shall mail (or cause to be mailed at its expense) a notice of such
succession to each Holder of a Security. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in SECTION 7.7. Notwithstanding replacement of the Trustee
pursuant to this SECTION 7.8, the Company’s obligations under SECTION 7.7 shall
continue for the benefit of the retiring Trustee.


7.9          Successor
Trustee by Merger, Etc.


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation that
is eligible under SECTION 7.10, the successor corporation, without any further
act, shall be the successor Trustee.


7.10        Eligibility;
Disqualification.


There
shall at all times be a Trustee hereunder that is a corporation or banking
association organized and doing business under the laws of the United States of
America or of any state thereof or the District of Columbia that is authorized
under such laws to exercise corporate trust power, that is subject to
supervision or examination by Federal or state authorities and that has (or, in
the case of a corporation or banking association included in a bank holding
company system, the related bank holding company shall have) a combined capital
and surplus of at least $50,000,000 million as set forth in its (or its related
bank holding company’s) most recent published annual report of condition.



 36
 









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


7.11        Preferential
Collection of Claims Against Company.


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


VIII.  DISCHARGE OF INDENTURE


8.1          Termination
of the Obligations of the Company.


This
Indenture shall cease to be of further effect if (a) either (i) all outstanding
Securities (other than Securities replaced pursuant to SECTION 2.7 hereof) have
been delivered to the Trustee for cancellation, or (ii) all outstanding
Securities have become due and payable at their scheduled maturity or upon Redemption
or Repurchase at Holder’s Option, and in any such case the Company irrevocably
deposits, prior to the applicable due date, with the Trustee or the Paying
Agent (if the Paying Agent is not the Company or any of its Affiliates) cash
sufficient to pay all amounts due and owing on all outstanding Securities
(other than Securities replaced pursuant to SECTION 2.7 hereof) on the Maturity
Date, Redemption Date or Repurchase Date, as the case may be; (b) the Company
pays to the Trustee all other sums payable hereunder by the Company and the
Company has otherwise satisfied in full all of its obligations under this
Indenture; (c) no Default or Event of Default with respect to the Securities
shall exist on the date of such deposit; (d) such deposit will not result in a
breach or violation of, or constitute a Default or Event of Default under, this
Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound; and (e) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with; provided, however, that
SECTIONS 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.15, 2.16, 2.17, 3.5, 3.8, 4.1,
4.2, 4.5, 7.7 and 7.8 and ARTICLES VIII, X, XII and XIII shall survive any
discharge of this Indenture until such time as the Securities have been paid in
full and there are no Securities outstanding.


8.2          Application
of Trust Money.


The
Trustee shall hold in trust money deposited with it pursuant to SECTION 8.1. It
shall apply the deposited money through the Paying Agent and in accordance with
this Indenture to the payment of the principal of, premium, if any, and any
unpaid and accrued interest on, the Securities (including, if applicable, the
Redemption Price, the Make-Whole Payment or the Repurchase Price.


8.3          Repayment
to Company and/or the Guarantors (as applicable).


The
Trustee and the Paying Agent shall promptly notify the Company and/or the
Guarantors of, and pay to the Company and/or the Guarantors upon the request of
the Company and/or the Guarantors, any excess money held by them at any time.
Subject to applicable unclaimed property laws, the Trustee and the Paying Agent
shall pay to the Company and/or the Guarantors upon the written request of the
Company and/or the Guarantors any money held by them for the payment of the
principal of, premium, if any, or any accrued and unpaid interest or additional
interest on, any Securities that remain unclaimed for two years. After payment
to the Company and/or Guarantors, Holders entitled to such money must look to
the Company and/or Guarantors for payment as general creditors, subject to
applicable law, and all liability of the Trustee and the Paying Agent with
respect to such money and payment shall, subject to applicable law, cease.


8.4          Reinstatement.


If
the Trustee or Paying Agent is unable to apply any money in accordance with
SECTIONS 8.1 and 8.2 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 obligations of the Company under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to



 37
 









SECTIONS 8.1 and
8.2 until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with SECTIONS 8.1 and 8.2; provided, however, that if
the Company has made any payment of amounts due with respect to any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.


IX.  AMENDMENTS


9.1          Without
Consent of Holders.


The
Company and the Guarantors, with the consent of the Trustee, may modify, amend
or supplement this Indenture or the Securities without notice to or the consent
of any Holder:


(a)           to evidence the
assumption of the Company’s or any of the Guarantor’s obligations by a
successor;


(b)           to evidence the
acceptance of appointment by a successor trustee;


(c)           to make any changes
or modifications to this Indenture necessary to cure any ambiguity or correct
any error in this Indenture, so long as such action will not adversely affect
the interests of the Holders;


(d)           to comply with the
provisions of, and to qualify or maintain the qualification of this Indenture
under, the TIA;


(e)           to secure the
obligations of the Company in respect of the Securities;


(f)            to establish the
forms or terms of the Securities;


(g)           to add to the
covenants of the Company or any of the Guarantors described in this Indenture
for the benefit of Securityholders or to surrender any right or power herein
conferred upon the Company of any of the Guarantors;


(h)           to reflect the
addition of a Guarantor as contemplated by SECTION 4.9 or the release of a
Guarantor pursuant to SECTION 12.4 ; or


(i)            to make other
changes to this Indenture or forms or terms of the Securities, provided no such
change individually or in the aggregate with all other such changes has or will
have a material adverse effect on the interests of the Holders.


9.2          With
Consent of Holders.


The
Company, with the consent of the Trustee, may modify, amend or supplement this
Indenture or the Securities without notice to any Holder but with the written
consent of the Requisite Holders. 
Subject to SECTIONS 6.4 and 6.7, Requisite Holders may, by notice to the
Trustee, waive compliance by the Company with any provision of this Indenture
or the Securities without notice to any other Holder. Notwithstanding anything
herein to the contrary, without the consent of each Holder of each outstanding
Security affected, a modification, amendment, supplement or waiver, including a
waiver pursuant to SECTION 6.4, may not:


(a)           extend the Maturity
Date of the principal of, or the payment date of any installment of interest
on, any Security;


(b)           reduce the principal
amount of, or any premium, interest or additional interest on, any Security;


(c)           change the currency
in which any Security is payable;



 38















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


(e)           reduce any amount
payable upon redemption or repurchase of any Security;


(f)            change the Company’s
obligation to maintain an office or agency in the places and for the purposes
specified in this Indenture;


(g)           affect the Company’s
obligation to redeem any Securities on a Redemption Date in a manner adverse to
the Holders;


(h)           affect the Company’s
obligation to repurchase any Securities upon a Change in Control in a manner
adverse to the Holders;


(i)            impair the right of
Holders to convert Securities or reduce the number of shares of Common Stock,
the amount of cash or the amount of any other property receivable upon
conversion;


(j)            reduce the percentage
of the aggregate principal amount of the outstanding Securities whose Holders
must consent to a modification to or amendment of any provision of this
Indenture;


(k)           reduce the quorum or
voting requirements under this Indenture;


(l)            modify the provisions
of this Indenture relating to the ranking of the notes vis-à-vis other
Indebtedness;


(m)          reduce the percentage
of the aggregate principal amount of the outstanding Securities whose Holders
must consent to a waiver of compliance with any provision of this Indenture or
a waiver of any Default or Event of Default;


(n)           modify the
provisions of this Indenture relating to the Guarantees in a manner adverse to
the Holders of the Securities; or


(o)           modify the
provisions of this Indenture with respect to modification and waiver (including
waiver of a Default or an Event of Default), except to increase the percentage
required for modification or waiver or to provide for consent of each affected
Holder.


Promptly
after a modification, amendment, supplement or waiver under SECTION 9.1 or this
SECTION 9.2 becomes effective, the Company shall mail, or cause to be mailed,
to Holders a notice briefly describing such modification, amendment, supplement
or waiver. Any failure of the Company to mail such notice shall not in any way
impair or affect the validity of such modification, amendment, supplement or
waiver.


It
shall not be necessary for the consent of the Holders under this SECTION 9.2 to
approve the particular form of any proposed modification, amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.


9.3          Compliance
with Trust Indenture Act.


Every
modification, amendment, waiver or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect.


9.4          Revocation
and Effect of Consents.


Until
a modification, amendment, supplement or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security, even if notation of the consent is not made
on any



 39
 









Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of a Security if the Trustee receives the notice of revocation
before the date the modification, amendment, supplement or waiver becomes
effective. A modification, amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.


After
a modification, amendment, supplement or waiver becomes effective with respect
to the Securities, it shall bind every Holder unless it makes a change that
requires, pursuant to SECTION 9.2, the consent of each Holder affected. In that
case, the modification, amendment, supplement or waiver shall bind each Holder
of a Security who has consented to it and, provided that notice of such
modification, amendment, supplement or waiver is reflected on a Security that
evidences the same debt as the consenting Holder’s Security, every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security.


9.5          Notation
on or Exchange of Securities.


If a
modification, amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security as
directed and prepared by the Company about the changed terms and return it to
the Holder. Alternatively, if the Company so determines, the Company, in
exchange for the Security, shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms.


9.6          Trustee
Protected.


The
Trustee shall sign any modified, amended or supplemental indenture authorized
pursuant to this ARTICLE IX if the modification, amendment or supplement does
not affect the rights, duties, liabilities or immunities of the Trustee.  The Company may not sign a modified, amended or
supplemental indenture until the Board of Directors approves such modified,
amended or supplemental indenture.  In
executing any modified, amended or supplemental indenture, the Trustee shall be
provided with an Opinion of Counsel and an Officers’ Certificate, and, subject
to SECTION 7.1, shall be fully protected in relying upon such documents.


X.  CONVERSION


10.1        Conversion
Privilege.


(a)           Subject to the
provisions of SECTIONS 3.4, 3.5, 3.7, and 3.8, the Securities shall be
convertible into shares of Common Stock at any time prior to the close of
business on the Trading Day immediately preceding the Maturity Date, in
accordance with this ARTICLE X and as set forth below.


(b)           A Security, or
portion of a Security, which has been called for Redemption pursuant to
PARAGRAPH 6 of the Securities may be surrendered for conversion into shares of
Common Stock; provided, however, that such Security or portion thereof may be
surrendered for conversion pursuant to this paragraph only until the close of
business on the second Business Day immediately preceding the Redemption Date.


(c)           A Security, or
portion of a Security, which is subject to a Repurchase at Holder’s Option may
not be surrendered for conversion into shares of Common Stock unless the
Purchase Notice relating thereto is first withdrawn in accordance with the
procedures set forth in Section 3.8 above.


(d)           The principal amount
of a Security (or portion of a Security) shall be convertible into such number
of shares of Common Stock as shall be determined by dividing such principal
amount by the Conversion Price as in effect on the Conversion Date.  The initial Conversion Price shall be $2.25(1)
per share of Common Stock. The Conversion Price shall be subject to adjustment
in accordance with Section 10.8 below.






(1) 10% premium to the closing sale price on the Trading Day
immediately preceding the Issue Date.



 40
 









(e)           A Holder may convert
a portion of the principal of such Security if the portion is $1,000 principal
amount or an integral multiple of $1,000 principal amount. Provisions of this
Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of it.


10.2        Limitations
on Conversion.


(a)           Notwithstanding
anything to the contrary contained herein, at any time that any of the Company’s
equity securities are registered under Section 12 of the Exchange Act, the
number of shares of Common Stock that may be acquired by the Holder upon any
conversion of a Security (or otherwise in respect of a Security) shall be
limited to the extent necessary to ensure that, following such conversion (or
other issuance), the total number of shares of Common Stock then beneficially
owned by such Holder and its Affiliates and any other Persons whose beneficial
ownership of Common Stock would be aggregated with the Holder’s for purposes of
Section 13(d) of the Exchange Act, does not exceed 4.999% (the “5% Maximum
Percentage”) of the total number of issued and outstanding shares of Common
Stock (including for such purpose the shares of Common Stock issuable upon such
conversion or other issuance).  For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
The Company shall, instead of issuing shares of Common Stock in excess of the
5% Maximum Percentage, suspend its obligation to issue shares in excess of the
foregoing limitation until such time, if any, as such shares of Common Stock
may be issued in compliance with such limitation.  Additionally,
by  written notice to the
Company and the Trustee, a Holder may waive the provisions of this Section
10.2(a) or increase or decrease the 5% Maximum Percentage to any other
percentage specified in such notice; provided, that (i) any such waiver or
increase or decrease will not be effective until the 61st day after such notice is delivered to the
Company and the Trustee, and (ii) any such waiver or increase or decrease will
apply only to such Holder and not to any other Holder of Securities.


(b)           Notwithstanding anything
to the contrary contained herein and regardless of whether the restrictions
contained in Section 10.2(a) are waived as provided therein, the number of
shares of Common Stock that may be acquired by a Holder upon any conversion of
Securities (or otherwise in respect of a Security) shall be limited to the
extent necessary to ensure that, following such conversion (or other issuance),
the total number of shares of Common Stock then beneficially owned by such
Holder and its Affiliates and any other Persons whose beneficial ownership of
Common Stock would be aggregated with the Holder’s for purposes of Section
13(d) of the Exchange Act, does not exceed 9.999% (the “10% Maximum
Percentage”) of the total number of issued and outstanding shares of Common
Stock (including for such purpose the shares of Common Stock issuable upon such
exercise).  For such purposes, beneficial
ownership shall be determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. The Company shall,
instead of issuing shares of Common Stock in excess of the 10% Maximum
Percentage, suspend its obligation to issue shares in excess of the foregoing
limitation until such time, if any, as such shares of Common Stock may be
issued in compliance with such limitation. 
The provisions of this Section 10.2(b) may not be waived.


10.3        Restrictive
Legends.


Any
shares of Common Stock issued upon conversion of a Security shall bear the
Private Placement Legend until such shares are sold pursuant to an effective
registration statement or until after the second anniversary of the later of
the Issue Date and the last date on which the Company or any Affiliate was the
owner of such shares or the Security (or any predecessor security) from which
such shares were converted (or such shorter period of time as permitted by Rule
144(k) under the Securities Act or any successor provision thereunder) (or such
longer period of time as may be required under the Securities Act or applicable
state securities laws, as set forth in an Opinion of Counsel, unless otherwise
agreed by the Company and the Holder thereof).


10.4        Conversion
Procedure.


To
convert a Security (or any portion thereof), a Holder must satisfy the
requirements of PARAGRAPH 9 of the Securities. As soon as practicable (and in
no event later than three Trading Days) following the date (the “Conversion
Date”) on which the Holder satisfies all those requirements, the Company
shall deliver to the Holder through the Conversion Agent a certificate for the
number of full shares of Common Stock issuable upon the conversion, as provided
in PARAGRAPH 9 of the Securities, and, a check or wire transfer of immediately
available funds for payment of accrued and unpaid interest (including
Additional Interest) on the principal amount



 41
 









of Securities
being converted to but excluding the Conversion Date. On and after the
Conversion Date, the person in whose name such certificate is to be registered
shall be treated as a shareholder of record of the Company, and all rights of
the Holder of the Security to be converted shall terminate, other than the
right to receive the shares of Common Stock and cash deliverable as provided in
the preceding sentence. A Holder of Securities is not entitled to any rights of
a holder of Common Stock until such Holder has converted its Securities into
shares of Common Stock, or is deemed to be a shareholder of record of the
Company, as provided in this paragraph, and then only to the extent such
Securities are deemed to have been so converted or such Holder is so deemed to
be a shareholder of record.


If
the Company fails to issue and deliver, or cause to be issued and delivered
though the Conversion Agent, to a Holder (or such Holder’s nominee or nominee),
certificates for the number of full shares of Common Stock to which such Holder
shall be entitled upon conversion of any Securities on or prior to the date
which is three Trading Days after the Conversion Date, and if on or after such
date such Holder is required by its broker to purchase (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of
a sale by such Holder of the shares of Common Stock which such Holder
anticipated receiving upon conversion, then the Company shall, within three
Business Days after such Holder’s request therefore, (a) pay in cash to such
Holder the amount by which (i) the Holder’s total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased
exceeds (ii) the amount obtained by multiplying (x) the number of shares of
Common Stock required to be issued and delivered upon such conversion, by (y)
the price at which the sell order giving rise to such purchase obligation was
executed, and (b) at the option of such Holder, either reinstate the Security
(or portion thereof) and equivalent number of shares of Common Stock for which
such conversion was not timely honored, or deliver to the Holder the number of
shares of Common Stock that should have been issued and delivered upon
conversion as required by the terms hereof.


If a
Holder converts more than one Security at the same time, the number of full
shares of Common Stock issuable upon such conversion shall be based on the
total principal amount of all Securities converted. Upon surrender of a
Security that is converted in part, the Trustee shall authenticate for the
Holder a new Security equal in principal amount to the unconverted portion of
the Security surrendered.


If
the last day on which a Security may be converted is a Legal Holiday in a place
where a Conversion Agent is located, the Security may be surrendered to that
Conversion Agent on the next succeeding day that is not a Legal Holiday.


10.5        Fractional
Shares.


The
Company will not issue fractional shares of Common Stock upon conversion of
Securities and will  round up the nearest
whole number of shares of Common Stock.


10.6        Taxes
on Conversion.


If a
Holder converts its Security, the Company shall pay any documentary, stamp or
similar issue or transfer tax or duty due on the issue, if any, of shares of
Common Stock upon the conversion. However, such Holder shall pay any such tax
or duty which is due because such shares are issued in a name other than such
Holder’s name. The Conversion Agent may refuse to deliver a certificate
representing the shares of Common Stock to be issued in a name other than such
Holder’s name until the Conversion Agent receives a sum sufficient to pay any
tax or duty which will be due because such shares are to be issued in a name
other than such Holder’s name. Nothing herein shall preclude any tax
withholding required by law or regulation.


10.7        Company
to Provide Stock.


The
Company shall at all times reserve out of its authorized but unissued Common
Stock or Common Stock held in its treasury enough shares of Common Stock to
permit the conversion of all of the Securities into shares of Common Stock.



 42
 









All
shares of Common Stock which may be issued upon conversion of the Securities
shall be validly issued, fully paid and non-assessable and shall be free of
preemptive or similar rights and free of any Lien or adverse claim.


The
Company shall comply with all securities laws regulating the offer and delivery
of shares of Common Stock upon conversion of Securities and shall list such
shares on each Trading Market on which the Common Stock is listed.


10.8        Adjustment
of Conversion Price.


The
Conversion Price shall be subject to adjustment from time to time as follows:


(a)           In case the Company
pays any cash dividend (including regularly scheduled cash dividends) or other
cash distribution to holders of its Common Stock, then on and after the record
date for the determination of holders of Common Stock entitled to such dividend
or distribution, the Conversion Price shall be decreased by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which (i) the numerator shall be (A) the Current Market Price of the Common
Stock in effect at the close of business on such record date, less (B) the per
share amount of such dividend or other distribution, and (ii) the denominator
shall be the Current Market Price of the Common Stock in effect at the close of
business on such record date.  Such
decrease shall become effective immediately prior to the opening of business on
the day following such record date.


(b)           In case the Company
shall (i) pay a dividend in shares of Common Stock to all holders of Common
Stock, (ii) make a distribution in shares of Common Stock to all holders of
Common Stock, (iii) subdivide the outstanding shares of Common Stock into a
greater number of shares of Common Stock, or (iv) combine the outstanding
shares of Common Stock into a smaller number of shares of Common Stock, the
Conversion Price in effect immediately prior to such action shall be adjusted
so that the Holder of any Security thereafter surrendered for conversion shall
be entitled to receive the number of shares of Common Stock which such Holder
would have owned immediately following such action had such Securities been
converted immediately prior thereto. Any adjustment made pursuant to this
SECTION 10.8(b) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision or combination.  If any dividend or distribution of the type
described in this SECTION 10.8(b) is declared but not so paid or made, the
Conversion Price shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.


(c)           In case the Company
shall dividend or distribute to all holders of Common Stock shares of Capital
Stock of the Company (other than Common Stock), evidences of Indebtedness or
other assets (other than cash dividends or distributions covered by SECTION
10.8(a)), or shall dividend or distribute to all holders of Common Stock
warrants, options or rights to subscribe for or purchase securities, then, in
each such case, unless such dividend or distribution is made in connection with
a Spin-Off (in which event SECTION 10.14 shall apply), the Conversion Price
shall be decreased by multiplying the Conversion Price in effect immediately
prior to the close of business on the record date for the determination of
holders of Common Stock entitled to such dividend or distribution by a fraction
of which (i) the numerator shall be an amount equal to (A) the Current Market
Price of Common Stock, less (B) the fair market value (as determined in good
faith by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), on such record date, of the portion of the
shares of Capital Stock, evidences of Indebtedness, assets, warrants, options
or rights to be dividended or distributed applicable to one share of Common
Stock, and (ii) the denominator shall be such market price, such decrease to
become effective immediately prior to the opening of business on the day
following such record date; provided, however, that if such denominator is
equal to or less than one, then, in lieu of the foregoing adjustment to the
Conversion Price, adequate provision shall be made so that each Holder shall
have the right to receive upon conversion of its Securities, in addition to the
shares of Common Stock issuable (and cash, if any, payable) upon such
conversion, an amount of shares of Capital Stock, evidences of Indebtedness,
assets, options, warrants or rights that such Holder would have received had
such Holder converted all of its Securities on such record date. In the event
that such dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared.



 43
 









(d)           In case the Company
shall issue or sell shares of Common Stock or Common Stock Equivalents (other
than Excluded Securities), at a price per share lower than the Conversion Price
in effect immediately prior to such issuance or sale, then the Conversion Price
shall be reduced on the date of such issuance to the lowest price per share at
which any such shares of Common Stock or Common Stock Equivalents have been
issued or sold.  In connection with the
adjustments contemplated by this SECTION 10.8(d), the following provisions
shall apply:


(i)            No adjustment of
any Conversion Price pursuant to this SECTION 10.8(d) shall have the effect of
increasing such Conversion Price above the Conversion Price in effect
immediately prior to such adjustment.


(ii)           In the case of the
issuance of Common Stock or Common Stock Equivalents for cash, the
consideration shall be deemed to be the amount of cash paid, excluding amounts
paid or payable for accrued interest.


(iii)          In the case of the
issuance of Common Stock or Common Stock Equivalents for a consideration in
whole or in part other than cash, the consideration other than cash shall be
deemed to be the fair value thereof as determined in good faith by the Board.


(iv)          The disposition
of  treasury shares shall be considered
an issuance of Common Stock or Common Stock Equivalents.


(v)           If any Common Stock
or Common Stock Equivalents are issued to the owners of the non-surviving
entity in connection with any merger in which the Company is the surviving
corporation, the amount of consideration therefore shall be deemed to be the
fair value of the portion of the net assets of the non-surviving entity that is
attributable to such Common Stock or Common Stock Equivalents.  The fair value of any consideration or net
assets other than cash and securities (and, if applicable, the portions thereof
attributable to any such stock or securities) shall be determined in good faith
by the Board.


(vi)          Common Stock
Equivalents shall be deemed issued for the consideration, if any, received by
the Company upon the issuance of such Common Stock Equivalents (excluding any
cash received or receivable on account of accrued interest or accrued
dividends), plus the additional consideration, if any, to be received by the
Company upon the full exercise, conversion or exchange of such Common Stock
Equivalents.


(vii)         All Common Stock or
Common Stock Equivalents deemed issued pursuant to this SECTION 10.8(d) shall
be considered issued only at the time of its deemed issuance and any actual
issuance of such stock shall not be an actual issuance or a deemed issuance of
Common Stock or Common Stock Equivalents under the provisions of this SECTION
10.8(d).


(e)           If the Volume
Weighted Average Price for the 20 Trading Days ending on and including the
Trading Day immediately preceding the second year anniversary of the Issue Date
(the “Conversion Price Reset Date”) is less then the Conversion Price
then in effect, then effective as of the Conversion Price Reset Date, the
Conversion Price shall be reduced to an amount equal to 110% of such Volume
Weighted Average Price; provided, that (i) the Conversion Price shall not be
reduced to an amount less than 67.7% of the Conversion Price in effect
immediately prior to such adjustment, and (ii) under no circumstances shall the
Conversion Price be increased.


(f)            In addition to the
foregoing adjustments, the Company, from time to time and to the extent
permitted by law, may decrease the Conversion Price by any amount for a period
of at least 20 days or such longer period as may be required by law, if the
Board of Directors has made a determination, which determination shall be
conclusive, that such decrease would be in the best interests of the Company.
Such Conversion Price decrease shall be irrevocable during such period. The
Company shall give notice to the Trustee and cause notice of such decrease to
be mailed to each Holder of Securities at such Holder’s address as the same
appears on the registry books of the Registrar, at least 15 days prior to the
date on which such decrease commences.



 44
 









(g)           The Company may make
such decreases in the Conversion Price, in addition to those required by SECTION
10.8 hereof, as it determines to be advisable in order that any stock dividend,
subdivision of shares, distribution or rights to purchase stock or securities
or distribution of securities convertible into or exchangeable for stock made
by the Company or to its stockholders will not be taxable to the recipients
thereof.


(h)           The computation of
any adjustment to be made pursuant to SECTIONS 10.8(a), (b) or (c) above shall
be subject to the following:


(i)            if the “ex” date
for any event (other than the event requiring such computation) that requires
an adjustment to the Conversion Price pursuant to SECTIONS 10.8(a), (b) or (c)
occurs on or after the tenth Trading Day prior to the applicable Determination
Date, and prior to the “ex” date for the issuance or distribution requiring
such computation, the Volume Weighted Average Price for each Trading Day prior
to the “ex” date for such other event shall be adjusted by multiplying such
Volume Weighted Average Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of such other event;


(ii)           if the “ex” date
for any event (other than the event requiring such computation) that requires
an adjustment to the Conversion Price pursuant to SECTIONS 10.8(a), (b) or (c),
above occurs on or after the “ex” date for the issuance or distribution
requiring such computation and on or prior to the applicable Determination
Date, the Volume Weighted Average Price for each Trading Day on and after the “ex”
date for such other event shall be adjusted by multiplying such Volume Weighted
Average Price by the same fraction by which the Conversion Price is so required
to be adjusted as a result of such other event; and


(iii)          if the “ex” date
for the event requiring such computation is on or prior to the applicable
Determination Date, after taking into account any adjustment required pursuant
to clause (i) or (ii) above, the Volume Weighted Average Price for each Trading
Day on and after such “ex” date shall be adjusted by adding thereto the amount
of any cash and the fair market value (as determined in good faith by the
Company’s Board of Directors) of the evidences of Indebtedness, shares of
Capital Stock or other securities or assets or cash being distributed (in the
event requiring such computation) applicable to one share of Common Stock as of
the close of business on the day before such “ex” date.


For purposes of
this subsection, the term “ex” date, (A) when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades the
regular way on the relevant Trading Market from which the Volume Weighted
Average Price was obtained without the right to receive such issuance or
distribution, (B) when used with respect to any subdivision or combination of
shares of Common Stock, means the first date on which the Common Stock trades
the regular way on such exchange or in such Trading Market after the time at
which such subdivision or combination becomes effective, and (C) when used with
respect to any tender offer or exchange offer means the first date on which the
Common Stock trades the regular way on such Trading Market after the expiration
time of such tender offer or exchange offer (as it may be amended or extended).


10.9        No
Adjustment.


No
adjustment in the Conversion Price shall be required (a) for a change in the
par value or no par value of the Common Stock, or (b) for accrued and unpaid
interest.  No adjustment in the
Conversion Price shall be required unless the adjustment would require an
increase or decrease of at least $0.01; provided, however, that any adjustments
which by reason of this SECTION 10.8 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this ARTICLE X shall be made to the nearest cent or to the
nearest one-tenth of a share, as the case may be.


10.10      Certificate
of Adjustment.


Whenever
the Conversion Price is adjusted, the Company shall promptly mail to Holders at
the addresses appearing on the Registrar’s books a notice of the adjustment and
file with the Trustee an Officers’ Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. The certificate shall
be conclusive evidence of the correctness of such adjustment absent manifest
error.  At the Company’s Request, upon
reasonable prior notice agreed to by the Trustee, the Trustee shall, in the
Company’s name and at the Company’s



 45
 









expense, mail to
Holders at the addresses appearing on the Registrar’s books such notice of adjustment
required by this SECTION 10.10; provided, that the form and content of such
notice shall be prepared by the Company.


10.11      Conversion
in Connection with a Change in Control.


(a)           If a Holder converts
his, her or its Securities in connection with a Change in Control, such Holder
shall be entitled to receive, in addition to the shares of Common Stock
determined pursuant to Section 10.1(d) above, additional shares (“Additional
Shares”) of Common Stock.  For
purposes of the foregoing, a Holder will be deemed to convert his, her or its
Securities “in connection with a Change in Control” if the applicable
Conversion Date is subsequent to the date of the Right of Repurchase Notice but
prior to or on the Repurchase Date.  Upon
any such conversion, a Holder shall be entitled to receive, in respect of each
$1,000 principal amount of converted Securities, such number of Additional
Shares as shall be determined by reference to (i) the table below, and (ii) the
effective date of the Change in Control (the “Effective Date”) and the
price (the “Stock Price”) paid per share of Common Stock in such Change
in Control. 


	
  Effective Date

  	
   

  	
  Stock Price

  	
   

  
	
   

  	
   

  	
  $

  	
  2.00

  	
   

  	
  $

  	
  3.00

  	
   

  	
  $

  	
  4.00

  	
   

  	
  $

  	
  5.00

  	
   

  	
  $

  	
  6.00

  	
   

  	
  $

  	
  7.00

  	
   

  	
  $

  	
  8.00

  	
   

  	
  $

  	
  9.00

  	
   

  	
  $

  	
  10.00

  	
   

  	
  $

  	
  11.00

  	
   

  	
  $

  	
  12.00

  	
   

  	
  $

  	
  20.00

  	
   

  
	
  February 16, 2007

  	
   

  	
  192.72

  	
   

  	
  115.49

  	
   

  	
  81.32

  	
   

  	
  62.51

  	
   

  	
  50.71

  	
   

  	
  42.66

  	
   

  	
  36.83

  	
   

  	
  32.41

  	
   

  	
  28.95

  	
   

  	
  26.17

  	
   

  	
  23.88

  	
   

  	
  0

  	
   

  
	
  February 16,
  2008

  	
   

  	
  190.89

  	
   

  	
  110.66

  	
   

  	
  76.49

  	
   

  	
  58.17

  	
   

  	
  46.91

  	
   

  	
  39.33

  	
   

  	
  33.89

  	
   

  	
  29.79

  	
   

  	
  26.60

  	
   

  	
  24.04

  	
   

  	
  21.93

  	
   

  	
  0

  	
   

  
	
  February 16,
  2009

  	
   

  	
  173.91

  	
   

  	
  94.56

  	
   

  	
  63.01

  	
   

  	
  46.97

  	
   

  	
  37.47

  	
   

  	
  31.24

  	
   

  	
  26.84

  	
   

  	
  23.57

  	
   

  	
  21.03

  	
   

  	
  19.00

  	
   

  	
  17.34

  	
   

  	
  0

  	
   

  
	
  February 16,
  2010

  	
   

  	
  150.96

  	
   

  	
  72.72

  	
   

  	
  45.26

  	
   

  	
  32.64

  	
   

  	
  25.67

  	
   

  	
  21.28

  	
   

  	
  18.27

  	
   

  	
  16.05

  	
   

  	
  14.34

  	
   

  	
  12.98

  	
   

  	
  11.86

  	
   

  	
  0

  	
   

  
	
  February 16,
  2011

  	
   

  	
  118.55

  	
   

  	
  41.62

  	
   

  	
  21.72

  	
   

  	
  14.76

  	
   

  	
  11.50

  	
   

  	
  9.60

  	
   

  	
  8.31

  	
   

  	
  7.35

  	
   

  	
  6.60

  	
   

  	
  5.99

  	
   

  	
  5.49

  	
   

  	
  0

  	
   

  
	
  February 16, 2012

  	
   

  	
  61.26

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0

  	
   

  
																																						



 


The above table is
intended to be illustrative of the possible Effective Dates, Stock Prices and
Additional Shares.  If the Stock Price
is:


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


(ii)           in excess of $20.00
per share (subject to adjustment), no Additional Shares will be issued upon
conversion; and


(iii)          less than $2.00 per
share (subject to adjustment), no Additional Shares will be issued upon
conversion.


Notwithstanding
the foregoing, in no event will the total number of shares of Common Stock
(including Additional Shares) issuable upon conversion in connection with a
Change of Control exceed 637.164 per $1,000 principal amount of Securities
(subject to adjustment).


(b)           If holders of Common
Stock receive only cash in such transaction, the Stock Price will be the cash
amount paid per share.  Otherwise, the
Stock Price will be deemed to be the Volume Weighted Average Price for the 20 consecutive
Trading Days ending on and including the Trading Day immediately preceding the
Effective Date.


(c)           Simultaneously with
any adjustment to the Conversion Price pursuant to Section 10.8 (including an
adjustment by reason of a Change in Control, if applicable), the illustrative
Stock Prices and Additional Share numbers set forth in the table above shall be
deemed automatically and proportionally adjusted by multiplying each such
number by a fraction, the numerator of which shall be the Conversion Price in
effect immediately after such adjustment, and the denominator of which shall be
the Conversion Price in effect



 46
 









immediately
prior to such adjustment.  Additional
Shares shall be deemed shares of Common Stock issued upon conversion of a
Security for purposes of Section 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.13 and
10.14.


10.12      Notice
of Certain Transactions.


In
the event that:


(a)           the Company takes
any action, or becomes aware of any event, which would require an adjustment in
the Conversion Price;


(b)           the Company takes
any action that would require a supplemental indenture pursuant to SECTION
10.13; or


(c)           there is a
dissolution or liquidation of the Company,


the Company shall
mail to Holders at the addresses appearing on the Registrar’s books and the Trustee
a written notice stating the proposed record, effective or expiration date, as
the case may be, of any transaction referred to in CLAUSE (a), (b) or (c) of
this SECTION 10.12. The Company shall mail such notice at least 10 days before
such date; however, failure to mail such notice or any defect therein shall not
affect the validity of any transaction referred to in CLAUSE (a), (b) or (c) of
this SECTION 10.12. At the Company’s Request, upon reasonable prior notice
agreed to by the Trustee, the Trustee shall, in the Company’s name and at the
Company’s expense, mail to Holders at the addresses appearing on the Registrar’s
books such written notice required by this SECTION 10.12; provided, that the
form and content of such notice shall be prepared by the Company.


10.13      Effect
of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales
on Conversion Privilege.


If
any of the following shall occur, namely: (a) any reclassification or change in
the Common Stock issuable upon conversion of 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), (b) any consolidation,
merger or binding share exchange to which the Company is a party other than a
merger in which the Company is the continuing Person and which does not result
in any reclassification of, or change (other than a change in name, or 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) in, the Common Stock, or (c) any
sale, transfer, lease, conveyance or other disposition of all or substantially
all of the property or assets of the Company (a “Fundamental Transaction”),
then the Company or such successor or purchasing Person, as the case may be,
shall, as a condition precedent to such Fundamental Transaction, execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory
to the Trustee providing that, at and after the effective time of such
Fundamental Transaction, the Holder of each Security then outstanding shall
have the right to convert such Security into the kind and amount of shares of
stock and other securities and property (including cash) receivable upon such
Fundamental Transaction by a holder of the number of shares of Common Stock
deliverable upon conversion of such Security immediately prior to such
Fundamental Transaction, plus, if such Fundamental Transaction is a Change in
Control, such number of Additional Shares which would have been issued under
Section 10.11 above in connection  with a
conversion of such Security in connection therewith, assuming that such Holder
would not have exercised any rights of election that such Holder would have had
as a holder of Common Stock to select a particular type of consideration. Such
supplemental indenture shall provide for adjustments of the Conversion Price
which shall be as nearly equivalent as may be practicable to the adjustments of
the Conversion Price provided for in this ARTICLE X (including, but not limited
to, adjustments for any cash dividends or distributions made by the successor
or purchasing Person). If, in the case of any such Fundamental Transaction, the
stock or other securities and property (including cash) receivable thereupon by
a holder of Common Stock includes shares of stock or other securities and
property of a Person other than the successor or purchasing Person, as the case
may be, in such Fundamental Transaction, then such supplemental indenture shall
also be executed by such other Person and shall contain such additional
provisions to protect the interests of the Holders of the Securities as the
Board of Directors in good faith shall reasonably determine necessary by reason
of the foregoing (which determination shall be described in a Board
Resolution). The provisions of this SECTION 10.13 shall similarly apply to
successive Fundamental Transaction.



 47
 









In
the event a supplemental indenture shall have been executed pursuant to this
SECTION 10.13, the Company shall promptly file with the Trustee an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of shares
of stock or securities or property (including cash) receivable by Holders of
the Securities upon the conversion of their Securities after any such
Fundamental Transaction and any adjustment to be made with respect thereto.


10.14      Trustee’s
Disclaimer.


The
Trustee has no duty to determine when an adjustment under this ARTICLE X should
be made, how it should be made or what such adjustment should be, but may
accept as conclusive evidence of the correctness of any such adjustment, and
shall be protected in relying upon, the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to SECTION
10.10 hereof. The Trustee makes no representation as to the validity or value
of any securities or assets issued upon conversion of Securities, and the
Trustee shall not be responsible for the failure by the Company to comply with
any provisions of this ARTICLE X.


The
Trustee shall not be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture executed pursuant to
SECTION 10.13, but may accept as conclusive evidence of the correctness
thereof, and shall be protected in relying upon, the Officers’ Certificate with
respect thereto which the Company is obligated to file with the Trustee
pursuant to SECTION 10.13 hereof.


XI.  SUBORDINATION


11.1        Agreement
of Subordination.


The
Company agrees, and each Holder of Securities by accepting the same agrees,
that the Indebtedness evidenced by the Securities is subordinated in right of
payment (to the extent and in the manner provided in this Article XI) to the
prior payment in full in cash or payment satisfactory to holders of Designated
Secured Indebtedness of all Designated Secured Indebtedness, and that the
subordination is for the benefit of the holders of Designated Secured
Indebtedness.


11.2        Liquidation;
Dissolution; Bankruptcy.


Upon
any distribution to creditors of the Company in a liquidation or dissolution of
the Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property, in an assignment
for the benefit of creditors or any marshaling of the Company’s assets and
liabilities:


(a)           holders of
Designated Secured Indebtedness shall be entitled to receive payment in full of
all Obligations due in respect of such Designated Secured Indebtedness
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Designated Secured Indebtedness) in cash or other
payment satisfactory to the holders of the Designated Secured Indebtedness
before holders of the Securities shall be entitled to receive any payment with
respect to the Securities; and


(b)           until all
Obligations due in respect of such Designated Secured Indebtedness is paid in
full in cash or other payment satisfactory to the holders of the Designated
Secured Indebtedness, any distribution to which holders of the Securities would
be entitled but for this Article XI shall be made to holders of Designated
Secured Indebtedness, as their interests may appear.


11.3        Default
on Designated Secured Indebtedness.


Anything
in this Indenture to the contrary notwithstanding, no payment of Principal
Amount, plus any accrued and unpaid interest (including any Additional
Interest) on or other amounts due on the Securities, and no Redemption,
repurchase or other acquisition of the Securities, shall be made by or on behalf
of the Company unless:



 48















(a)           full payment of all
amounts then due for principal of and interest on, and of all other amounts
then due on, all Designated Secured Indebtedness has been made or duly provided
for pursuant to the terms of the instruments governing such Designated Secured
Indebtedness; and


(b)           at the time for, and
immediately after giving effect to, any such payment, Redemption, repurchase or
other acquisition, there shall not exist under any Designated Secured
Indebtedness, or any agreement pursuant to which any Designated Secured
Indebtedness is issued, any default which shall not have been cured or waived
and which default shall have resulted in the full amount of such Designated
Secured Indebtedness being declared due and payable.


11.4        Acceleration
of Securities.


In the
event of the acceleration of the Securities because of an Event of Default, the
Company may not make any payment or distribution to the Trustee or any holder
of Securities in respect of Obligations with respect to the Securities and may
not acquire or purchase from the Trustee or any holder of Securities any
Securities until all Designated Secured Indebtedness has been paid in full in
cash or other payment satisfactory to the holders of Designated Secured
Indebtedness or such acceleration is rescinded in accordance with the terms of
this Indenture.


If
payment of the Securities is accelerated because of an Event of Default, the
Company shall promptly notify holders of Designated Secured Indebtedness or
trustees of such Designated Secured Indebtedness of the acceleration.


11.5        When
Distribution Must Be Paid Over.


In
the event that the Trustee, any holder of Securities or any other person
receives any payment or distributions of assets of the Company of any kind with
respect to the Securities in contravention of any subordination terms contained
in this Indenture, whether in cash, property or securities, including, without
limitation, by way of set-off or otherwise, then such payment shall be held by
the recipient in trust for the benefit of holders of Designated Secured
Indebtedness, and shall be immediately paid over and delivered to the holders
of Designated Secured Indebtedness or their representative, to the extent
necessary to make payment in full of all Obligations due in respect of
Designated Secured Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution or provision therefor, to or for the holders
of Designated Secured Indebtedness; provided, however, that the foregoing shall
apply to the Trustee only if a Responsible Officer of the Trustee has actual
knowledge (as determined in accordance with SECTION 11.11) that such payment or
distribution is prohibited by this Indenture.


With
respect to the holders of Designated Secured Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XI, and no implied covenants or
obligations with respect to the holders of Designated Secured Indebtedness
shall be read into this Indenture against the Trustee.  The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Designated Secured Indebtedness, and shall not
be liable to any such holders if the Trustee shall in good faith mistakenly pay
over or distribute to or on behalf of holders of Securities or the Company or
any other person money or assets to which any holders of Designated Secured
Indebtedness shall be entitled by virtue of this Article XI.


11.6        Notice
by Company.


The
Company shall promptly notify the Trustee of any facts known to the Company
that would cause a payment of any Obligations with respect to the Securities or
the purchase of any Securities by the Company to violate this Article XI, but
failure to give such notice shall not affect the subordination of the Securities
to the Designated Secured Indebtedness as provided in this Article XI.


11.7        Subrogation.


After
all Obligations due in respect of Designated Secured Indebtedness are paid in
full and until the Securities are paid in full, holders of Securities shall be
subrogated (equally and ratably with all other 



 49
 









indebtedness pari
passu with the Securities) to the rights of holders of Designated Secured
Indebtedness to receive distributions applicable to Designated Secured
Indebtedness to the extent that distributions otherwise payable to the holders
of Securities have been applied to the payment of Designated Secured
Indebtedness.  A distribution made under
this Article XI to holders of Designated Secured Indebtedness that otherwise
would have been made to holders of Securities is not, as between the Company
and holders of Securities, a payment by the Company on the Securities.


11.8        Relative
Rights.


This
Article XI defines the relative rights of holders of Securities and holders of
Designated Secured Indebtedness.  Nothing
in this Indenture shall:


(a)           impair, as between
the Company and holders of Securities, the obligation of the Company, which is
absolute and unconditional, to pay the Principal Amount and interest (including
any Additional Interest) on the Securities in accordance with their terms;


(b)           affect the relative
rights of holders of Securities and creditors (other than with respect to
Designated Secured Indebtedness) of the Company, other than their rights in
relation to holders of Designated Secured Indebtedness; or


(c)           prevent the Trustee
or any holder of Securities from exercising its available remedies upon a
Default or Event of Default, subject to the rights of holders and owners of
Designated Secured Indebtedness to receive distributions and payments otherwise
payable to holders of Securities.


If
the Company fails because of this Article XI to pay the Principal Amount, plus
any accrued and unpaid interest (including any Additional Interest), on a
Security on the due date, the failure is still a Default or Event of Default.


11.9        Subordination
May Not Be Impaired by Company.


No
right of any holder of Designated Secured Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or any Holder of Securities or by
the failure of the Company or any such Holder to comply with this Indenture.


11.10      Distribution
or Notice to Representative.


Whenever
a distribution is to be made or a notice given to holders of Designated Secured
Indebtedness, the distribution may be made and the notice given to their
representative.


Upon
any payment or distribution of assets of the Company referred to in this
Article XI, the Trustee and the holders of Securities shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon
any certificate of such representative or of the liquidating trustee or agent
or other person making any distribution to the Trustee or to the holders of
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Designated Secured Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XI.


11.11      Rights
of Trustee.


Notwithstanding
the provisions of this Article XI or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by the Trustee, and
the Trustee may continue to make payments on the Securities, unless a
Responsible Officer shall have received at least two Business Days prior to the
date of such payment or distribution written notice of facts that would cause
such payment or distribution with respect to the Securities to violate this
Article XI.  Only the Company may give
such notice.



 50
 









Nothing
in this Article XI shall impair the claims of, or payments to, the Trustee under
or pursuant to SECTION 7.7 hereof.


The
Trustee in its individual or any other capacity may hold Designated Secured
Indebtedness with the same rights it would have if it were not Trustee.


11.12      Authorization
to Effect Subordination.


Each
Holder of a Security by the Holder’s acceptance thereof authorizes and directs
the Trustee on the Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XI, and
appoints the Trustee to act as the Holder’s attorney-in-fact for any and all
such purposes.  If the Trustee does not
file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in SECTION 6.9 hereof at least 30 days before the
expiration of the time to file such claim, the Holders of any Designated
Secured Indebtedness or their representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Securities.


11.13      Article
Applicable to Paying Agents.


In
case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term “Trustee” as
used in this Article XI shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XI in addition to or in place of the Trustee; provided,
however, that the second and third paragraphs of Section 11.11 shall not apply
to the Company or any Subsidiary of the Company if it or such Subsidiary acts
as Paying Agent.


11.14      Designated
Secured Indebtedness Entitled to Rely.


The
holders of Designated Secured Indebtedness shall have the right to rely upon
this Article XI, and no amendment or modification of the provisions contained
herein shall diminish the rights of such holders unless the holders affected
thereby shall have agreed in writing thereto.


11.15      Permitted
Payments.


Notwithstanding
anything to the contrary in this Article XI, the Holders of Securities may
receive and retain at any time on or prior to the Maturity Date (i) securities
that are subordinated to at least the same extent as the Securities to (a)
Designated Secured Indebtedness, (b) any securities issued in exchange for
Designated Secured Indebtedness, and (c) shares of Common Stock, and (ii)
payments and other distributions made from any trust created pursuant to
SECTION 8.1.


XII.  GUARANTEE


12.1        Guarantee.


(a)           Each of the
Guarantors, for consideration received, jointly and severally, fully,
unconditionally and irrevocably guarantees to each Holder of Securities, and to
the Trustee on behalf of each such Holder, (i) the due and punctual payment of
principal and Interest (including Additional Interest), Redemption Price,
Repurchase Price, Make-Whole Payment (including interest accruing on or after
filing of any petition in bankruptcy or reorganization whether or not a claim
for post-filing interest is allowed in such proceeding), and other amounts, if
any, in respect of such Securities when and as the same shall become due and
payable, according to the terms thereof and of this Indenture, (ii) the due and
punctual performance of all other obligation, covenants and agreements of the
Company contained in the Securities and this Indenture, all in accordance with
the terms of such Securities and of this Indenture, and (iii) in the case of
any extension of time of payment or renewal of any Securities or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at stated
maturity, at redemption, by acceleration or otherwise, to be paid by such
Guarantor or through the other Guarantors as provided below.



 51
 









(b)           In all respects,
each Guarantor hereby agrees that its obligations hereunder shall be absolute
and unconditional, irrespective of the identity of the Company, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any such
Security or this Indenture, any failure to enforce the provisions of any such
Security or this Indenture, any waiver, modification or indulgence granted to
the Company with respect thereto, by the Holder of such Security or the
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor.


(c)           Each Guarantor
hereby waives diligence, presentment, demands of payment, filing of claims with
a court in the event of merger or bankruptcy of the Company, any right to require
a proceeding first against the Company, the benefit of discussion, protest or
notice with respect to any such Security or the Indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged as to any such Security or the Trustee except by payment in full of
the principal thereof, premium, if any, and interest thereon, and all other
amounts payable in respect thereof, all as provided in such Security and in
this Indenture. If the Trustee or any Holder is required by any court or
otherwise to return to the Company or the Guarantors, or any custodian,
receiver, liquidator, trustee or other similar official acting in relation to
the Company or the Guarantors, any amount paid to the Trustee or such Holder in
respect of any Security, this Guarantee, to the extent theretofore discharged
by the payment of such amount, shall be reinstated in full force and effect.


(d)           Each Guarantor
further agrees, to the fullest extent that they may lawfully do so, that, as between
the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the obligations guaranteed hereby may be accelerated
as provided in SECTION 6.2  hereof for
the purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition extant under any applicable bankruptcy law preventing such
acceleration in respect of the obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such obligations as provided in SECTION
6.2 hereof, such obligations (whether or not due any payable) shall forthwith
become due and payable by each Guarantor for the purpose of this Guarantee. The
obligations of each Guarantor hereunder shall be joint and several.


(e)           For purposes of this
Article XII, the liability of each Guarantor, shall be that amount from time to
time equal to the aggregate liability of such Guarantor hereunder, but shall be
limited to the least of (i) the aggregate amount of the obligation as stated in
the first sentence of this SECTION 12.1 with respect to the Securities
guaranteed pursuant to this Article XII issued pursuant to this Indenture, or
(ii) the amount, if any, which would not have (A) rendered such Guarantor “insolvent”
(as such term is defined in Section 101 (29) of the Federal Bankruptcy Code and
in Section 271 of the Debtor and Creditor Law of the State of New York, as each
is in effect at the date of this Indenture), or (B) left it with unreasonably
small capital at the time its Guarantee of the Securities was entered into,
after giving effect to the incurrence of existing Indebtedness immediately
prior to such time, provided, that it shall be a presumption in any lawsuit or
other proceeding in which a Guarantor is a party that the amount guaranteed is
the amount set forth in (i) above unless a creditor, or representative of
creditors, of such Guarantor or a trustee in bankruptcy of such Guarantor, as
debtor in possession, otherwise proves in such a lawsuit that the aggregate
liability of the Guarantor is limited to the amount set forth in (ii). In
making any determination as to the solvency or sufficiency of capital of a
Guarantor in accordance with the second preceding sentence, the right of such
Guarantor to contribution from other Guarantors, to subrogation pursuant to
SECTION 12.1(f) and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.


(f)            Each Guarantor
shall be subrogated to all rights of the Holder of any Securities and the
Trustee against the Company or any of the other Guarantors pursuant to the
provisions of this Guarantee; provided, however, that until the payment in full
of all obligations and all other amounts payable under this Guarantee, the
Guarantors hereby irrevocably waive any claim or other rights which they each
may now or hereafter acquire against the Company or any of the other Guarantors
that arise from the existence, payment, performance or enforcement of the
Guarantors’ obligations under this Guarantee, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of any Holder
and the Trustee on behalf of such Holder against the Company or any of the
other Guarantors or any collateral which any such Holder or the Trustee on
behalf of such Holder hereafter acquires, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company or any of the
other Guarantors, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim or
other rights. If any amount shall be paid to the Guarantors in violation of the
preceding sentence at any time prior to the payment in full 



 52
 









of all
obligations and all other amounts payable under this Guarantee, such amount
shall be deemed to have been paid to the Guarantors for the benefit of, and
held in trust for the benefit of such Holder and the Trustee on behalf of such
Holder, and shall forthwith be paid to the Trustee for the benefit of such
Holder to be credited and applied upon such guaranteed obligations, whether
matured or unmatured, in accordance with the terms of this Indenture. The
Guarantors acknowledge that the waiver set forth in this SECTION 12.1(f) is
knowingly made.


(g)           The Guarantee set
forth in this SECTION 12.1 shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on
such Security shall have been signed by or on behalf of the Trustee.


12.2        Obligations
of Guarantees Unconditional.


Nothing
contained in this ARTICLE XII or elsewhere in this Indenture or in any Security
is intended to or shall impair, as between the Guarantors and the Holders and
the Trustee, the obligation of each Guarantor, which is absolute and
unconditional, to pay to the Holders and the Trustee the principal of, premium,
if any, interest and all other amounts payable on the Securities (and to the
Trustee amounts due under SECTION 7.7) as and when the same shall become due
and payable in accordance with the provisions of this Guarantee, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon Default under this
Indenture.


12.3        Execution
of Guarantees.


To
evidence their guarantee to the Holders of Securities as specified in SECTION
12.1, each Guarantor hereby agrees to execute a notation relating to the
Guarantee on each such Security authenticated and made available for delivery
by the Trustee.  Each Guarantor agrees
that execution of this Indenture shall evidence its Guarantee of the expenses
of the Trustee as specified in SECTION 7.7 and its Guarantee to the Holders as
specified in SECTION 12.1.  Each
Guarantor hereby agrees that its Guarantee set forth in SECTION 12.1 shall
remain in full force and effect whether or not any endorsement of the Guarantee
is contained on any Security.  Each such
Guarantee shall be signed on behalf of each Guarantor by its Chairman of the
Board, President or a Vice President, or an Office, or Person authorized by
power of attorney to act on behalf of such Guarantor prior to the
authentication of the Security on which it is endorsed, and being made
available for delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. 
Such signatures upon the Guarantee may be manual or facsimile signatures
of the present, past or future such Officers and may be imprinted or otherwise
reproduced on the Guarantee, and in case any such Officer who shall have signed
the Guarantee shall cease to be such Officer before the Security on which such
Guarantee is endorsed shall have been authenticated and made available for
delivery by the Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and made available for delivery or disposed
of as though the person who signed the Guarantee had not ceased to be such
Officer of the Guarantor.


12.4        Release
of a Guarantor.


Upon
the sale or disposition (by merger or otherwise) of a Guarantor to an entity
which is not a Subsidiary of the Company with the consent of the Requisite Holders,
such Guarantor shall be deemed released from all obligations under its
Guarantee without any further action required on the part of the Trustee or any
Holder of Securities. Any Guarantor not so released remains liable for the full
amount of principal or premium, if any, interest and all other amounts, if any,
payable on the Securities and the payment obligations to the Trustee pursuant
to SECTION 7.7 of the Indenture as provided in the Guarantee. The Trustee shall
make available for delivery an appropriate instrument evidencing such release
upon receipt of a request of the Company accompanied by an Officers’
Certificate certifying as to the compliance with this Indenture.


12.5        Withholding.


All
payments made by a Guarantor, other than a 
Guarantor that is organized in or whose residence is the United States,
with respect to the Guarantees will 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 



 53
 









or on behalf of
any country of residence of a Guarantor (other than a Guarantor that is
organized in or whose residence is the United States) or any political
subdivision thereof or any authority therein or thereof, having power to tax, unless
the withholding or deduction of such taxes, duties, assessments or governmental
charges is then required by law. In the event that any country of residence of
a Guarantor (other than a Guarantor that is organized in or whose residence is
the United States or any political subdivision thereof) imposes any such
withholding or deduction on any payments made by a Guarantor with respect to
the Guarantees, such Guarantor will pay such additional amounts (the “Additional
Amounts”) as may be necessary in order that the net amounts received in respect
of such payments or sale or exchange by the Holders of the Securities or the
Trustee, as the case may be, after such withholding or deduction shall equal
the respective amounts which would have been received in respect of such
payments or sale or exchange in the absence of such withholding or deduction;
except that no such Additional Amounts shall be payable with respect to any
Security held by or on behalf of a Holder who is liable for such taxes, duties,
assessments or governmental charges in respect of such Security by reason of
his being a citizen or resident of, or carrying on a business in the country of
residence of any Guarantor. Notwithstanding the foregoing, a Guarantor making a
payment on the Securities pursuant to the Guarantee shall not be required to
pay any Additional Amounts if (a) the beneficial holder of a Security is sent
by certified mail return receipt requested (i) written notice no less than 60
days in advance of making such payment and (ii) the appropriate forms or
instructions necessary to enable such beneficial holder to certify or document
the availability of an exemption from, or reduction of, the withholding or
deduction of such taxes under applicable law, which instructions shall clearly
specify that Additional Amounts hereunder may not be paid if such forms are not
completed by such beneficial holder, and (b) the Guarantor that would otherwise
have to pay such Additional Amounts establishes to the satisfaction of the
Trustee that the obligation to pay such Additional Amounts would not have
arisen but for the failure of such beneficial holder to (i) duly complete such
forms as were actually sent by such beneficial holder or respond to such
instructions and (ii) provide to such Guarantor such duly completed forms or
responses to instructions.


XIII.  MISCELLANEOUS


13.1        Trust
Indenture Act Controls.


If
any provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision of the TIA shall control.


13.2        Notices.


Any
notice or communication by the Company, a Guarantor or the Trustee to the other
is duly given if in writing and delivered in person, sent by confirmed
facsimile transmission (provided that such notice or communication is also
given by another means permitted hereby), mailed by first-class mail or by
overnight delivery to the other party’s address stated in this SECTION
13.2.  The Company or the Trustee by
notice to the other may designate additional or different addresses for
subsequent notices or communications.


Any
notice or communication to a Holder shall be mailed to its address shown on the
register kept by the Registrar. 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 or delivered in the manner provided above, it
is duly given when so mailed or delivered, whether or not the addressee
receives it.


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


All
notices or communications shall be in writing.



 54
 









 


	
  

  	
   

  	
  The Company’s address is:

  	
   

  	
  Charys Holding Company, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  1117 Perimeter Center West, Suite N-415

  
	
   

  	
   

  	
   

  	
   

  	
  Atlanta, Georgia 30338

  
	
   

  	
   

  	
   

  	
   

  	
  Attention: Mr. Billy V. Ray, Jr., Chief Executive
  Officer

  
	
   

  	
   

  	
   

  	
   

  	
  Facsimile: (678) 443-2320

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Guarantor’s address is::

  	
   

  	
  c/o Charys Holding Company, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  1117 Perimeter Center West, Suite N-415

  
	
   

  	
   

  	
   

  	
   

  	
  Atlanta, Georgia 30338

  
	
   

  	
   

  	
   

  	
   

  	
  Attention: Mr. Billy V. Ray, Jr., Chief Executive
  Officer

  
	
   

  	
   

  	
   

  	
   

  	
  Facsimile: (678) 443-2320

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Trustee’s address is:

  	
   

  	
  The Bank of New York Trust Company, N.A.

  
	
   

  	
   

  	
   

  	
   

  	
  DM-GEO

  
	
   

  	
   

  	
   

  	
   

  	
  101 Barclay Street

  
	
   

  	
   

  	
   

  	
   

  	
  New York, New York 10286

  
	
   

  	
   

  	
   

  	
   

  	
  Attention: Corporate Trust Administration — Atlanta

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  The Bank of New York Trust Company, N.A.

  
	
   

  	
   

  	
   

  	
   

  	
  100 Ashford center North, Suite 520

  
	
   

  	
   

  	
   

  	
   

  	
  Atlanta, Georgia 30338

  
	
   

  	
   

  	
   

  	
   

  	
  Attention: Corporate Trust Department

  



 


13.3        Communication
by Holders with Other Holders.


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


13.4        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 Officers’
Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


(b)           an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.


Each
signer of an Officers’ Certificate or an Opinion of Counsel may (if so stated)
rely, effectively, upon an Opinion of Counsel as to legal matters and an
Officers’ Certificate or certificates of public officials as to factual matters
if such signer reasonably and in good faith believes in the accuracy of the
document relied upon.


13.5        Statements
Required in Certificate or Opinion.


Each
Officers’ Certificate or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:


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



 55
 









(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 or her 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.


13.6        Rules
by Trustee and Agents.


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


13.7        Legal
Holidays.


A “Legal
Holiday” is a Saturday, a Sunday or a day on which commercial banking
institutions are not required to be open in the City of New York, in the State
of New York. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on that payment for the intervening
period.


A “Business
Day” is a day other than a Legal Holiday.


13.8        Duplicate
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. Delivery
of an executed counterpart by facsimile shall be effective as delivery of a
manually executed counterpart thereof.


13.9        Governing
Law; Submission to Jurisdiction.


The
laws of the State of New York, without regard to principles of conflicts of
law, shall govern this Indenture, the Securities and the Guarantees.  The Company and the Guarantors submit to the
non-exclusive jurisdiction of the courts of the State of New York and the
courts of the United States of America, in each case located in the Borough of
Manhattan, New York, New York, over any suit, action or proceeding arising
under or in connection with this Indenture or the transactions contemplated
hereby or the Securities or the Guarantees. 
The Company and the Guarantors waive any objection that they may have to
the venue of any suit, action or proceeding arising under or in connection with
this Indenture or the transactions contemplated hereby or the Securities or the
Guarantees in the courts of the State of New York or the courts of the United
States of America, in each case located in the Borough of Manhattan, New York,
New York, or that such suit, action or proceeding brought in the courts of the
State of New York or the courts of the United States of America, in each case
located in the Borough of Manhattan, New York, New York, was brought in an
inconvenient court and agrees not to plead or claim the same.  By the execution and delivery of this
Indenture, each Guarantor irrevocably designates and appoints the Company as
such Guarantor’s authorized agent upon which process may be served in any such
suit or proceeding and to provide written notice of such service to such
Guarantor at such Guarantor’s principal office.


13.10      No
Adverse Interpretation of Other Agreements.


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



 56
 









13.11      Successors.


All
agreements of the Company and the Guarantors in this Indenture and the
Securities shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.


13.12      Separability.


In
case any provision in this Indenture or in the Securities or Guarantees 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 and a Holder shall have no claim therefor against any party hereto.


13.13      Table
of Contents, Headings, Etc.


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


13.14      Calculations
in Respect of the Securities.


The
Company and its agents shall make all calculations under this Indenture and the
Securities in good faith. In the absence of manifest error, such calculations
shall be final and binding on all Holders. The Company shall provide a copy of
such calculations to the Trustee and the Conversion Agent as required
hereunder, and, absent such manifest error, the Trustee shall be entitled to
rely on the accuracy of any such calculation without independent
verification.  The Trustee will forward
such calculations to any Holder upon request of the Holder.


13.15      Force
Majeure.


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


***THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;


SIGNATURE
PAGE FOLLOWS***



 57














 


[COMPANY
COUNTERPART TO INDENTURE]


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


	
  

  	
   

  	
   

  	
  CHARYS HOLDING COMPANY, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/Billy V. Ray, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Billy V. Ray, Jr., Chief Executive Officer

  












 


[TRUSTEE
COUNTERPART TO INDENTURE]


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


	
  

  	
   

  	
   

  	
  BANK OF NEW YORK TRUST COMPANY,

  
	
   

  	
   

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/Karen Z. Kelly

  
	
   

  	
   

  	
   

  	
   

  	
  Karen Z. Kelly, Vice President

  












 


[GUARANTORS
COUNTERPART TO INDENTURE]


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


	
  CROCHET & BOREL SERVICES, INC.

  	
   

  	
   

  	
  COTTON HOLDINGS 1, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Billy V. Ray, Jr.

  	
   

  	
   

  	
  By:

  	
  /s/ Billy V. Ray, Jr.

  
	
   

  	
  Name: Billy V. Ray, Jr.

  	
   

  	
   

  	
   

  	
  Name: Billy V. Ray, Jr.

  
	
   

  	
  Title: Chairman

  	
   

  	
   

  	
   

  	
  Title: Chairman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C&B HOLDINGS, INC.

  	
   

  	
   

  	
  AYIN HOLDING COMPANY INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Billy V. Ray, Jr.

  	
   

  	
   

  	
  By:

  	
  /s/ Billy V. Ray, Jr.

  
	
   

  	
  Name: Billy V. Ray, Jr.

  	
   

  	
   

  	
   

  	
  Name: Billy V. Ray, Jr.

  
	
   

  	
  Title: Chairman

  	
   

  	
   

  	
   

  	
  Title: Chairman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COMPLETE TOWER SOURCES INC.

  	
   

  	
   

  	
  MITCHELL SITE ACQUISITION, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Billy V. Ray, Jr.

  	
   

  	
   

  	
  By:

  	
  /s/ Billy V. Ray, Jr.

  
	
   

  	
  Name: Billy V. Ray, Jr.

  	
   

  	
   

  	
   

  	
  Name: Billy V. Ray, Jr.

  
	
   

  	
  Title: Chairman

  	
   

  	
   

  	
   

  	
  Title: Chairman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LFC, INC.

  	
   

  	
   

  	
  VIASYS NETWORK SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Billy V. Ray, Jr.

  	
   

  	
   

  	
  By:

  	
  /s/ Billy V. Ray, Jr.

  
	
   

  	
  Name: Billy V. Ray, Jr.

  	
   

  	
   

  	
   

  	
  Name: Billy V. Ray, Jr.

  
	
   

  	
  Title: Chairman

  	
   

  	
   

  	
   

  	
  Title: Chairman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VIASYS SERVICES, INC.

  	
   

  	
   

  	
  AYIN TOWER MANAGEMENT SERVICES,

  
	
   

  	
   

  	
   

  	
   

  	
  INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Billy V. Ray, Jr.

  	
   

  	
   

  	
  By:

  	
  /s/ Billy V. Ray, Jr.

  
	
   

  	
  Name: Billy V. Ray, Jr.

  	
   

  	
   

  	
   

  	
  Name: Billy V. Ray, Jr.

  
	
   

  	
  Title: Chairman

  	
   

  	
   

  	
   

  	
  Title: Chairman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COTTON COMMERCIAL USA, L.P.

  	
   

  	
   

  	
  COTTON RESTORATION OF CENTRAL

  
	
  By: Cotton USA GP, LLC, its General Partner

  	
   

  	
   

  	
  TEXAS, LP

  
	
   

  	
   

  	
   

  	
   

  	
  By: CCI-GP, LLC, its General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Billy V. Ray, Jr.

  	
   

  	
   

  	
  By:

  	
  /s/ Billy V. Ray, Jr.

  
	
   

  	
  Name: Billy V. Ray, Jr.

  	
   

  	
   

  	
   

  	
  Name: Billy V. Ray, Jr.

  
	
   

  	
  Title: Chairman

  	
   

  	
   

  	
   

  	
  Title: Chairman

  



 
















 


EXHIBIT A


FORM OF
GLOBAL SECURITY


[INTENTIONALLY
OMITTED]


 



 A-1















 


EXHIBIT
B-1


FORM OF
PRIVATE PLACEMENT LEGEND


THIS
SECURITY, THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY AND THE
GUARANTEE ATTACHED TO THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS
ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT) OR THAT IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR”
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT
TO EACH SUCH ACCOUNT, AND (2) AGREES THAT IT WILL NOT DIRECTLY OR INDIRECTLY
ENGAGE IN ANY HEDGING TRANSACTIONS INVOLVING THIS SECURITY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT, AND (3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT
OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL
INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT OR THAT IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT), OR (D)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(C) ABOVE, A DULY
COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM THE
TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY
TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR
OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR ANY STATE SECURITIES LAWS.


 



 B-1-1















 


EXHIBIT
B-2


FORM OF
LEGEND FOR GLOBAL SECURITY


Any
Global Security authenticated and delivered hereunder shall bear a legend
(which would be in addition to any other legends required in the case of a
Restricted Security) in substantially the following form:


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 OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


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


TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. 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 SECTION 2.16 OF
THE INDENTURE.


 



 B-2-1















 


EXHIBIT
B-3


FORM OF
LEGEND REGARDING REGISTRATION RIGHTS AGREEMENT


THIS
SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN REGISTRATION RIGHTS
AGREEMENT, DATED FEBRUARY 16, 2007, AMONG CHARYS HOLDING COMPANY, INC., MCMAHAN
SECURITIES CO. L.P. AND THE PARTIES IN INTEREST THERETO.


 



 B-3-1















 


EXHIBIT C


FORM OF
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT


Charys Holding Company,
Inc.

1117 Perimeter Center West, Suite N-415

Atlanta, Georgia  30338

Attention:  Mr. Billy V. Ray, Jr., Chief
Executive Officer


The Bank of New York
Trust Company, N.A.

DM-GEO

101 Barclay Street

New York, New York  10286

Attention:  Corporate Trust
Administration - Atlanta


The Bank of New York
Trust Company, N.A. 

100 Ashford center North, Suite 520 

Atlanta, Georgia 30338

Attention:  Corporate Trust Department


Re:                               Charys
Holding Company, Inc. (the “Company”) 8.75% Senior Convertible Securities due
2012 (the “Securities”)


Ladies and
Gentlemen:


Please
be advised that                    
has transferred $            
aggregate principal amount of the Securities (including the Guarantee endorsed
thereon) and                 
shares of the Common Stock, par value $0.01 per share, of the Company issued
upon conversion of the Securities (“Stock”) pursuant to an effective
Registration Statement on Form         
(File No. 333-                ).


We
hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933 as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the
Securities or Stock is named as a “Selling Security Holder” in the Prospectus
dated                   ,
or in amendments or supplements thereto, and that the aggregate principal
amount of the Securities and the number of shares of Stock transferred are [a
portion of] the Securities (including the Guarantee endorsed thereon) and Stock
listed in such Prospectus, as amended or supplemented, opposite such owner’s
name.


	
  Very truly yours,

  	
  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
   

  



 



 C-1