exv4w1






Exhibit 4.1




 






ENDEAVOUR INTERNATIONAL CORPORATION

as Issuer



AND



THE GUARANTORS NAMED ON THE SIGNATURE PAGE HEREOF

as Guarantors



AND



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee



 





Indenture



Dated as of July 22, 2011



5.5% Convertible Senior Notes due 2016



 










 









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 
	Trust Indenture	 	Indenture	 
	Act Section	 	Section	 
	310(a)(1)
	 	 	11.10	 
	(a)(2)
	 	 	11.10	 
	(a)(3)
	 	 	N/A	 
	(a)(4)
	 	 	N/A	 
	(a)(5)
	 	 	11.10	 
	(b)
	 	 	11.10	 
	(c)
	 	 	N/A	 
	311(a)
	 	 	11.14	 
	(b)
	 	 	11.14	 
	(c)
	 	 	N/A	 
	312(a)
	 	 	12.01	 
	(b)
	 	 	12.02	 
	(c)
	 	 	12.02	 
	313(a)
	 	 	12.03	 
	(b)(1)
	 	 	12.03	 
	(b)(2)
	 	 	11.07, 12.03	 
	(c)
	 	 	12.03, 16.02	 
	(d)
	 	 	12.03	 
	314(a)
	 	 	4.10, 4.15, 16.02	 
	(b)
	 	 	N/A	 
	(c)(1)
	 	 	1.02	 
	(c)(2)
	 	 	1.02	 
	(c)(3)
	 	 	N/A	 
	(d)
	 	 	N/A	 
	(e)
	 	 	1.02	 
	(f)
	 	 	N/A	 
	315(a)
	 	 	11.01	 
	(b)
	 	 	11.02, 16.02	 
	(c)
	 	 	11.01	 
	(d)
	 	 	11.01	 
	(e)
	 	 	9.13	 
	316(a)(last sentence)
	 	 	16.04	 
	(a)(1)(A)
	 	 	9.12	 
	(a)(1)(B)
	 	 	9.02	 
	(a)(2)
	 	 	N/A	 
	(b)
	 	 	9.08	 
	(c)
	 	 	1.04	 
	317(a)(1)
	 	 	9.04	 
	(a)(2)
	 	 	9.05	 
	(b)
	 	 	11.06	 
	318(a)
	 	 	16.01	 
	(b)
	 	 	N/A	 
	(c)
	 	 	16.01	 








 




			
	N/A means not applicable.
	 
	*	 	This Cross-Reference Table is not part of the Indenture.




i









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Compliance Certificates and Opinions
	 	 	11	 
	Section 1.03 Form of Documents Delivered to Trustee
	 	 	12	 
	Section 1.04 Acts of Holders; Record Dates
	 	 	12	 
	Section 1.05 [Reserved]
	 	 	13	 
	Section 1.06 Notice to Holders; Waiver
	 	 	13	 
	Section 1.07 Incorporation by Reference of Trust Indenture Act
	 	 	14	 
	Section 1.08 Benefits of Indenture
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 2 SECURITY FORMS
	 	 	14	 
	 
	 	 	 	 
	Section 2.01 Forms Generally
	 	 	14	 
	Section 2.02 Form of Face of Note
	 	 	14	 
	Section 2.03 Form of Reverse of Note
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 3 THE SECURITIES
	 	 	25	 
	 
	 	 	 	 
	Section 3.01 Title and Terms; Payments
	 	 	25	 
	Section 3.02 Ranking
	 	 	26	 
	Section 3.03 Denominations
	 	 	26	 
	Section 3.04 Execution, Authentication, Delivery and Dating
	 	 	26	 
	Section 3.05 Temporary Notes
	 	 	27	 
	Section 3.06 Registration; Registration of Transfer and Exchange
	 	 	27	 
	Section 3.07 Transfer Restrictions
	 	 	29	 
	Section 3.08 Expiration of Restrictions
	 	 	31	 
	Section 3.09 Mutilated, Destroyed, Lost and Stolen Notes
	 	 	32	 
	Section 3.10 Persons Deemed Owners
	 	 	33	 
	Section 3.11 Transfer and Exchange
	 	 	33	 
	Section 3.12 Cancellation
	 	 	36	 
	Section 3.13 CUSIP Numbers
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	36	 
	 
	 	 	 	 
	Section 4.01 Payment of Principal and Interest
	 	 	36	 
	Section 4.02 Maintenance of Office or Agency
	 	 	37	 
	Section 4.03 Appointments to Fill Vacancies in Trustee’s Office
	 	 	37	 
	Section 4.04 Provisions as to Paying Agent
	 	 	37	 
	Section 4.05 Existence
	 	 	38	 
	Section 4.06 [Reserved]
	 	 	39	 
	Section 4.07 [Reserved]
	 	 	39	 
	Section 4.08 Rule 144A Information Requirement
	 	 	39	 
	Section 4.09 Resale of Certain Notes
	 	 	39	 
	Section 4.10 Commission Filings and Reports
	 	 	39	 
	Section 4.11 Book-Entry System
	 	 	39	 
	Section 4.12 Additional Interest
	 	 	39	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 4.13 [RESERVED]
	 	 	40	 
	Section 4.14 Stay; Extension and Usury Laws
	 	 	40	 
	Section 4.15 Compliance Certificate
	 	 	40	 
	Section 4.16 Additional Subsidiary Guarantees
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 5 [RESERVED]
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 6 [RESERVED]
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 7 CONVERSION
	 	 	41	 
	 
	 	 	 	 
	Section 7.01 Right to Convert
	 	 	41	 
	Section 7.02 Conversion Procedure
	 	 	41	 
	Section 7.03 Settlement upon Conversion
	 	 	42	 
	Section 7.04 Adjustment of Conversion Rate
	 	 	43	 
	Section 7.05 Effect of Reclassification, Consolidation, Merger or Sale
	 	 	53	 
	Section 7.06 Adjustments of Prices
	 	 	54	 
	Section 7.07 Adjustment upon a Make-Whole Fundamental Change
	 	 	54	 
	Section 7.08 Taxes on Shares Issued
	 	 	56	 
	Section 7.09 Reservation of Shares; Shares to be Fully Paid; Compliance with Governmental Requirements
	 	 	56	 
	Section 7.10 Responsibility of Trustee and Conversion Agent
	 	 	57	 
	Section 7.11 Notice to Holders Prior to Certain Actions
	 	 	57	 
	Section 7.12 Shareholder Rights Plan
	 	 	58	 
	Section 7.13 Company Determination Final
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 8 PURCHASE AT OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE
	 	 	58	 
	 
	 	 	 	 
	Section 8.01 Purchase at Option of Holders upon a Fundamental Change
	 	 	58	 
	Section 8.02 Effect of Fundamental Change Purchase Notice
	 	 	61	 
	Section 8.03 Withdrawal of Fundamental Change Purchase Notice
	 	 	61	 
	Section 8.04 Deposit of Fundamental Change Purchase Price
	 	 	62	 
	Section 8.05 Notes Purchased in Whole or in Part
	 	 	62	 
	Section 8.06 Covenant to Comply With Securities Laws upon Purchase of Notes
	 	 	62	 
	Section 8.07 Repayment to the Company
	 	 	62	 
	Section 8.08 Payment or Consent for Other Secured Indebtedness
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 9 EVENTS OF DEFAULT; REMEDIES
	 	 	63	 
	 
	 	 	 	 
	Section 9.01 Events of Default
	 	 	63	 
	Section 9.02 Acceleration of Maturity: Waiver of Past Defaults and Rescission
	 	 	65	 
	Section 9.03 Additional Interest
	 	 	65	 
	Section 9.04 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	67	 
	Section 9.05 Trustee May File Proofs of Claim
	 	 	67	 
	Section 9.06 Application of Money Collected
	 	 	68	 
	Section 9.07 Limitation on Suits
	 	 	68	 
	Section 9.08 Unconditional Right of Holders to Receive Payment
	 	 	69	 
	Section 9.09 Restoration of Rights and Remedies
	 	 	69	 
	Section 9.10 Rights and Remedies Cumulative
	 	 	69	 
	Section 9.11 Delay or Omission Not Waiver
	 	 	69	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 9.12 Control by Holders
	 	 	69	 
	Section 9.13 Undertaking for Costs
	 	 	69	 
	Section 9.14 [Reserved.]
	 	 	70	 
	Section 9.15 Violations of Certain Covenants
	 	 	70	 
	 
	 	 	 	 
	ARTICLE 10 MERGER, CONSOLIDATION OR SALE OF ASSETS
	 	 	70	 
	 
	 	 	 	 
	Section 10.01 Company May Consolidate, etc., only on Certain Terms
	 	 	70	 
	Section 10.02 Successor Substituted
	 	 	71	 
	 
	 	 	 	 
	ARTICLE 11 THE TRUSTEE
	 	 	71	 
	 
	 	 	 	 
	Section 11.01 Duties and Responsibilities of Trustee
	 	 	71	 
	Section 11.02 Notice of Defaults
	 	 	72	 
	Section 11.03 Reliance on Documents, Opinions, Etc.
	 	 	72	 
	Section 11.04 No Responsibility for Recitals, Etc.
	 	 	74	 
	Section 11.05 Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes
	 	 	74	 
	Section 11.06 Monies to be Held in Trust
	 	 	74	 
	Section 11.07 Compensation and Expenses of Trustee
	 	 	74	 
	Section 11.08 Officers’ Certificate as Evidence
	 	 	75	 
	Section 11.09 Conflicting Interests of Trustee
	 	 	75	 
	Section 11.10 Eligibility of Trustee
	 	 	75	 
	Section 11.11 Resignation or Removal of Trustee
	 	 	75	 
	Section 11.12 Acceptance by Successor Trustee
	 	 	77	 
	Section 11.13 Succession by Merger, Etc.
	 	 	77	 
	Section 11.14 Preferential Collection of Claims
	 	 	78	 
	Section 11.15 Trustee’s Application for Instructions from the Company
	 	 	78	 
	 
	 	 	 	 
	ARTICLE 12 HOLDERS’ LISTS AND REPORTS BY TRUSTEE
	 	 	78	 
	 
	 	 	 	 
	Section 12.01 Company to Furnish Trustee Names and Addresses of Holders
	 	 	78	 
	Section 12.02 Preservation of Information; Communications to Holders
	 	 	78	 
	Section 12.03 Reports By Trustee
	 	 	79	 
	 
	 	 	 	 
	ARTICLE 13 SATISFACTION AND DISCHARGE
	 	 	79	 
	 
	 	 	 	 
	Section 13.01 Discharge of Indenture
	 	 	79	 
	Section 13.02 Deposited Monies to be Held in Trust by Trustee
	 	 	80	 
	Section 13.03 Paying Agent to Repay Monies Held
	 	 	80	 
	Section 13.04 Return of Unclaimed Monies
	 	 	80	 
	Section 13.05 Reinstatement
	 	 	80	 
	 
	 	 	 	 
	ARTICLE 14 SUPPLEMENTAL INDENTURES
	 	 	81	 
	 
	 	 	 	 
	Section 14.01 Supplemental Indentures without Consent of Holders
	 	 	81	 
	Section 14.02 Supplemental Indentures with Consent of Holders
	 	 	81	 
	Section 14.03 Execution of Supplemental Indentures
	 	 	82	 
	Section 14.04 Effect of Supplemental Indentures
	 	 	82	 
	Section 14.05 [Reserved.]
	 	 	83	 
	Section 14.06 Reference in Notes to Supplemental Indentures
	 	 	83	 
	Section 14.07 Notice to Holders of Supplemental Indentures
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 15 GUARANTEES OF NOTES
	 	 	83	 






iv









 






	 	 	 	 	 
	 	 	Page
	Section 15.01 Subsidiary Guarantees
	 	 	83	 
	Section 15.02 Guarantors May Consolidate, etc., on Certain Terms
	 	 	84	 
	Section 15.03 Releases of Subsidiary Guarantees
	 	 	85	 
	Section 15.04 Limitation on Guarantor Liability
	 	 	85	 
	Section 15.05 “Trustee” to Include Paying Agent
	 	 	85	 
	 
	 	 	 	 
	ARTICLE 16 MISCELLANEOUS
	 	 	86	 
	 
	 	 	 	 
	Section 16.01 Trust Indenture Act Controls
	 	 	86	 
	Section 16.02 Notices to Parties Hereto
	 	 	86	 
	Section 16.03 [Reserved.]
	 	 	87	 
	Section 16.04 When Notes Are Disregarded
	 	 	87	 
	Section 16.05 Rules by Trustee, Paying Agent and Registrar
	 	 	87	 
	Section 16.06 Legal Holidays
	 	 	87	 
	Section 16.07 Governing Law
	 	 	87	 
	Section 16.08 No Recourse against Others
	 	 	87	 
	Section 16.09 Successors
	 	 	87	 
	Section 16.10 Multiple Originals
	 	 	87	 
	Section 16.11 [Reserved]
	 	 	88	 
	Section 16.12 Table of Contents; Headings
	 	 	88	 
	Section 16.13 Severability Clause
	 	 	88	 
	Section 16.14 Calculations
	 	 	88	 
	Section 16.15 Waiver of Jury Trial
	 	 	88	 
	Section 16.16 Consent to Jurisdiction
	 	 	88	 
	Section 16.17 Force Majeure
	 	 	89	 






v









 





     INDENTURE, dated as of July 22, 2011, is among Endeavour International Corporation, a company
duly incorporated and existing under the laws of Nevada, United States of America, and having its
principal executive office at 1001 Fannin Street, Suite 1600, Houston, TX 77002 as Issuer (the
“Company”), the guarantors listed on the signature page hereof (each, a “Guarantor” and,
collectively, the “Guarantors”) and Wells Fargo Bank, National Association, as Trustee (the
“Trustee”).



RECITALS OF THE COMPANY AND GUARANTORS




     WHEREAS, the Company has duly authorized the creation of an issue of 5.5% Convertible Senior
Notes due 2016 (each a “Note” and collectively, the “Notes”) of the tenor and amount hereinafter
set forth, such Notes to be guaranteed by the Guarantors on the terms hereinafter set forth, and to
provide therefor each of the Company and the Guarantors has duly authorized the execution and
delivery of this Indenture; and



     WHEREAS, all things necessary to make the Notes, when duly issued, executed and delivered by
the Company and duly authenticated by the Trustee, the valid and legally binding obligations of the
Company, and to make this Indenture a valid and legally binding agreement of the Company and the
Guarantors, in accordance with the terms of the Notes and the Indenture, have been done.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the premises and the
purchases of the Notes by the Holders thereof, it is mutually agreed, by the parties thereto and
for the equal and proportionate benefit of all Holders of the Notes, as follows:



ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 1.01 Definitions. For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:




     (i) the terms defined in this Article 1 have the meanings assigned to them in this
Article and include the plural as well as the singular;




     (ii) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP; and




     (iii) the words “herein,” “hereof’ and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.



     “11.5% Convertible Bonds” means the 11.5% Guaranteed Convertible Bonds due 2014 (extended to
2016) issued by Endeavour Energy Luxembourg S.a.r.l. and guaranteed by the Company, including any
related notes, guarantees, collateral documents, instruments and agreements executed in connection
therewith.



     “15% Term Loan” means the Credit Agreement dated as of August 16, 2010 among the Company,
Endeavour Energy UK Limited and Cyan Partners, LP, including any related notes,



1









 




guarantees, collateral documents, instruments, agreements or amendments executed in connection
therewith.




     “Additional Interest” means all amounts, if any, payable pursuant to Section 9.03 hereof.
Unless the context otherwise requires, all references in this Indenture or the Notes to interest
include Additional Interest, if any. Any express reference to Additional Interest in this
Indenture or the Notes shall not be construed as excluding Additional Interest in any other text
where no such express reference is made.



     “Additional Notes” means any Notes (other than the Initial Notes) issued under this Indenture
in accordance with Section 3.01 hereof, with the same terms (other than the offering price) as the
Initial Notes.



     “Additional Shares” has the meaning specified in Section 7.07(a).



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



     “Agent Members” has the meaning specified in Section 3.06(b).



     “Applicable Conversion Price” means the Conversion Price in effect at any given time.



     “Applicable Conversion Rate” means the Conversion Rate in effect at any given time.



     “Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Note or any beneficial interest therein, the rules and procedures of the Depositary for such Note,
in each case to the extent applicable to such transfer or transaction and as in effect from time to
time.



     “Board of Directors” means, with respect to a corporation, either the board of directors of
the corporation or any duly authorized committee of that board, and with respect to any other
Person, the board or committee of such Person serving a similar function.



     “Board Resolution” means, with respect to any Person, a copy of a resolution certified by the
Secretary or an Assistant Secretary or the General Counsel of such Person 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.



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



     “Capital Stock” means any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock and, with respect to partnerships or limited
liability companies, partnership interests (whether general or limited) or membership interests, as



2









 




the case may be, and any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, such partnership.




     “Clause A Distribution” has the meaning specified in Section 7.04(c).



     “Clause B Distribution” has the meaning specified in Section 7.04(c).



     “Clause C Distribution” has the meaning specified in Section 7.04(c).



     “Close of Business” means 5:00 p.m. New York City time.



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



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act.



     “Common Stock” means the shares of common stock, $0.001 par value per share, of the Company as
they exist on the date of this Indenture, subject to the provisions of Section 7.05.



     “Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Order” or “Company Request” means a written request or order signed in the name of
the Company (a) by its Chief Executive Officer, its President, or its Chief Financial Officer or
any of its Vice Presidents, and (b) by its Treasurer, any Assistant Treasurer, its Secretary, any
Assistant Secretary or any of its Vice Presidents, and delivered to the Trustee.



     “Conversion Agent” means the Trustee or such other office or agency designated by the Company
where Notes may be presented for conversion.



     “Conversion Date” has the meaning specified in Section 7.02(b).



     “Conversion Notice” shall have the meaning specified in Section 7.02(b).



     “Conversion Price” means, per share of Common Stock, $1,000 divided by the Applicable
Conversion Rate.



     “Conversion Rate” means initially 54.0190 shares of Common Stock per $1,000 Principal Amount
of Notes, subject to adjustment as set forth herein.



     “Corporate Trust Office” means the office of the Trustee that administers this Indenture,
which office is, at the date as of which this Indenture is dated, located at 1445 Ross Avenue,
2nd Floor, Dallas, Texas 75202, Attention: Corporate Trust Services, or such other
address in the United States as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office in the United States of any
successor Trustee (or such other address in the United States as such successor Trustee may
designate from time to time by notice to the Holders and the Company).



3









 





     “Custodian” means Wells Fargo Bank, National Association, as custodian with respect to any
Global Notes, or any successor entity.



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



     “De Minimis Guaranteed Amount” means a principal amount of Indebtedness of $5.0 million.



     “Depositary” means DTC until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Depositary” shall mean such successor
Depositary.



     “Distributed Property” has the meaning specified in Section 7.04(c).



     “Domestic Subsidiary” means any Subsidiary of the Company that was formed under the laws of
the United States or any state of the United States or the District of Columbia, except for
Endeavour Energy North Sea L.P. and Endeavour Energy North Sea LLC so long as they are Subsidiaries
of any other Foreign Subsidiary of the Company.



     “DTC” means The Depository Trust Company.



     “Effective Date” has the meaning specified in Section 7.07(a).



     “Event of Default” has the meaning specified in Section 9.01.



     “Ex-Dividend Date” means the first date on which the shares of Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question, from the Company or, if applicable, from the seller
of the shares of Common Stock on such exchange or market (in the form of due bills or otherwise) as
determined by such exchange or market.



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



     “Expiration Date” has the meaning specified in Section 7.04(e).



     “Foreign Subsidiary” means (1) any Subsidiary of the Company that was not formed under the
laws of the United States or any state of the United States or the District of Columbia and (2)
Endeavour Energy North Sea L.P. and Endeavour Energy North Sea LLC so long as they are Subsidiaries
of any other Foreign Subsidiary of the Company.



     “Free Trade Date” means the date that is 366 days after the last date of original issuance of
the Notes.



     “Freely Tradable” means, with respect to any Notes, that such Notes are eligible to be sold by
a Person who is not an affiliate of the Company (within the meaning of Rule 144) and has not been
an affiliate of the Company (within the meaning of Rule 144) during the



4









 




immediately preceding three months without any volume or manner of sale restrictions under the
Securities Act.




     “Free Transferability Certificate” means a certificate substantially in the form of
Exhibit B.



     “Fundamental Change” means the occurrence of any of the following events at any time after the
Notes are originally issued:




     (1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other
than the Company, the Company’s Subsidiaries or the Company’s or the Company’s Subsidiaries’
employee benefit plans files a Schedule TO or any schedule, form or report under the
Exchange Act disclosing that such person or group has become the direct or indirect
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s common
equity representing more than 50% of the voting power of all outstanding classes of the
Company’s common equity entitled to vote generally in the election of the Company’s
directors;




     (2) consummation of (A) any share exchange, consolidation or merger involving the
Company pursuant to which the Common Stock will be converted into cash, securities or other
property or (B) any sale, lease or other transfer in one transaction or a series of
transactions of all or substantially all of the consolidated assets of the Company and the
Company’s Subsidiaries, taken as a whole, to any Person other than one or more of the
Company’s Subsidiaries; provided, however, that a share exchange, consolidation or merger
transaction described in clause (A) above in which the holders of more than 50% of all
shares of Common Stock entitled to vote generally in the election of the Company’s directors
immediately prior to such transaction own, directly or indirectly, more than 50% of all
shares of common stock entitled to vote generally in the election of the directors of the
continuing or surviving entity or the parent entity thereof immediately after such
transaction shall not, in either case, be a Fundamental Change;




     (3) the Company’s shareholders approve any plan or proposal for the liquidation or
dissolution of the Company; or




     (4) the Common Stock (or other Capital Stock into which the Notes are then convertible
pursuant to the terms of this Indenture) ceases to be listed on any of The New York Stock
Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their
respective successors).


A Fundamental Change as a result of clause (1) or (2) above will not be deemed to have occurred if
at least 90% of the consideration received or to be received by holders of shares of Common Stock
(excluding cash payments for fractional shares and cash payments made pursuant to dissenters’
appraisal rights) in connection with the transaction or transactions constituting the Fundamental
Change consists of Publicly Traded Securities and as a result of such transaction or transactions,
the Notes become convertible into such consideration, excluding cash payments for fractional shares
and cash payments made pursuant to dissenters’ appraisal rights.




     “Fundamental Change Company Notice” has the meaning specified in Section 8.01(b).



5









 





     “Fundamental Change Purchase Date” has the meaning specified in Section 8.01(a).



     “Fundamental Change Purchase Notice” has the meaning specified in Section 8.01(a)(i).



     “Fundamental Change Purchase Price” has the meaning specified in Section 8.01(a).



     “GAAP” means generally accepted accounting principles in the United States, as in effect on
the date hereof.



     “Global Note” means a Note in global form registered in the Register in the name of a
Depositary or a nominee thereof.



     “Global Notes Legend” has the meaning specified in Section 2.02.



     The term “guarantee” means a guarantee, other than by endorsement of negotiable instruments
for collection in the ordinary course of business, direct or indirect, in any manner including,
without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness or entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part). When used as a verb,
“guarantee” has a correlative meaning.



     “Guarantors” means each of (a) the Subsidiaries of the Company executing this Indenture as
initial Guarantors, (b) any other Subsidiary of the Company that executes a supplement to this
Indenture in accordance with Section 4.16 or 15.02 hereof and (c) the respective successors and
assigns of such Subsidiaries in each case until such time as any such Subsidiary shall be released
and relieved of its obligations pursuant to Section 4.16 or 15.03 hereof.



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



     “Indebtedness” means, with respect to any specified Person, (a) any indebtedness of such
Person, whether or not contingent, in respect of borrowed money, (b) all obligation of such Person
evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’
acceptances (or reimbursement agreements in respect thereof), (c) all lease obligations of such
Person capitalized in accordance with GAAP, (d) all obligations of such Person under any agreement
or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in
interest rates, commodity prices or currency exchange rates and (e) all obligations representing
the balance deferred and unpaid of the purchase price of any property (other than (i) property
purchased, and expense accruals and deferred compensation items arising, in the ordinary course of
business, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset
to satisfy warranty or other unperformed obligations of the respective seller and (iii) any
obligation of a Person in respect of the balance deferred and unpaid of the purchase price of any
property in respect of a farm-in agreement or similar arrangement whereby such Person agrees to pay
all or a share of the drilling, development, completion or other expenses of an exploratory or
development well or program (which agreement may be subject to a maximum payment obligation, after
which expenses are shared in accordance with the working or participation interest therein or in
accordance with the agreement of the parties) or perform the



6









 




drilling, completion or other operation on such well or program in exchange for an ownership
interest in an oil or gas property).




     In addition, the term “Indebtedness” includes all Indebtedness of other Persons secured by a
lien on any asset of the specified Person, whether or not such Indebtedness is assumed by the
specified Person (provided that the amount of such Indebtedness will be the lesser of (a) the fair
market value of such asset at such date of determination and (b) the amount of such Indebtedness of
such other Person), and, to the extent not otherwise included, the guarantee by the specified
Person of any Indebtedness of any other Person.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture.



     “Initial Notes” has the meaning specified in Section 3.01.



     “Initial Purchasers” means Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC.



     “Interest Payment Date” means each January 15 and July 15 of each year, beginning January 15,
2012.



     “Issue Date” means the first date the Notes are originally issued under this Indenture.



     “Last Reported Sale Price” means, on any Trading Day, the closing sale price per share of
Common Stock (or if no closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and/or the average ask prices) of the
Common Stock on that Trading Day as reported in composite transactions for the principal United
States national or regional securities exchange on which the Common Stock is traded. If the Common
Stock is not listed for trading on a United States national or regional securities exchange on the
relevant Trading Day, the “Last Reported Sale Price” will be the last quoted bid price per share of
Common Stock in the over-the-counter market on the relevant Trading Day as reported by OTC Markets
Group Inc. or similar organization selected by the Company. If the Common Stock is not so quoted,
the “Last Reported Sale Price” will be the average of the mid-point of the last bid and ask prices
per share of Common Stock on the relevant date from a nationally recognized independent investment
banking firm selected by the Company for this purpose.



     “Legal Holiday” is a Saturday, a Sunday or other day on which the Federal Reserve Bank of New
York is authorized or required by law or executive order to close or be closed.



     “Material Domestic Subsidiary” means any Domestic Subsidiary that is not a Guarantor whose
total assets exceed $2.0 million as reflected in the latest consolidated balance sheet of the
Company prepared in accordance with GAAP.



     “Maturity Date” means July 15, 2016.



7









 





     “Make-Whole Fundamental Change” means any transaction or event that would constitute a
Fundamental Change pursuant to clause (1), clause (2) or clause (4) of the definition thereof
(determined after giving effect to any exceptions or exclusions to such definition, but without
regard to the proviso in clause (2) of the definition thereof, but subject to the paragraph
immediately following clause (4) of the definition thereof).



     “Merger Event” has the meaning specified in Section 7.05.



     “Non-Recourse Debt” means Indebtedness:




	 	(1)	 	as to which neither the Company nor any Guarantor (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c)
is the lender; and
	 
	 	(2)	 	no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against a Subsidiary that is not a
Guarantor) would permit upon notice, lapse of time or both any holder of any other
Indebtedness (other than the Notes) of the Company or any of its Subsidiaries to
declare a default on such other Indebtedness or cause the payment of the Indebtedness
to be accelerated or payable prior to its stated maturity; and
	 
	 	(3)	 	the explicit terms of which provide there is no recourse against any of the
property or assets of the Company or any Guarantor.





     “Notes” has the meaning specified in the first paragraph of the Recitals of the Company and
Guarantors, and includes any Note or Notes, as the case may be, authenticated and delivered under
this Indenture, including any Global Note. The Initial Notes and the Additional Notes shall be
treated as a single class for all purposes under this Indenture, including, without limitation,
waivers, amendments and repurchase offers.



     “Notice of Default” means written notice provided to the Company by the Trustee or to the
Company and the Trustee by the Holders of not less than 25% in aggregate Principal Amount of Notes
outstanding of a Default by the Company, which notice must specify the Default, demand that it be
remedied and expressly state that such notice is a “Notice of Default.”



     “Offering Memorandum” means the preliminary offering memorandum dated July 18, 2011, as
supplemented by the pricing term sheet dated July 18, 2011, relating to the offering and sale of
the Initial Notes.



     “Officers’ Certificate” means a certificate signed (a) by the Chief Executive Officer, the
President, the Chief Financial Officer or any of the Vice Presidents of the Company, and (b) by the
Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or any of the Vice
Presidents of the Company, and delivered to the Trustee.



     “Open of Business” means 9:00 a.m., New York City time.



8









 





     “Opinion of Counsel” means a written opinion of counsel, who may be external or in-house
counsel for the Company.



     “outstanding” when used with reference to Notes, shall, subject to the provisions of Section
16.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:




     (i) Notes theretofore canceled by the Trustee or accepted by the Trustee for
cancellation;




     (ii) Notes, or portions thereof, that have become due and payable and in respect of
which monies in the necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent);




     (iii) Notes that have been paid pursuant to Section 3.1 and Notes in lieu of which, or
in substitution for which, other Notes shall have been authenticated and delivered pursuant
to the terms of Section 3.09 unless proof satisfactory to the Trustee is presented that any
such Notes are held by protected purchasers in whose hands such Notes are valid obligations
of the Company; and




     (iv) Notes converted pursuant to Article 7 and required to be cancelled pursuant to
Section 3.12.



     “Paying Agent” means any Person (including the Company) authorized by the Company to pay the
Principal Amount of, interest on, including Additional Interest or the Fundamental Change Purchase
Price of, any Notes on behalf of the Company. Wells Fargo Bank, National Association shall
initially be the Paying Agent at its corporate trust office in the City and State of New York.



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



     “Physical Notes” means permanent certificated Notes in registered form issued in minimum
denominations of $1,000 Principal Amount and in integral multiples of $1,000 in excess thereof.



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



     “Publicly Traded Securities” means shares of Capital Stock traded on The New York Stock
Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective
successors), or, with respect to a transaction that otherwise would be a Fundamental Change, which
will be so traded when issued or exchanged in connection with such transaction.



9









 





     “Purchase Agreement” means the Purchase Agreement, dated July 18, 2011, entered into by the
Company, the Guarantors and the Initial Purchasers in connection with the sale of the Notes.



     “Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A.



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



     “Reference Property” has the meaning specified in Section 7.05.



     “Register” and “Registrar” have the respective meanings specified in Section 3.06.



     “Regular Record Date” means, with respect to the payment of interest on the Notes (including
Additional Interest, if any) Close of Business on January 1 or July 1, as the case may be,
immediately preceding the relevant Interest Payment Date.



     “Resale Restriction Termination Date” has the meaning specified in Section 3.08(b)(ii).



     “Restricted Global Note” has the meaning specified in Section 3.08(b)(i).



     “Restricted Note” has the meaning specified in Section 3.07(a)(i).



     “Restricted Notes Legend” means a legend substantially in the form set forth in Section 2.02.



     “Restricted Stock” has the meaning specified in Section 3.07(b)(i).



     “Restricted Stock Legend” means a legend substantially in the form set forth in Exhibit
A hereto.



     “Rule 144” means Rule 144 under the Securities Act (including any successor rule thereto), as
the same may be amended from time to time.



     “Rule 144A” means Rule 144A under the Securities Act (including any successor rule thereto),
as the same may be amended from time to time.



     “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.



     “Share Price” has the meaning specified in Section 7.07(c).



     “Significant Subsidiary” shall have the meaning given to such term in Rule 1-02(w) of
Regulation S-X under the Exchange Act as in effect on the date of this Indenture.



10









 





     “Spin-Off” has the meaning specified in Section 7.04(c).



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



     “Subsidiary Guarantee” means the joint and several guarantee pursuant to Article 15 hereof by
a Guarantor of the Company’s obligations under this Indenture and the Notes.



     “Successor Entity” has the meaning specified in Section 10.01.



     “Trading Day” means a day during which (i) trading in securities generally occurs on the
principal United States national or regional securities exchange on which the Common Stock is then
listed or admitted for trading or, if the Common Stock is not then listed or admitted for trading
on a United States national or regional securities exchange, on the principal other market on which
the Common Stock is then traded, and (ii) a Last Reported Sale Price for the Common Stock is
available on such securities exchange or market. If the Common Stock is not so listed or traded,
“Trading Day” means a Business Day.



     “Trigger Event” has the meaning specified in Section 7.04(c).



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such successor Trustee.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Indenture; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939, as so amended.



     “Trust Officer” means any officer of the Trustee within the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this Indenture and also, with respect
to a particular matter, any other officer of the Trustee to whom such matter is referred because of
such officer’s knowledge and familiarity with the particular subject.



     “U.S.” means the United States of America.



     “Valuation Period” has the meaning set forth in Section 7.04(c).



     “Vice President” means any vice president, whether or not designated by a number or a word or
words added before or after the title “vice president.”



     Section 1.02 Compliance Certificates and Opinions. Upon any application or request by the
Company to the Trustee to take or refrain from taking any action under any provision of



11









 







this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate and, unless
otherwise provided herein, an Opinion of Counsel.



     Every Officers’ Certificate or Opinion of Counsel with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided pursuant to Trust
Indenture Act § 314(a)(4)) shall comply with the provisions of Trust Indenture Act § 314(e) and
shall include:



     (a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;



     (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 each such individual, such individual has made such
examination or investigation as is necessary to enable such individual 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, in the opinion of each such individual, such condition or
covenant has been complied with.



     In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers
Certificate or certificates of public officials.



     Section 1.03 Form of Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.



     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.



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



     Section 1.04 Acts of Holders; Record Dates. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the Notes may take



12









 







action (including the making of any demand or request, the giving of any direction, notice, consent
or waiver or the taking of any other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by Holders in person or by an agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor thereof at any meeting of
Holders duly called and held in accordance with procedures approved by the Trustee, (c) by a
combination of such instrument or instruments and any such record of such a meeting of Holders or
(d) in the case of Notes evidenced by a Global Note, by any electronic transmission or other
message, whether or not in written format, that complies with the Depositary’s applicable
procedures.



     The fact and date of the execution by any Person of any such instrument may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the individual signing such
instrument acknowledged to him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution of any such
instrument, or the authority of the Person executing the same, may also be proved in any other
manner which the Trustee reasonably deems sufficient.



     The Company may, in the circumstances permitted by this Indenture, fix any day as the record
date for the purpose of determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the Company prior to the
first solicitation of a Holder made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or vote shall be the 30th
day (or, if later, the date of the most recent list of Holders required to be provided pursuant to
Section 12.01) prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.



     The ownership of Notes shall be proved by the Register.



     Any request, demand, authorization, direction, notice, consent, waiver or other action of the
Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.



     Section 1.05 [Reserved].



     Section 1.06 Notice to Holders; Waiver. Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at such Holder’s address as it appears in the Register, not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in



13









 




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




     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



     Section 1.07 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and
made a part of this Indenture. Any terms incorporated in this Indenture that are defined by the
Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by
Commission rule under the Trust Indenture Act have the meanings so assigned to them.



     Section 1.08 Benefits of Indenture. Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their respective successors
hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim
under this Indenture.



ARTICLE 2

SECURITY FORMS




     Section 2.01 Forms Generally. The Notes and the Trustee’s certificates of authentication
shall be in substantially the forms set forth in this Article, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor, the Code and regulations thereunder, or as may, consistently herewith, be determined by
the officers executing such Notes, as evidenced by their execution thereof.



     The Notes shall initially be issued in the form of permanent Global Notes in registered form
in substantially the form set forth in this Article. The aggregate Principal Amount of the Global
Notes 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.



     Section 2.02 Form of Face of Note. NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT) OF THE COMPANY DURING THE IMMEDIATELY PRECEDING NINETY DAYS MAY RESELL THIS
NOTE OR A BENEFICIAL INTEREST HEREIN.


[Include the following legend for Global Notes only (the “Global Notes Legend”):]







14









 








     [THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (“DTC”), A NEW YORK CORPORATION, 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 IN AS
MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


[Include the following legend on all Notes that are Restricted Notes (the “Restricted Notes
Legend”):]




     [THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.



     THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”)
WHICH IS ONE YEAR 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 NOTE (OR ANY PREDECESSOR OF SUCH
NOTE) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,



15









 




SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (B) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.]




5.5% Convertible Senior Notes due 2016




			
	 	 	 
	No. [   ]
	 	U.S. $[   ]





	 	 	 

	CUSIP NO.

	 	29257M AD2
	ISIN NO.

	 	US29257MAD20






     Endeavour International Corporation, a company duly incorporated and validly existing under
the laws of the state of Nevada in the United States of America (herein called the “Company”),
which term includes any Successor Entity under the Indenture referred to on the reverse hereof),
for value received hereby promises to pay to [          ], or registered
assigns, the principal sum of [          ] UNITED STATES DOLLARS (U.S. $[          ]) (which amount may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as Custodian for the Depositary, in accordance with the rules and
procedures of the Depositary and in accordance with the below referred Indenture) on July 15, 2016.
The Principal Amount of Physical Notes and interest thereon, as provided on the reverse hereof,
shall be payable at the office of the Paying Agent in the City and State of New York and at any
other office or agency maintained by the Company for such purpose, upon surrender of such Physical
Notes. The Paying Agent will pay principal of any Global Note and interest thereon, as provided on
the reverse hereof, in immediately available funds to The Depository Trust Company or its nominee,
as the case may be, as the registered holder of such Global Note, on each Interest Payment Date,
Fundamental Change Purchase Date or other payment date, as the case may be.



     Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the Holder the right to convert this Note into
shares of Common Stock of the Company and to the ability and obligation of the Company to purchase
this Note upon certain events, in each case, on the terms and subject to the limitations referred
to on the reverse hereof and as more fully specified in the Indenture. Such further provisions
shall for all purposes have the same effect as though fully set forth at this place. Capitalized
terms used but not defined herein shall have such meanings as are ascribed to such terms in the
Indenture. In the case of any conflict between this Note and the Indenture, the provisions of the
Indenture shall control.



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



16









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 	 	 

	 	 	ENDEAVOUR INTERNATIONAL CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





17









 





CERTIFICATE OF AUTHENTICATION



This is one of the Notes referred to in the within-mentioned Indenture.




Wells Fargo Bank, National Association,

  as Trustee




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 






Date of authentication:                                        




     Section 2.03 Form of Reverse of Note.



ENDEAVOUR INTERNATIONAL CORPORATION




5.5% Convertible Senior Notes due 2016



     This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.5%
Convertible Senior Notes due 2016 (the “Notes”), initially limited in aggregate principal amount to
$135,000,000, which amount may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as Custodian for the Depositary, in accordance with the rules and
procedures of the Depositary and in accordance with the below referred Indenture) all issued or to
be issued under and pursuant to an Indenture dated as of July 22, 2011 (the “Indenture”) among the
Company, the guarantors named on the signature pages thereof (the “Guarantors”), and Wells Fargo
Bank, National Association, as Trustee (the “Trustee”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantors
and the Holders of the Notes. The Indenture provides that Additional Notes may be issued
thereunder, if certain conditions are met.



     Interest. The Notes will bear interest at a rate of 5.5% per year. Interest on the
Notes will accrue from, and including, July 22, 2011, or from the most recent date to which
interest has been paid or duly provided for. Interest will be payable semiannually in arrears on
each Interest Payment Date, beginning January 15, 2012. Pursuant to Section 9.03 of the Indenture,
in certain circumstances, the Holders of Notes shall be entitled to receive Additional Interest.



     Interest will be paid to the Person in whose name a Note is registered at the Close of
Business on the January 1 or July 1 (whether or not such date is a Business Day), as the case may
be, immediately preceding the relevant Interest Payment Date. Interest on the Notes will be
computed on the basis of a 360-day year composed of twelve 30-day months.



18









 





     Interest will cease to accrue on a Note upon its stated maturity, conversion or repurchase in
connection with a Fundamental Change.



     Ranking. The Notes constitute a general unsecured and unsubordinated obligation of
the Company.



     Guarantees. The payment by the Company of the principal of, interest and Additional
Interest, if any, on the Notes is fully and unconditionally guaranteed on a joint and several
senior unsecured basis by each of the Guarantors to the extent set forth in the Indenture.



     No Optional Redemption. The Notes are not redeemable by the Company prior to their
stated maturity date. No sinking fund is provided for the Notes.



     Purchase at the Option of the Holder Upon a Fundamental Change. Subject to the terms
and conditions of the Indenture, the Company shall become obligated, at the option of the Holder,
to repurchase the Notes if a Fundamental Change occurs at any time prior to the Maturity Date at
100% of the Principal Amount together with accrued and unpaid interest to, but excluding, the
Fundamental Change Purchase Date, which amount will be paid in cash.



     Withdrawal of Fundamental Change Purchase Notice. Holders have the right to withdraw,
in whole or in part, any Fundamental Change Purchase Notice by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture. The right to
withdraw the Fundamental Change Purchase Notice will terminate at the Close of Business on the
Business Day immediately preceding the relevant Fundamental Change Purchase Date.



     Payment of Fundamental Change Purchase Price. If money sufficient to pay the
Fundamental Change Purchase Price of all Notes or portions thereof to be purchased on a Fundamental
Change Purchase Date is deposited with the Paying Agent on the Fundamental Change Purchase Date,
such Notes will cease to be outstanding and interest will cease to accrue on such Notes (or
portions thereof) immediately after the Close of Business on such Fundamental Change Purchase Date,
and the Holder thereof shall have no other rights as such (other than the right to receive the
Fundamental Change Purchase Price, upon surrender of such Note).



     Conversion. Subject to and upon compliance with the provisions of the Indenture
(including without limitation the conditions of conversion of this Note set forth in Article 7
thereof), the Holder hereof has the right, at its option, to convert the Principal Amount hereof or
any portion of such principal which is $1,000 or an integral multiple of $1,000 in excess thereof,
into shares of Common Stock at the Applicable Conversion Rate. The Conversion Rate is initially
54.0190 shares of Common Stock per $1,000 Principal Amount of Notes (equivalent to an initial
Conversion Price of approximately $18.51), subject to adjustment in certain events described in the
Indenture. Upon conversion, the Company will deliver shares of Common Stock as set forth in the
Indenture. No fractional shares will be issued upon any conversion, but a payment in cash will be
made, as provided in the Indenture, in respect of any fraction of a share which would otherwise be
issuable upon the surrender of any Notes for conversion. Notes in respect of which a Holder is
exercising its right to require repurchase on a Fundamental Change



19









 




Purchase Date may be converted only if such Holder withdraws the related election to exercise
such right in accordance with the terms of the Indenture.




     In the event of a deposit or withdrawal of an interest in this Note, including an exchange,
transfer, repurchase or conversion of this Note in part only, the Trustee, as custodian of the
Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in
accordance with the rules and procedures of the Depositary.



     Acceleration of Maturity. Subject to certain exceptions in the Indenture, if an Event
of Default shall occur and be continuing, the Principal Amount plus interest through such date on
all the Notes may be declared due and payable in the manner and with the effect provided in the
Indenture.



     Supplemental Indentures with Consent of Holders; Waiver of Past Defaults. The
Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the
Notes under the Indenture at any time by the Company, the Guarantors and the Trustee with the
consent of the Holders of not less than a majority in aggregate Principal Amount of the outstanding
Notes. The Indenture also contains provisions permitting the Holders of specified percentages in
aggregate Principal Amount of the outstanding Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and certain past Defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of any
provision of or applicable to this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.



     Registration of Transfer and Exchange. As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this Note is registrable in the Register,
upon surrender of this Note for registration of transfer at the office or agency of the Company in
the United States, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate Principal Amount, will be issued to the designated transferee or
transferees.



     No service charge shall be made for any such registration of transfer or exchange, but the
Company and the Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.



     Prior to due presentment of this Note for registration of transfer, the Company, the
Guarantors, the Trustee and the Registrar and any agent of the Company, the Guarantors or the
Trustee may treat the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.



20









 





     Denominations. The Notes are issuable only in registered form in minimum
denominations of $1,000 and any integral multiple of $1,000 in excess thereof, as provided in the
Indenture and subject to certain limitations therein set forth. Notes are exchangeable for a like
aggregate Principal Amount of Notes of a different authorized denomination, as requested by the
Holder surrendering the same.



     This Note shall be governed by and construed in accordance with the laws of the State of New
York.



     All terms used in this Note that are defined in the Indenture shall have the meanings assigned
to them in the Indenture.



21









 





ASSIGNMENT FORM




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



     In connection with any transfer of the within Note occurring prior to the Resale Restriction
Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that
such Note is being transferred:




	 	o	 	To Endeavour International Corporation or a subsidiary thereof; or
	 
	 	o	 	Pursuant to a registration statement that has become or been declared effective
under the Securities Act of 1933, as amended; or
	 
	 	o	 	Pursuant to and in compliance with Rule 144A under the Securities Act of 1933,
as amended; or
	 
	 	o	 	Pursuant to and in compliance with Rule 144 under the Securities Act of 1933,
as amended, or any other available exemption from the registration requirements of the
Securities Act of 1933, as amended.





TO BE COMPLETED BY PURCHASER IF THE THIRD BOX ABOVE IS CHECKED




     The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.



	 	 	 	 	 	 	 	 	 

	Date:

	 	 	 	 	 	Signed:	 	 
	 

	 	 
	 	 	 	 	 	 





     Unless one of the above boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any Person other than the registered Holder thereof,
provided that if the third or fourth box is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Notes, in its sole discretion, such legal opinions,
certifications and other information as the Company or the Trustee may reasonably request to
confirm that such transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.



     If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any Person other than the Holder hereof unless and until the



22









 




conditions to any such transfer of registration set forth herein and in Section 3.11 of the
Indenture shall have been satisfied.




	 	 	 

	Dated:

	 	 
	  
	 	 
	 
	 
	 	 
	 	 	 
	 
	 
	 	 
	 	 	 
	Signature(s)
	 	 
	 
	 	 
	 	 	 
	Signature Guarantee
	 	 
	 
	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.
	 	 





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







23









 








CONVERSION NOTICE



If you want to convert this Note into Common Stock of the Company, check the box: o



To convert only part of this Note, state the Principal Amount to be converted (which must be
$1,000 or an integral multiple of $1,000 in excess thereof):



$_____________________



If you want the share certificate, if any, made out in another Person’s name, fill in the form
below:




	 	 	 

	 

(Insert other Person’s social security or tax ID no.)

	 	 
	 
	 	 
	 

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

	 	 
	 
	 	 
	Signature Guarantee:
	 	 
	 


	 	 





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







24









 








[Form of Fundamental Change Repurchase Notice]




To: Wells Fargo Bank, National Association

1445 Ross Avenue, 2nd Floor

Dallas, Texas 75202

Attention: Corporate Trust Services

Facsimile: (214) 777-4086




     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Endeavour International Corporation (the “Company”) as to the occurrence of a Fundamental Change
with respect to the Company and specifying the Fundamental Change Purchase Date and requests and
instructs the Company to pay to the registered holder hereof in accordance with the applicable
provisions of the Indenture referred to in this Note (1) the entire Principal Amount of this Note,
or the portion thereof (that is, a minimum of $1,000 or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Purchase Date does not fall during the period after
a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and
unpaid interest, if any, thereon to, but excluding, such Fundamental Change Purchase Date.



     In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as
set forth below:


Dated:                                        




	 	 	 	 	 

	 

	 	 	 	 
	 	 	Signature(s)
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Social Security or Other Taxpayer	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Identification Number	 	 
	 
	 	 	 	 
	 

	 	Principal amount to be repaid (if less than all):	 	 
	 

	 	$_________,000	 	 






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



ARTICLE 3

THE SECURITIES




     Section 3.01 Title and Terms; Payments. The aggregate Principal Amount of Notes that may
be authenticated and delivered under this Indenture is initially limited to $135,000,000 (the
“Initial Notes”), except for Notes as set forth in the Purchase Agreement authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of, other Notes pursuant
to Sections 3.05, 3.06, 3.07, 3.08, 3.09, 3.11, 3.12, 8.05 or 14.06. Initial Notes in an aggregate



25









 




Principal Amount of $135,000,000 shall be issued on the date hereof upon the Company’s compliance
with Section 3.04. The Company may, from time to time after the execution of this Indenture,
execute and deliver to the Trustee for authentication Additional Notes of an unlimited aggregate
principal amount, and the Trustee shall thereupon authenticate and deliver said Additional Notes to
or upon the written order of the Company, without any further action by the Company hereunder;
provided, however, that (1) if any such Additional Notes are not fungible with the Initial Notes
for U.S. federal income tax purposes, any such Additional Notes will have a separate CUSIP number;
(2) such Additional Notes must be issued pursuant to the same terms (other than the offering price)
and as the Initial Notes; and (3) the Trustee must receive an Officers’ Certificate to the effect
that such issuance of Additional Notes complies with the provisions of this Indenture, including
each provision of this paragraph.




     The Notes shall be known and designated as the “5.5% Convertible Senior Notes due 2016” of the
Company. The Principal Amount shall be payable on the Maturity Date.



     The Principal Amount of Physical Notes shall be payable at the office of the Paying Agent in
the City and State of New York and at any other office or agency maintained by the Company for such
purpose. Interest on Physical Notes will be payable (i) to Holders having an aggregate Principal
Amount of $1,000,000 or less of Notes, by check mailed to such Holders at the address set forth in
the Register and (ii) to Holders having an aggregate Principal Amount of more than $1,000,000 of
Notes, either by check mailed to such Holders or, upon application by a Holder to the Registrar not
later than the relevant Regular Record Date for such interest payment, by wire transfer in
immediately available funds to such Holder’s account within the United States, which application
shall remain in effect until the Holder notifies the Registrar to the contrary in writing. The
Company will pay principal of, and interest on, Global Notes in immediately available funds to The
Depository Trust Company or its nominee, as the case may be, as the registered holder of such
Global Note, on each Interest Payment Date, Fundamental Change Purchase Date or other payment date,
as the case may be.



     Any Notes repurchased by the Company will be cancelled and no longer outstanding hereunder.



     Section 3.02 Ranking. The Notes constitute a general unsecured and unsubordinated
obligation of the Company.



     Section 3.03 Denominations. The Notes shall be issuable only in registered form without
coupons and in minimum denominations of $1,000 and any integral multiple of $1,000 in excess
thereof.



     Section 3.04 Execution, Authentication, Delivery and Dating. The Notes shall be executed
on behalf of the Company by its Chief Executive Officer, its President, its Chief Financial Officer
or any of its Vice Presidents



     Notes bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.



26









 





     Subject to Section 3.01, at any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such Notes.
The Company Order shall specify the amount of Notes to be authenticated, and shall further specify
the amount of such Notes to be issued as Global Notes or as Physical Notes. The Trustee in
accordance with such Company Order shall authenticate and deliver such Notes as in this Indenture
provided and not otherwise.



     Each Note shall be dated the date of its authentication.



     No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Note a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.



     Section 3.05 Temporary Notes. Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes that
are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such Notes; provided, that
any such temporary Notes shall bear legends on the face of such Notes as set forth in Section 2.02.



     If temporary Notes are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at any office or agency of
the Company designated pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of Physical Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Physical Notes.



     Section 3.06 Registration; Registration of Transfer and Exchange.



     (a) The Company shall cause to be kept at the applicable Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or agency designated
pursuant to Section 4.02 being herein sometimes collectively referred to as the “Register”) in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Notes and of transfers of Notes. The Trustee is hereby appointed “Registrar”
(the “Registrar”) for the purpose of registering Notes and transfers of Notes as herein provided.



     Upon surrender for registration of transfer of any Note at an office or agency of the Company
designated pursuant to Section 4.02 for such purpose, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or transferees,



27









 




one or more new Notes of any authorized denominations and of a like aggregate Principal Amount
and tenor, each such Note bearing such restrictive legends as may be required by this Indenture
(including Sections 2.02, 3.07 and 3.11).




     At the option of the Holder and subject to the other provisions of Section 3.07 and to Section
3.11, Notes may be exchanged for other Notes of any authorized denominations and of a like
aggregate Principal Amount and tenor, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the exchange is entitled
to receive.



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



     Every Note presented or surrendered for registration of transfer or for exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing. As a condition to the registration of transfer
of any Restricted Notes, the Company or the Trustee may require evidence satisfactory to them as to
the compliance with the restrictions set forth in the legend on such Notes.



     No service charge shall be made for any registration of transfer or exchange of Notes, but the
Company and the Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange
of Notes, other than exchanges pursuant to Section 3.05 not involving any transfer.



     Neither the Company nor the Registrar shall be required to exchange or register a transfer of
any Note in the circumstances set forth in Section 3.11(a)(iv).



     (b) Neither any members of, or participants in, the Depositary (collectively, the “Agent
Members”) nor any other Persons on whose behalf any Agent Member may act shall have any rights
under this Indenture with respect to any Global Note registered in the name of the Depositary or
any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case
may be, may be treated by the Company, the Guarantors, the Trustee and any agent of the Company,
the Guarantors or the Trustee as the absolute owner and Holder of such Global Note for all purposes
whatsoever. The Trustee shall have no responsibility or obligation to any Agent Members or any
other Person on whose behalf Agent Members may act with respect to (i) any ownership interests in
the Global Note, (ii) the accuracy of the records of the Depositary or its nominee, (iii) any
notice required hereunder or (iv) any payments under or with respect to the Global Note.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Guarantors, the
Trustee or any agent of the Company, the Guarantors or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary or such nominee, as
the case may be, or impair, as between the Depositary, its Agent Members and any other Person on
whose behalf an Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a Holder of any Note. The registered Holder of a Global
Note may grant proxies and otherwise authorize any



28









 




Person, including Agent Members and Persons that may hold interests through Agent Members, to
take any action that a Holder is entitled to take under this Indenture or the Notes.



     Section 3.07 Transfer Restrictions.




     (a) Restricted Notes.




     (i) Every Note (and all securities issued in exchange therefor or substitution thereof,
except any shares of Common Stock issued upon conversion thereof) that bears, or that is
required under this Section 3.07 to bear, the Restricted Notes Legend will be deemed to be a
“Restricted Note.” Each Restricted Note will be subject to the restrictions on transfer set
forth in this Indenture (including in the Restricted Notes Legend) and will bear the
restricted CUSIP number for the Notes unless such restrictions on transfer are eliminated or
otherwise waived by written consent of the Company, and each Holder of a Restricted Note, by
such Holder’s acceptance of such Restricted Note, will be deemed to be bound by the
restrictions on transfer applicable to such Restricted Note.




     (ii) Until the Resale Restriction Termination Date, any Note (or any security issued in
exchange therefor or substitution thereof, except any shares of Common Stock issued upon the
conversion thereof) will bear the Restricted Notes Legend unless:




     (A) such Note, since last held by the Company or an affiliate of the Company
(within the meaning of Rule 144), if ever, was transferred (1) to a Person other
than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule
144) or a Person that was an affiliate of the Company within the three months
immediately preceding such transfer and (2) pursuant to a registration statement
that was effective under the Securities Act at the time of such transfer;




     (B) such Note was transferred (1) to a Person other than (x) the Company or (y)
an affiliate of the Company (within the meaning of Rule 144) or a Person that was an
affiliate of the Company within the three months immediately preceding such transfer
and (2) pursuant to the exemption from registration provided by Rule 144 or any
similar provision then in force under the Securities Act; or




     (C) the Company delivers written notice to the Trustee and the Registrar
stating that the Restricted Notes Legend may be removed from such Note.




     (iii) In addition, until the Resale Restriction Termination Date:




     (A) no transfer of any Note will be registered by the Registrar prior to the
Resale Restriction Termination Date unless the transferring Holder delivers the form
of assignment set forth on the Note, with the appropriate box checked, to the
Trustee; and



29









 






     (B) the Registrar will not register any transfer of any Note that is a
Restricted Note to a Person that is an affiliate of the Company or has been an
affiliate of the Company (within the meaning of Rule 144) within the three months
immediately preceding the date of such proposed transfer.




     (iv) On and after the Resale Restriction Termination Date, any Note (or any security
issued in exchange therefor or substitution thereof, except any shares of Common Stock
issued upon the conversion thereof) will bear the Restricted Notes Legend at any time the
Company reasonably determinates that, to comply with law, such Note (or such securities
issued in exchange for or substitution of a Note) must bear the Restricted Notes Legend.



     (b) Restricted Stock.




     (i) Every share of Common Stock that bears, or that is required under this Section 3.07
to bear, the Restricted Stock Legend will be deemed to be “Restricted Stock.” Each share of
Restricted Stock will be subject to the restrictions on transfer set forth in this Indenture
(including in the Restricted Stock Legend) and will bear a restricted CUSIP number unless
such restrictions on transfer are eliminated or otherwise waived by written consent of the
Company, and each Holder of Restricted Stock, by such Holder’s acceptance of Restricted
Stock, will be deemed to be bound by the restrictions on transfer applicable to such
Restricted Stock.




     (ii) Until the Resale Restriction Termination Date, any share of Common Stock issued
upon the conversion of a Note will be issued in definitive form and will bear the Restricted
Stock Legend unless:




     (A) such share of Common Stock was transferred (1) to a Person other than (x)
the Company or (y) an affiliate of the Company (within the meaning of Rule 144) or a
Person that was an affiliate of the Company within the three months immediately
preceding such transfer and (2) pursuant to a registration statement that was
effective under the Securities Act at the time of such conversion;




     (B) such share of Common Stock was transferred (1) to a Person other than (x)
the Company or (y) an affiliate of the Company (within the meaning of Rule 144) or a
Person that was an affiliate of the Company within the three months immediately
preceding such transfer and (2) pursuant to the exemption from registration provided
by Rule 144 or any similar provision then in force under the Securities Act;




     (C) such Note, regardless of whether bearing the Restricted Notes Legend, was
not, at the time of its conversion, required to bear the Restricted Notes Legend
pursuant to Section 3.07(a) and such Common Stock was issued to a Person other than
(1) the Company or (2) an affiliate of the Company; or



30









 






     (D) the Company delivers written notice to the Trustee, the Registrar and the
transfer agent for the Common Stock stating that such share of Common Stock need not
bear the Restricted Stock Legend.




     (iii) On and after the Resale Restriction Termination Date, any share of Common Stock
will be issued in definitive form and will bear the Restricted Stock Legend at any time the
Company reasonably determinates that, to comply with law, such share of Common Stock must
bear the Restricted Stock Legend.



     (c) As used in this Section 3.07, the term “transfer” means any sale, pledge, transfer, loan,
hypothecation or other disposition whatsoever of any Restricted Note, any interest therein or any
Restricted Stock.



     Section 3.08 Expiration of Restrictions. (a) Physical Notes. Any Physical Note
(or any security issued in exchange or substitution therefor) that does not constitute a Restricted
Note may be exchanged for a new Note or Notes of like tenor and aggregate Principal Amount that do
not bear the Restricted Notes Legend required by Section 3.07. To exercise such right of exchange,
the Holder of such Note must surrender such Note in accordance with the provisions of Section 3.11
and deliver any additional documentation reasonably required by the Company, the Trustee or the
Registrar in connection with such exchange.



     (b) Global Notes; Resale Restriction Termination Date.




     (i) If, on the Free Trade Date, or the next succeeding Business Day if the Free Trade
Date is not a Business Day, any Notes are represented by a Global Note that is a Restricted
Note (any such Global Note, a “Restricted Global Note”), as promptly as practicable, the
Company will automatically exchange every beneficial interest in each Restricted Global Note
for beneficial interests in Global Notes that are not subject to the restrictions set forth
in the Restricted Notes Legend and in Section 3.07 hereof.




     (ii) To effect such automatic exchange, the Company will (A) deliver to the Depositary
an instruction letter for the Depositary’s mandatory exchange process at least 15 days
immediately prior to the Free Trade Date and (B) deliver to each of the Trustee and the
Registrar a duly completed Free Transferability Certificate promptly after the Free Trade
Date, but not an Opinion of Counsel. The first date on which both the Trustee and the
Registrar have received the Free Transferability Certificate will be known as the “Resale
Restriction Termination Date.”




     (A) Immediately upon receipt of the Free Transferability Certificate by each of
the Trustee and the Registrar the Restricted Notes Legend will be deemed removed
from each of the Global Notes specified in such Free Transferability Certificate and
the restricted CUSIP number will be deemed removed from each of such Global Notes
and deemed replaced with an unrestricted CUSIP number.




     (B) Promptly after the Resale Restriction Termination Date, the Company (or the
Trustee upon instruction by the Company) will provide Bloomberg LLP with a copy of
the Free Transferability Certificate and will use reasonable efforts to cause
Bloomberg LLP to adjust its screen page for the Notes



31









 







to indicate that the Notes are no longer Restricted Notes and are now
identified by an unrestricted CUSIP number.




     (iii) Prior to the Company’s delivery of the Free Transferability Certificate and
afterwards, the Company and the Trustee will comply with the Applicable Procedures and
otherwise use reasonable efforts to cause each Global Note to be identified by an
unrestricted CUSIP number in the facilities of the Depositary by the date the Free
Transferability Certificate is delivered to the Trustee and the Registrar or as promptly as
possible thereafter.




     (iv) Notwithstanding anything to the contrary in Section 3.08(b)(i), (ii) or (iii), the
Company will not be required to deliver the Free Transferability Certificate if it
reasonably believes that removal of the Restricted Notes Legend or the changes to the CUSIP
numbers for the Notes could result in or facilitate transfers of the Notes in violation of
applicable law.



     Section 3.09 Mutilated, Destroyed, Lost and Stolen Notes. If any mutilated Note is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Note of like tenor and Principal Amount and bearing a number not
contemporaneously outstanding.



     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Note and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Note has been acquired by a protected
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Note, a new Note of like tenor and Principal Amount and bearing a
number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Note has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.



     Upon the issuance of any new Note under this Section 3.09, the Company may require payment by
the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Note issued pursuant to this Section 3.09 in lieu of any destroyed, lost or stolen
Note shall constitute an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.



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



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     Section 3.10 Persons Deemed Owners. Prior to due presentment of a Note for registration of
transfer, the Company, the Guarantors, the Trustee, the Registrar and any agent of the Company, the
Guarantors, the Trustee or the Registrar may treat the Person in whose name such Note is registered
as the owner of such Note for the purpose of receiving payment of the principal of such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company,
the Guarantors, the Trustee, the Registrar nor any agent of the Company, the Guarantors, the
Trustee or the Registrar shall be affected by notice to the contrary.



     Section 3.11 Transfer and Exchange.



     (a) Provisions Applicable to All Transfers and Exchanges.




     (i) Subject to the restrictions set forth in this Section 3.11, Physical Notes and
beneficial interests in Global Notes may be transferred or exchanged from time to time as
desired, and each such transfer or exchange will be noted by the Registrar in the Register.




     (ii) All Notes issued upon any registration of transfer or exchange in accordance with
this Indenture will be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Notes surrendered upon such
registration of transfer or exchange.




     (iii) No service charge will be imposed on any Holder of a Physical Note or any owner
of a beneficial interest in a Global Note for any exchange or registration of transfer, but
each of the Company, the Trustee or the Registrar may require such Holder or owner of a
beneficial interest to pay a sum sufficient to cover any transfer tax, assessment or other
governmental charge imposed in connection with such registration of transfer or exchange.




     (iv) Unless the Company specifies otherwise, none of the Company, the Trustee, the
Registrar or any co-Registrar will be required to exchange or register a transfer of any
Note (i) that has been surrendered for conversion or (ii) as to which a Fundamental Change
Purchase Notice has been delivered and not withdrawn, in each case, except to the extent any
portion of such Note is not subject to the foregoing.




     (v) The Trustee will have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note (including any
transfers between or among Depositary participants or beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.



     (b) In General; Transfer and Exchange of Beneficial Interests in Global Notes. So
long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise
required by law, except to the extent required by Section 3.11(c):



33









 






     (i) all Notes will be represented by one or more Global Notes;




     (ii) every transfer and exchange of a beneficial interest in a Global Note will be
effected through the Depositary in accordance with the Applicable Procedures and the
provisions of this Indenture (including the restrictions on transfer set forth in Section
3.07); and




     (iii) each Global Note may be transferred only as a whole and only (A) by the
Depositary to a nominee of the Depositary, (B) by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or (C) by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.



     (c) Transfer and Exchange of Global Notes.




     (i) Notwithstanding any other provision of this Indenture, each Global Note will be
exchanged for Physical Notes if the Depositary delivers notice to the Company that:




     (A) the Depositary is unwilling or unable to continue to act as Depositary; or




     (B) the Depositary is no longer registered as a clearing agency under the
Exchange Act;




and, in each case, the Company promptly delivers a copy of such notice to the Trustee and
the Company fails to appoint a successor Depositary within 90 days after receiving notice
from the Depositary.



     In each such case, each Global Note will be deemed surrendered to the Trustee for
cancellation, and the Trustee will cause each Global Note to be cancelled in accordance with the
Applicable Procedures, and the Company, in accordance with Section 3.04, will promptly execute,
and, upon receipt of a Company Order, the Trustee will, in accordance with Section 3.04, will
promptly authenticate and deliver, for each beneficial interest in each Global Note so exchanged,
an aggregate Principal Amount of Physical Notes equal to the aggregate Principal Amount of such
beneficial interest, registered in such names and in such authorized denominations as the
Depositary specifies, and bearing any legends that such Physical Notes are required to bear under
Section 3.07.




     (ii) In addition, if (x) the Company, in its discretion, subject to the Depositary’s
rules, determines that any Global Note will be exchangeable for Physical Notes or (y) an
Event of Default has occurred and is continuing, in each case, any owner of a beneficial
interest in a Global Note may exchange such beneficial interest for Physical Notes by
delivering a written request to the Registrar.


In such case, (A) the Registrar will deliver notice of such request to the Company and the
Trustee, which notice will identify the owner of the beneficial interest to be exchanged, the
aggregate principal amount of such beneficial interest and the CUSIP of the relevant Global Note;
(B) the Company will, in accordance with Section 3.04, promptly execute, and, upon






34









 







receipt of a Company Order, the Trustee, in accordance with Section 3.04, will promptly
authenticate and deliver, to such owner, for the beneficial interest so exchanged by such owner,
Physical Notes registered in such owner’s name having an aggregate Principal Amount equal to the
aggregate Principal Amount of such beneficial interest and bearing any legends that such Physical
Notes are required to bear under Section 3.07, and (C) the Registrar, in accordance with the
Applicable Procedures, will cause the Principal Amount of such Global Note to be decreased by the
aggregate Principal Amount of the beneficial interest so exchanged. If all of the beneficial
interests in a Global Note are so exchanged, such Global Note will be deemed surrendered to the
Trustee for cancellation, and the Trustee will cause such Global Note to be cancelled in accordance
with the Applicable Procedures.




     (d) Transfer and Exchange of Physical Notes.




     (i) If Physical Notes are issued, a Holder may transfer a Physical Note by: (A)
surrendering such Physical Note for registration of transfer to the Registrar, together with
any endorsements or instruments of transfer required by any of the Company, the Trustee or
the Registrar; (B) if such Physical Note is a Restricted Note, delivering any documentation
that the Company, the Trustee or the Registrar reasonably requires to ensure that such
transfer complies with Section 3.07 and any applicable securities laws; and (C) satisfying
all other requirements for such transfer set forth in this Section 3.11 and Section 3.07.
Upon the satisfaction of conditions (A), (B) and (C), the Company, in accordance with
Section 3.04, will promptly execute and deliver to the Trustee, and the Trustee, upon
receipt of a Company Order, will, in accordance with Section 3.04, promptly authenticate and
deliver, in the name of the designated transferee or transferees, one or more new Physical
Notes, of any authorized denominations, having like aggregate Principal Amount and bearing
any restrictive legends required by Section 3.07.




     (ii) If Physical Notes are issued, a Holder may exchange a Physical Note for other
Physical Notes of any authorized denominations and aggregate Principal Amount equal to the
aggregate Principal Amount of the Notes to be exchanged by surrendering such Notes, together
with any endorsements or instruments of transfer required by any of the Company, the Trustee
or the Registrar, at any office or agency maintained by the Company for such purposes
pursuant to Section 4.02. Whenever a Holder surrenders Notes for exchange, the Company, in
accordance with Section 3.04, will promptly execute and deliver to the Trustee, and the
Trustee, upon receipt of a Company Order, will, in accordance with Section 3.04, promptly
authenticate and deliver the Notes that such Holder is entitled to receive, bearing
registration numbers not contemporaneously outstanding and any restrictive legends that such
Physical Notes are to bear under Section 3.07.



     If Physical Notes are issued, a Holder may transfer or exchange a Physical Note for a
beneficial interest in a Global Note by (A) surrendering such Physical Note for registration of
transfer or exchange, together with any endorsements or instruments of transfer required by any of
the Company, the Trustee or the Registrar, at any office or agency maintained by the Company for
such purposes pursuant to Section 4.02; (B) if such Physical Note is a Restricted Note, delivering
any documentation the Company, the Trustee or the Registrar reasonably require to ensure that such
transfer complies with Section 3.07 and any applicable securities



35









 




laws; (C) satisfying all other requirements for such transfer set forth in this Section 3.11
and Section 3.07; and (D) providing written instructions to the Trustee to make, or to direct the
Registrar to make, an adjustment in its books and records with respect to the applicable Global
Note to reflect an increase in the aggregate Principal Amount of the Notes represented by such
Global Note, which instructions will contain information regarding the Depositary account to be
credited with such increase. Upon the satisfaction of conditions (A), (B), (C) and (D), the
Trustee will cancel such Physical Note and cause, or direct the Registrar to cause, in accordance
with the Applicable Procedures, the aggregate Principal Amount of Notes represented by such Global
Note to be increased by the aggregate Principal Amount of such Physical Note, and will credit or
cause to be credited the account of the Person specified in the instructions provided by the
exchanging Holder in an amount equal to the aggregate Principal Amount of such Physical Note. If
no Global Notes are then outstanding, the Company, in accordance with Section 3.04, will promptly
execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in
accordance with Section 3.04, authenticate, a new Global Note in the appropriate aggregate
Principal Amount.




     The Registrar shall retain, in accordance with its customary procedures, copies of all
letters, notices and other written communications received pursuant to this Section 3.11. 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.



     Section 3.12 Cancellation. The Company at any time may deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Notes
previously authenticated hereunder which the Company has not issued and sold. The Trustee shall
cancel all Notes surrendered for registration of transfer, exchange, payment, purchase, repurchase,
conversion (pursuant to Article 7 hereof) or cancellation in accordance with its customary
practices. If the Company shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes unless and until the same
are delivered to the Trustee for cancellation. The Notes so acquired, while held by or on behalf
of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the
Notes. The Company may not issue new Notes to replace Notes it has paid in full or delivered to
the Trustee for cancellation.



     Section 3.13 CUSIP Numbers. In issuing the Notes, the Company may use “CUSIP” numbers (if
then generally in use). The Company will promptly notify the Trustee of any change in the “CUSIP”
numbers.



ARTICLE 4

COVENANTS




     Section 4.01 Payment of Principal and Interest. The Company covenants and agrees that it
shall duly and punctually pay or cause to be paid the principal of and interest on each of the
Notes at the places, at the respective times and in the manner provided herein and in the Notes.
If any Interest Payment Date, the Maturity Date or any Fundamental Change Purchase



36









 




Date is not a Business Day, payment will be made on the next succeeding Business Day, and no
additional interest will accrue thereon in respect of such delay.




     Section 4.02 Maintenance of Office or Agency. The Company shall maintain an office or
agency in the United States where the Notes may be surrendered for registration of transfer or
exchange or for presentation for conversion and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall maintain an office or
agency in the City and State of New York where the Notes may be surrendered or presented for
payment. The Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency not designated or appointed by the Trustee. If at
any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.



     The Company may also from time to time designate co-Registrars and one or more offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations, provided that the Company shall at all times maintain an
office or agency in the City and State of New York where the Notes may be surrendered or presented
for payment.



     The Company will give prompt written notice of any such designation or rescission and of any
change in the location of any such other office or agency.



     The Company hereby initially designates the Trustee as Paying Agent at its corporate trust
office in the City and State of New York, which, on the date of this Indenture, is located at 45
Broadway, 14th Floor, New York, New York 10006. The Company hereby initially designates the Trustee
as Registrar and Conversion Agent at its Corporate Trust Office.



     So long as the Trustee is the Registrar, the Trustee agrees to mail, or cause to be mailed,
the notices set forth in Section 11.11(a) and the third paragraph of Section 11.12. If
co-Registrars have been appointed in accordance with this Section, the Trustee shall mail such
notices only to the Company and the Holders of Notes it can identify from its records.



     Section 4.03 Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 11.11, a Trustee, so that there shall at all times be a Trustee hereunder.



     Section 4.04 Provisions as to Paying Agent.



     (a) The Company may designate additional Paying Agents, rescind the designation of any Paying
Agent, or approve a change in the office through which any Paying Agent acts, provided that there
shall be a Paying Agent in the City and State of New York at all times. If the Company shall
appoint a Paying Agent other than the Trustee, or if the Trustee shall appoint such a Paying Agent,
the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:



37









 






     (i) that it will hold all sums held by it as such agent for the payment of the
principal of or interest on the Notes (whether such sums have been paid to it by the
Company or by any other obligor on the Notes) in trust for the benefit of the Holders of the
Notes;




     (ii) that it will give the Trustee notice of any failure by the Company (or by any
other obligor on the Notes) to make any payment of the principal of or interest on the
Notes when the same shall be due and payable; and




     (iii) that at any time during the continuance of an Event of Default, upon request of
the Trustee, it will forthwith pay to the Trustee all sums so held in trust.



     The Company shall, on or before each due date of the principal of or interest on the Notes,
deposit with the Paying Agent a sum (in funds which are immediately available on the due date for
such payment) sufficient to pay such principal or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of any failure to take such action; provided,
however, that if such deposit is made on the due date, such deposit shall be received by the Paying
Agent by 10:00 a.m. New York City time, on such date.



     (b) If the Company shall act as its own Paying Agent, it will, by 10:00 a.m. New York City
time on each due date of the principal of or interest on the Notes, set aside, segregate and hold
in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal or
interest so becoming due and will promptly notify the Trustee of any failure to take such action
and of any failure by the Company (or any other obligor under the Notes) to make any payment of the
principal of or interest on the Notes when the same shall become due and payable.



     (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any Paying
Agent hereunder as required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent to the Trustee,
the Company or such Paying Agent shall be released from all further liability with respect to such
sums.



     (d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to Sections 13.03 and 13.04.



     The Trustee shall not be responsible for the actions of any other Paying Agents (including the
Company if acting as its own Paying Agent) and shall have no control of any funds held by such
other Paying Agents.



     Section 4.05 Existence. Subject to Article 10, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and rights (charter
and statutory); provided, however, that the Company shall not be required to preserve any such
right if the Company shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.



38









 





     Section 4.06 [Reserved]



     Section 4.07 [Reserved]



     Section 4.08 Rule 144A Information Requirement. The Company covenants and agrees that it
shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act,
so long as any of the Notes or shares of Common Stock delivered upon conversion of the Notes will,
at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the
Securities Act, promptly provide to the Trustee and will, upon written request, provide to any
Holder or beneficial owner of such Notes or such shares of Common Stock and any prospective
purchaser of such Notes or such shares of Common Stock, the information required pursuant to Rule
144A(d)(4) under the Securities Act to facilitate the resale of such Notes or such shares of Common
Stock pursuant to Rule 144A under the Securities Act, and it will take such further action as any
Holder or beneficial owner of such Notes or such shares of Common Stock may reasonably request from
time to time to enable such Holder or beneficial owner to sell such Notes or such shares of Common
Stock in accordance with Rule 144A, as such rule may be amended from time to time.



     Section 4.09 Resale of Certain Notes. The Company shall not, and shall not permit any of
its Subsidiaries to, resell any Notes that have been reacquired by the Company or any such
Subsidiary. The Trustee shall have no responsibility in respect of the Company’s performance of
its agreement in the preceding sentence.



     Section 4.10 Commission Filings and Reports. The Company covenants that any documents or
reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act shall be filed within the time periods specified in the rules and regulations of
the Commission (including any grace period provided by Rule 12b-25 under the Exchange Act), and
must be filed by the Company with the Trustee within 15 days after the same are filed with the
Commission; provided that in each case the delivery of materials to the Trustee by electronic means
or filing of documents pursuant to the Commission’s “EDGAR” system (or any successor electronic
filing system) shall be deemed to constitute “filing” with the Trustee for purposes of this Section
4.10. Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates). The Company shall at all times comply with Trust
Indenture Act § 314(a).



     Section 4.11 Book-Entry System. If the Notes cease to trade in the Depositary’s book-entry
settlement system, the Company covenants and agrees that it shall use reasonable efforts to make
such other book entry arrangements that it determines are reasonable for the Notes.



     Section 4.12 Additional Interest. If at any time Additional Interest becomes payable by
the Company pursuant to Section 9.03, the Company shall promptly deliver to the Trustee a
certificate to that effect and stating (i) the amount of such Additional Interest that is payable
and (ii) the date on which such Additional Interest is payable. Unless and until a Trust Officer
of the Trustee receives such a certificate, the Trustee may assume without inquiry that no
Additional



39









 




Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled
to such Additional Interest, the Company shall deliver to the Trustee a certificate setting forth
the particulars of such payment.




     Section 4.13 [RESERVED].



     Section 4.14 Stay; Extension and Usury Laws. Each of the Company and the Guarantors
covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law or other law which would prohibit or forgive the Company or the Guarantors from paying
all or any portion of the principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and each of the Company and the Guarantors (to the extent 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 had been enacted.



     Section 4.15 Compliance Certificate. The Company shall deliver to the Trustee, within one
hundred twenty (120) days after the end of each fiscal year of the Company (commencing with the
fiscal year ending December 31, 2011), an Officers’ Certificate, stating whether or not to the
knowledge of the signer thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and the status thereof of which the signer may have knowledge.



     The Company shall deliver to the Trustee, within 30 days after the Company becomes aware of
the occurrence of any Event of Default or Default, a written notice setting forth the details of
such Event of Default or Default, its status and the action which the Company proposes to take with
respect thereto.



     Any notice required to be given under this Section 4.15 shall be delivered to a Trust Officer
of the Trustee at its Corporate Trust Office.



     Section 4.16 Additional Subsidiary Guarantees. If, after the date of this Indenture, any
Material Domestic Subsidiary of the Company that is not already a Guarantor guarantees any other
Indebtedness of the Company or any Guarantor in excess of the De Minimis Guaranteed Amount, then
that Subsidiary shall become a Guarantor by executing a supplemental indenture substantially in the
form of Annex A hereto and delivering it to the Trustee within 30 days of the date on which
it guaranteed such Indebtedness, together with an Officers’ Certificate and Opinion of Counsel as
required by Sections 1.02 and 14.03.



     Each Subsidiary Guarantee shall also be released in accordance with Article 15.



40









 





ARTICLE 5

[RESERVED]




ARTICLE 6

[RESERVED]



ARTICLE 7

CONVERSION



     Section 7.01 Right to Convert.



     (a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall
have the right, at such Holder’s option, at any time prior to the Close of Business on the Business
Day immediately preceding the Maturity Date, to convert the Principal Amount of any such Notes, or
any portion of such Principal Amount, into shares of Common Stock, provided that any portion of
such Principal Amount that a Holder elects to convert is equal to $1,000 or an integral multiple of
$1,000 in excess thereof.



     (b) Notwithstanding the foregoing, if a Holder has already delivered a Fundamental Change
Purchase Notice with respect to a Note under Section 8.01, such Holder may convert such Note only
if such Holder first withdraws the related Fundamental Change Purchase Notice pursuant to Section
8.03. If a Holder has surrendered such Holder’s Note for required purchase in connection with a
Fundamental Change, such Holder’s right to withdraw the related Fundamental Change Purchase Note
and convert each Note that is subject thereto will terminate at the Close of Business on (i) the
Business Day immediately preceding the relevant Fundamental Change Purchase Date or (ii) in the
case of a Default by the Company in the payment of the Fundamental Change Purchase Price with
respect to such Note, the Business Day immediately preceding the day on which such Default is no
longer continuing.



     (c) Provisions of this Indenture that apply to conversion of all of a Note also apply to
conversion of a portion of a Note.



     (d) A Holder of Notes is not entitled to any rights of a holder of shares of Common Stock
until such Holder has converted its Notes, and only to extent such Notes are deemed to have been
converted into shares of Common Stock pursuant to this Article 7.



     Section 7.02 Conversion Procedure.



     (a) Each Note shall be convertible at the office of the Conversion Agent.



     (b) In order to exercise the conversion right with respect to any interest in Global Notes,
the Holder must complete the appropriate instruction form for conversion pursuant to the
Depositary’s book-entry conversion program, furnish appropriate endorsements and transfer documents
if required by the Company or the Trustee or Conversion Agent, and pay the funds, if any, required
by Section 7.03(c) and any transfer taxes or duties if required pursuant to Section 7.08. However,
no service charge will be imposed by the Company, the Trustee or the Registrar for any registration
of transfer or exchange of Notes except in compliance with the below provisions governing exercise
of conversion rights. In order to exercise the conversion



41









 




right with respect to any Physical Notes, the Holder of any such Notes to be converted, in whole or in
part, shall:





     (i) complete and manually sign the conversion notice provided on the back of the Note
(the “Conversion Notice”) or facsimile of the Conversion Notice and deliver such notice to a
Conversion Agent, which action shall be irrevocable;




     (ii) surrender the Note to a Conversion Agent;




     (iii) if required, furnish appropriate endorsements and transfer documents,




     (iv) if required pursuant to Section 7.08, pay any transfer taxes or duties; and




     (v) if required, pay funds equal to interest (including Additional Interest, if any)
payable on the next Interest Payment Date to which the Holder is not entitled as required by
Section 7.03(c).



     The date on which the Holder satisfies all of the applicable requirements set forth above is
the “Conversion Date.”



     (c) On the third Business Day immediately following the Conversion Date, the Company shall
issue and shall deliver to the converting Holder at the office of the Conversion Agent, a
certificate or certificates for the number of full shares of Common Stock issuable in respect of
such conversion in accordance with the provisions of this Article 7. In case any Notes of a
denomination greater than $1,000 shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of the Notes so surrendered,
without charge to such Holder, new Notes in authorized denominations in an aggregate Principal
Amount equal to the unconverted portion of the surrendered Notes.



     Each conversion shall be deemed to have been effected as to any such Notes (or portion
thereof) on the date on which the requirements set forth above in Section 7.01(b) have been
satisfied as to such Notes (or portion thereof) and the Person in whose name any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become, as of the Close of Business on the relevant Conversion Date that such Holder converted
the Notes, the holder of record of the shares of Common Stock represented thereby.



     (d) Upon the conversion of an interest in a Global Note, the Trustee (or other Conversion
Agent appointed by the Company) shall make a notation on such Global Note as to the reduction in
the Principal Amount represented thereby. The Company shall notify the Trustee in writing of any
conversions of Notes effected through any Conversion Agent other than the Trustee.



     (e) Each share certificate representing Common Stock issued upon conversion of the Notes that
are Restricted Notes shall bear the Restricted Stock Legend as set forth in Section 3.07 and
Exhibit A.



     Section 7.03 Settlement upon Conversion.



42









 





     (a) With respect to any conversion of Notes, if any, the Company shall, subject to the
provisions of this Article 7, deliver to converting Holders, in respect of each $1,000 Principal
Amount of Notes being converted, a number of shares of Common Stock equal to the Applicable
Conversion Rate, on the third Business Day immediately following the relevant Conversion Date,
together with cash in lieu of any fractional shares of Common Stock pursuant to Section 7.03(d).



     (b) Upon conversion, Holders shall not receive any separate cash payment for accrued and
unpaid interest unless such conversion occurs between a Regular Record Date and the Interest
Payment Date to which it relates and the converting Holder was the Holder on the relevant Regular
Record Date.



     (c) If Notes are converted after the Close of Business on a Regular Record Date for the
payment of interest, Holders of such Notes at the Close of Business on such Regular Record Date
will receive the interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Notes surrendered for conversion during the period from the Close
of Business on any Regular Record Date to the Open of Business on the immediately following
Interest Payment Date, must be accompanied by funds equal to the amount of interest payable on the
Notes so converted; provided that no such payment need be made (i) for conversions following the
Regular Record Date immediately preceding the Maturity Date; (ii) if the Company has specified a
Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the first
Business Day immediately following the corresponding Interest Payment Date; or (iii) to the extent
of any overdue interest, if any overdue interest exists at the time of conversion with respect to
such Note.



     (d) The Company shall not issue fractional shares upon conversion of Notes. If multiple Notes
shall be surrendered for conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion (and the number of fractional shares, if any, for which cash
shall be delivered) shall be computed on the basis of the aggregate Principal Amount of the Notes
(or specified portions thereof to the extent permitted hereby) so surrendered. If any fractional
share would be issuable upon the conversion of any Notes, the Company shall make payment an amount
in cash for the current market value of the fractional shares. The current market value of a
fractional share shall be determined (calculated to the nearest 1/1000th of a share) by multiplying
the Last Reported Sale Price of the Common Stock on the relevant Conversion Date by such fractional
share and rounding the product to the nearest whole cent.



     (e) By delivery to the Holder of the full number of shares of Common Stock, together with any
cash payment for fractional shares, issuable upon conversion, the Company will be deemed to satisfy
in full its obligation to pay the Principal Amount of the Notes and all accrued and unpaid interest
to, but excluding, the Conversion Date. Upon conversion of the Notes, all accrued and unpaid
interest to, but excluding, the Conversion Date will be deemed to be paid in full rather than
canceled, extinguished or forfeited, subject to Section 7.03(c) above.



     Section 7.04 Adjustment of Conversion Rate. The Applicable Conversion Rate shall be
adjusted from time to time by the Company if any of the following events occurs as described below,
except that the Company will not make any adjustment to the Conversion Rate if Holders



43









 




of Notes participate (other than in the case of a share split or share combination), at the same
time and on the same terms as holders of shares of Common Stock, solely as a result of holding the
Notes, in any of the transactions described in this Section 7.04, without having to convert their
Notes, as if such Holders held a number of shares of Common Stock equal to the Applicable
Conversion Rate in effect immediately prior to the adjustment thereof in respect of such
transaction, multiplied by the Principal Amount of Notes held by such Holders, divided by $1,000.




     (a) If the Company issues shares of Common Stock as a dividend or distribution on the Common
Stock, or if the Company effects a share split or share combination of its Common Stock, the
Applicable Conversion Rate will be adjusted based on the following formula:







where,




	 	 	 

	     CR0 =

	 	the Applicable Conversion Rate in effect immediately prior to the Close of
Business on the Record Date for such dividend or distribution, or immediately prior to
the Open of Business on the effective date of such share split or share combination, as
applicable;
	 
	 	 
	     CR1 =

	 	the Applicable Conversion Rate in effect immediately after the Close of
Business on such Record Date or immediately after the Open of Business on such
effective date, as applicable;
	 
	 	 
	     OS0 =

	 	the number of shares of Common Stock outstanding immediately prior to the
Close of Business on such Record Date or immediately prior to the Open of Business on
such effective date, as applicable; and
	 
	 	 
	     OS1 =

	 	the number of shares of Common Stock outstanding immediately after giving
effect to such dividend, distribution, share split or share combination.






     Any adjustment made pursuant to this Section 7.04(a) shall become effective immediately after
the Close of Business on the Record Date for such dividend or distribution, or immediately after
the Open of Business on the effective date for such share split or share combination, as
applicable. If any dividend or distribution of the type described in this Section 7.04(a) is
declared but not so paid or made, or any such share split or combination is announced but the
outstanding shares of Common Stock are not split or combined, as the case may be, the Applicable
Conversion Rate shall be immediately readjusted, effective as of the date the Company’s Board of
Directors determines not to pay such dividend or distribution, or not to split or combine the
outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be
in effect if such dividend, distribution, share split or share combination had



44









 




not been declared or announced. For the avoidance of doubt, if the application of the
foregoing formula would result in a decrease in the Applicable Conversion Rate, no adjustment to
the Applicable Conversion Rate will be made (other than (i) as a result of a reverse share split or
share combination or (ii) with respect to the Company’s right to readjust the Applicable Conversion
Rate as described in the immediately preceding sentence).




     (b) If the Company distributes to all or substantially all holders of shares of Common Stock
any rights, options or warrants entitling them for a period of not more than 60 calendar days after
the date of such distribution to subscribe for or purchase shares of Common Stock, at a price per
share less than the average of the Last Reported Sale Prices of the Common Stock over the 10
consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the
date of such distribution, the Applicable Conversion Rate will be increased based on the following
formula:







where,




	 	 	 

	     CR0 =

	 	the Applicable Conversion Rate in effect immediately prior to the Close of
Business on the Record Date for such distribution;
	 
	 	 
	     CR1 =

	 	the Applicable Conversion Rate in effect immediately after the Close of
Business on such Record Date;
	 
	 	 
	     OS0 =

	 	the number of shares of Common Stock outstanding immediately prior to the
Close of Business on such Record Date;
	 
	 	 
	     X =

	 	the total number of shares of Common Stock issuable pursuant to such rights,
options or warrants; and
	 
	 	 
	     Y =

	 	the number of shares of Common Stock equal to the aggregate price payable to
exercise such rights, options or warrants divided by the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the date of announcement of the
distribution of such rights, options or warrants.






     The foregoing increase in the Applicable Conversion Rate shall be successively made whenever
any such rights, options or warrants are distributed and shall become effective immediately after
the Close of Business on the Record Date for such distribution. If such rights, options or
warrants are not so distributed, the Applicable Conversion Rate will be immediately decreased to
the Conversion Rate that would then be in effect if such Record Date for such



45









 




distribution had not been fixed. In addition, to the extent that shares of Common Stock are
not delivered after the expiration of such rights, options or warrants, the Applicable Conversion
Rate shall be immediately decreased to the Conversion Rate that would then be in effect had the
increase made for the distribution of such rights, options or warrants been made on the basis of
delivery of only the number of shares of Common Stock actually delivered. For the avoidance of
doubt, if the application of the foregoing formula would result in a decrease in the Applicable
Conversion Rate, no adjustment to the Conversion Rate will be made (other than with respect to the
Company’s right to readjust the Applicable Conversion Rate as described in the two immediately
preceding sentences).




     In determining whether any rights, options or warrants entitle the holders of shares of Common
Stock to subscribe for or purchase or exercise conversion rights for, shares of Common Stock at a
purchase price less than such average of the Last Reported Sale Prices of Common Stock over the 10
consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the
date of announcement of such distribution, and in determining the aggregate exercise or purchase
price payable for such shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights, options or warrants and any amount payable upon exercise
or conversion thereof, the value of such consideration, if other than cash, to be determined by the
Company’s Board of Directors.



     (c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness,
other assets or property of the Company or rights, options or warrants to acquire the Company’s
Capital Stock or other securities (the “Distributed Property”), to all or substantially all holders
of shares of Common Stock, excluding:




     (i) dividends or distributions of Common Stock or rights, options or warrants as to
which an adjustment was effected pursuant to Section 7.04(a) or Section 7.04(b), as the case
may be;




     (ii) dividends or distributions paid exclusively in cash as to which an adjustment was
effected pursuant to Section 7.04(d); and




     (iii) Spin-Offs to which the provisions set forth below in this Section 7.04(c) apply;


then the Applicable Conversion Rate will be increased based on the following formula:








where,







46









 








	 	 	 

	     CR0 =

	 	the Applicable Conversion Rate in effect immediately prior to the Close of
Business on the Record Date for such distribution;
	 
	 	 
	     CR1 =

	 	the Applicable Conversion Rate in effect immediately after the Close of
Business on such Record Date;
	 
	 	 
	     SP0 =

	 	the average of the Last Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such distribution; and
	 
	 	 
	     FMV =

	 	the fair market value (as determined by the Company’s Board of Directors) of
the Distributed Property distributed with respect to each outstanding share of Common
Stock on the Ex-Dividend Date for such distribution;





provided that if “FMV” as set forth above is equal to or greater than “SP0” as set forth
above, in lieu of the foregoing increase, adequate provision will be made so that each Holder of a
Note shall receive on the date on which the Distributed Property is distributed to holders of the
Common Stock, for each $1,000 Principal Amount of the Notes, the amount and kind of Distributed
Property that such Holder would have received had such Holder owned a number of shares of Common
Stock equal to the Applicable Conversion Rate on the Record Date for such distribution; provided
further that if the Company’s Board of Directors determines “FMV” for purposes of the foregoing
increase by reference to the actual or when-issued trading market for any securities, it must in
doing so consider the prices in such market over the same period used in computing the average of
the Last Reported Sale Prices of the Common Stock for purposes of determining “SP0” as
set forth above.




     An increase in the Applicable Conversion Rate made pursuant to the immediately preceding
paragraph shall become effective immediately after the Close of Business on the Record Date for
such distribution. If such distribution is declared but not so paid or made, the Applicable
Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such
distribution had not been declared. For the avoidance of doubt, if the application of the foregoing
formula would result in a decrease in the Applicable Conversion Rate, no adjustment to the
Conversion Rate will be made (other than with respect to the Company’s right to readjust the
Applicable Conversion Rate as described in the immediately preceding sentence).



     With respect to an adjustment pursuant to this Section 7.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary, or other business unit or
affiliate, of the Company, where such Capital Stock or similar equity interest is listed or quoted
(or will be listed or quoted upon consummation of the Spin-Off) on The New York Stock Exchange, The
NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors) (a
“Spin-Off”), the Applicable Conversion Rate will be increased based on the following formula:








47









 




where,




	 	 	 

	     CR0 =

	 	the Applicable Conversion Rate in effect immediately prior to the end of
the Valuation Period;
	 
	 	 
	     CR1 =

	 	the Applicable Conversion Rate in effect immediately after the end of the
Valuation Period;
	 
	 	 
	     FMV0 =

	 	the average of the Last Reported Sale Prices of the Capital Stock or
similar equity interest distributed to holders of shares of Common Stock applicable to
one share of Common Stock (determined for purposes of the definition of “Last Reported
Sale Price” as if such Capital Stock or similar equity interest were Common Stock) over
the first ten consecutive Trading Day period after, and including, the effective date
of the Spin-Off (the “Valuation Period”); and
	 
	 	 
	     MP0 =

	 	the average of the Last Reported Sale Prices of the Common Stock over the
Valuation Period.






     The increase in the Applicable Conversion Rate under the immediately preceding paragraph will
be determined as of the Close of Business on the last Trading Day of the Valuation Period but will
be given effect immediately after the Close of Business on the Record Date of the Spin-Off;
provided that in respect of any conversion during the Valuation Period, references with respect to
10 consecutive Trading Days shall be deemed replaced with such lesser number of Trading Days as
have elapsed from, and including, the effective date of such Spin-Off to, and including, the
Conversion Date in determining the Applicable Conversion Rate. If any dividend or distribution
that constitutes a Spin-Off is declared but not so paid or made, the Applicable Conversion Rate
shall be immediately decreased, effective as of the date the Company’s Board of Directors
determines not to pay such dividend or distribution, to the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared. For the avoidance of doubt, if the
application of the foregoing formula would result in a decrease in the Applicable Conversion Rate,
no adjustment to the Conversion Rate will be made (other than with respect to the Company’s right
to readjust the Applicable Conversion Rate as described in the immediately preceding sentence).



     For purposes of this Section 7.04(c) (and subject in all respect to Section 7.12), rights,
options or warrants distributed by the Company to all holders of the Common Stock entitling them to
subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section 7.04(c) (and no
adjustment to the Applicable Conversion Rate under this Section 7.04(c) will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is required) to the
Applicable Conversion Rate shall be made under this Section 7.04. If any such right, option or
warrant, including any such existing rights, options or warrants distributed



48









 




prior to the date of this Indenture, is subject to events, upon the occurrence of which such
rights, options or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets or property, then the date of the occurrence of any and each such
event shall be deemed to be the date of distribution and Record Date with respect to new rights,
options or warrants with such rights (in which case the existing rights, options or warrants shall
be deemed to terminate and expire on such date without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights, options or warrants,
or any Trigger Event or other event (of the type described in the immediately preceding sentence)
with respect thereto that was counted for purposes of calculating a distribution amount for which
an adjustment to the Applicable Conversion Rate under this Section 7.04(c) was made, (1) in the
case of any such rights, options or warrants that shall all have been redeemed or purchased without
exercise by any holders thereof, upon such final redemption or purchase (x) the Applicable
Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and
(y) the Applicable Conversion Rate shall then again be readjusted to give effect to such
distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share of Common Stock redemption or purchase price received by a
holder or holders of shares of Common Stock with respect to such rights, options or warrants
(assuming such holder had retained such rights, options or warrants), made to all holders of shares
of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights,
options or warrants that shall have expired or been terminated without exercise by any holders
thereof, the Applicable Conversion Rate shall be readjusted as if such rights, options and warrants
had not been issued.




     For purposes of Section 7.04(a), Section 7.04(b) and this Section 7.04(c), any dividend or
distribution to which this Section 7.04(c) is applicable that also includes one or both of:




     (A) a dividend or distribution of shares of Common Stock to which Section
7.04(a) is applicable (the “Clause A Distribution”); or




     (B) a dividend or distribution of rights, options or warrants to which Section
7.04(b) is applicable (the “Clause B Distribution”),


then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 7.04(c) is
applicable (the “Clause C Distribution”) and any adjustment to the Applicable Conversion Rate
required by this Section 7.04(c) with respect to such Clause C Distribution shall then be made, and
(2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the
Clause C Distribution and any adjustment to the Applicable Conversion Rate required by Section
7.04(a) and Section 7.04(b) with respect thereto shall then be made, except that, if determined by
the Company (I) the “Record Date” for the Clause A Distribution and the Clause B Distribution shall
be deemed to be the Record Date for the Clause C Distribution and (II) any shares of Common Stock
included in the Clause A Distribution or Clause B Distribution shall be deemed not to be
“outstanding immediately prior to the Close of Business on such Record Date or immediately prior to
the Open of Business on such effective date, as applicable” within the meaning of Section 7.04(a)
or “outstanding immediately prior to the Close of Business on such Record Date” within the meaning
of Section 7.04(b).





49











 





     (d) If any cash dividend or distribution is paid or made to all or substantially all holders
of shares of Common Stock, the Applicable Conversion Rate shall be increased based on the following
formula:








where,




	 	 	 	 	 

	 

	 	CR0 =
	 	the Applicable Conversion Rate in effect immediately prior to the Close of
Business on the Record Date for such dividend or distribution;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the Applicable Conversion Rate in effect immediately after the Close of
Business on the Record Date for such dividend or distribution;
	 
	 	 	 	 
	 

	 	SP0 =
	 	the average of the Last Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such dividend or distribution; and
	 
	 	 	 	 
	 

	 	C =
	 	the amount in cash per share the Company distributes to holders of shares of
Common Stock.






     The increase in the Conversion Rate under this Section 7.04(d) will become effective
immediately after the Close of Business on the Record Date for such dividend or distribution. If
such dividend or distribution is declared but not so paid or made, the Applicable Conversion Rate
shall be immediately decreased to the Conversion Rate that would then be in effect if such dividend
or distribution had not been declared. For the avoidance of doubt, if the application of the
foregoing formula would result in a decrease in the Applicable Conversion Rate, no adjustment to
the Conversion Rate will be made (other than with respect to the Company’s right to readjust the
Applicable Conversion Rate as described in the immediately preceding sentence).



     Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, for each $1,000 Principal Amount of Notes, at the same time and upon the same terms as
holders of shares of Common Stock, the amount of cash that such Holder would have received if such
Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the
Record Date for such dividend or distribution.



     (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for shares of Common Stock (excluding odd lots of shares of Common Stock), to the
extent that the cash and fair market value of any other consideration included in the payment per
share of Common Stock exceeds the average of the Last Reported Sale Prices of the



50









 





Common Stock over the 10 consecutive Trading Day period immediately following, and including, the Trading Day next
succeeding the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant
to such tender offer or exchange offer, the Applicable Conversion Rate will be increased based on
the following formula:









where




	 	 	 	 	 

	 

	 	CR0 =
	 	the Applicable Conversion Rate in effect immediately prior to the Close of
Business on the Trading Day next succeeding the Expiration Date;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the Applicable Conversion Rate in effect immediately after the Close of
Business on the Trading Day next succeeding the Expiration Date;
	 
	 	 	 	 
	 

	 	AC =
	 	the aggregate fair market value of all cash and any other consideration (as
determined by the Company’s Board of Directors) paid or payable for shares of Common
Stock purchased in such tender offer or exchange offer;
	 
	 	 	 	 
	 

	 	OS0 =
	 	the number of shares of Common Stock outstanding immediately prior to the
Expiration Date (prior to giving effect to the purchase of all shares of Common Stock
accepted for purchase or exchange in such tender offer or exchange offer);
	 
	 	 	 	 
	 

	 	OS1 =
	 	the number of shares of Common Stock outstanding immediately after the
Expiration Date (after giving effect to the purchase of all shares of Common Stock
accepted for purchase or exchange in such tender offer or exchange offer); and
	 
	 	 	 	 
	 

	 	SP1 =
	 	the average of the Last Reported Sale Prices of Common Stock over the 10
consecutive Trading Day period immediately following, and including, the Trading Day
next succeeding the Expiration Date.






     The increase in the Applicable Conversion Rate under this Section 7.04(e) shall occur at the
Close of Business on the 10th Trading Day immediately following the Trading Day next succeeding the
Expiration Date but will be given effect immediately after the Close of Business on the Expiration
Date; provided that in respect of any conversion within the 10 consecutive Trading Day period
immediately following, and including, the Expiration Date, references to 10 consecutive Trading
Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and
including, the Expiration Date to, and including, the Conversion Date in determining the Applicable
Conversion Rate.



51









 





     If the Company is obligated to purchase shares of Common Stock pursuant to any such tender
offer or exchange offer, but the Company is ultimately prevented by applicable law from effecting
all or any portion of such purchases or all such purchases are rescinded, the Applicable Conversion
Rate shall immediately be readjusted to the Conversion Rate that would then be in effect if such
tender offer or exchange offer had not been made or had been made only in respect of the purchases
that had been effected. For the avoidance of doubt, if the application of the foregoing formula
would result in a decrease in the Applicable Conversion Rate, no adjustment to the Applicable
Conversion Rate will be made (other than with respect to the Company’s right to readjust the
Conversion Rate as described in the immediately preceding sentence).



     (f) [RESERVED]



     (g) In addition to those Conversion Rate adjustments required by Sections 7.04(a), 7.04(b),
7.04(c), 7.04(d) and 7.04(e), and to the extent permitted by applicable law and subject to the
applicable rules of The New York Stock Exchange and, if applicable, any other securities exchange
on which the Company’s securities are then listed, the Company from time to time (i) may increase
the Conversion Rate by any amount for a period of at least 20 Business Days if the Company’s Board
of Directors determines that such increase would be in the Company’s best interest and (ii) may
also (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to
holders of shares of Common Stock or rights to purchase shares of Common Stock in connection with
any dividend or distribution of shares of Common Stock (or rights to acquire shares of Common
Stock) or similar event. Whenever the Conversion Rate is increased pursuant to this Section
7.04(g), the Company shall mail to Holders of record of the Notes a notice of the increase (in lieu
of any notice otherwise required under Section 7.04(j) below) at least 5 days prior to the date the
increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate
and the period during which it will be in effect.



     (h) The Applicable Conversion Rate will not be adjusted, among other things:




     (i) upon the issuance of any shares of Common Stock pursuant to any future plan
providing for the reinvestment of dividends or interest payable on the Company’s securities
and the investment of additional optional amounts in shares of Common Stock under any plan;




     (ii) upon the issuance of any shares of Common Stock or options or rights to purchase
those shares pursuant to any present or future employee or director benefit plan or program
of the Company, or assumed by the Company, or any of the Company’s Subsidiaries;




     (iii) upon the issuance of any shares of Common Stock pursuant to the 11.5% Convertible
Bonds or any other option, warrant, right or exercisable, exchangeable or convertible
security not described in clause (ii) above and outstanding as of the date the Notes were
first issued, except as set forth in Section 7.12;




     (iv) for a change in the par value of the Common Stock; or




     (v) for accrued and unpaid interest, and Additional Interest, if any.



52









 





     (i) Adjustments to the Applicable Conversion Rate under this Article 7 shall be calculated to
the nearest cent or to the nearest one-ten thousandth (1/10,000th) of a share of Common Stock. No
adjustment shall be made to the Conversion Rate unless such adjustment would require a change of at
least 1% in the Applicable Conversion Rate. Any adjustment that would otherwise be required to be
made shall be carried forward and taken into account in any future adjustment. Notwithstanding the
foregoing, upon any conversion of the Notes (solely with respect to the Notes to be converted), the
Company shall give effect to all adjustments that Company otherwise has deferred pursuant to the
immediately preceding sentence, and those adjustments will no longer be carried forward and taken
into account in any future adjustment.



     (j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent an Officers’ Certificate setting forth
the Conversion Rate after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received
such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of
the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment became effective and shall mail such notice of such
adjustment of the Conversion Rate to each Holder at such Holder’s latest address appearing in the
Register, within 20 days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of any such adjustment.



     (k) In any case in which this Section 7.04 provides that an adjustment shall become effective
immediately after a Record Date for an event, the Company may defer until the occurrence of such
event (i) issuing to the Holder of any Notes converted after such Record Date and before the
occurrence of such event the additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (ii) paying to such Holder any amount in
cash in lieu of any fraction pursuant to Section 7.03.



     (l) For purposes of this Section 7.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company, so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock held in the treasury
of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.



     Section 7.05 Effect of Reclassification, Consolidation, Merger or Sale. In the case of (i)
any recapitalization, reclassification or change of the Common Stock (other than changes resulting
from a subdivision or combination), (ii) any consolidation, merger or combination involving the
Company, (iii) any sale, lease or other transfer to a third party of all or substantially all of
the consolidated assets of the Company and its Subsidiaries, or (iv) any statutory share exchange,
in each case, as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including cash or any combination thereof) (any
such event, a “Merger Event”), then, at the effective time of the Merger Event, the Company shall
execute with the Trustee a supplemental indenture permitted under Section 14.01 providing for the
right to convert each $1,000 Principal Amount



53









 





of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a
holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such
Merger Event would have owned or been entitled to receive (the “Reference Property”) upon such
Merger Event. If such Merger Event causes the Common Stock to be converted into the right to
receive more than a single type of consideration (determined based in part upon any form of
shareholder election), the Reference Property into which the Notes will be convertible will be
deemed to be the weighted average of the types and amounts of consideration received by the holders
of shares of Common Stock that affirmatively make such an election. The Company shall notify
Holders of the Notes of such weighted average as soon as practicable after such determination is
made. The Company shall not become a party to any Merger Event unless its terms are consistent
with the foregoing. For the avoidance of doubt, adjustments to the Conversion Rate pursuant to Section 7.04 do not apply to
distributions to the extent that the right to convert the Notes has been changed into the right to
convert into, or exchange for, Reference Property.




     The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Holder, at the address of such Holder as it appears on the Register, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality or validity of
such supplemental indenture. The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances. If this Section 7.05 applies to any event or occurrence, Section 7.04 shall not
apply.



     Section 7.06 Adjustments of Prices. Whenever any provision of this Indenture requires a
calculation of the Last Reported Sale Prices over a span of multiple days (including with respect
to the Share Price for purposes of a Make-Whole Fundamental Change), the Company will make
appropriate adjustments determined by the Company or its agents to account for any adjustment to
the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion
Rate where the Ex-Dividend Date, Record Date, effective date or expiration date, as the case may
be, of the event occurs, at any time during the period during which such prices are to be
calculated. Such adjustments will be effective as of the Ex-Dividend Date, Record Date, effective
date or expiration date, as the case may be, of the event causing the adjustment to the Conversion
Rate.



     Section 7.07 Adjustment upon a Make-Whole Fundamental Change.



     (a) If a Make-Whole Fundamental Change occurs and a Holder elects to convert its Notes in
connection with such Make-Whole Fundamental Change, the Company shall increase the Conversion Rate
for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the
“Additional Shares”) as described below. A conversion of Notes shall be deemed for these purposes
to be “in connection with” such Make-Whole Fundamental Change if the notice of conversion of the
Notes is received by the Conversion Agent during the period from, and including, the date on which
the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) up to, and
including, the Business Day immediately prior to the related Fundamental Change Purchase Date (or,
in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for
the proviso in clause (2) of the definition thereof, the 35th Trading Day immediately following the
Effective Date).



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     (b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change,
the Company shall deliver shares of Common Stock, including the Additional Shares, as provided
under Section 7.03. If the consideration for the shares of Common Stock in any Make-Whole
Fundamental Change described in clause (2)(A) of the definition of Fundamental Change is comprised
entirely of cash, for any conversion of the Notes following the Effective Date, the conversion
obligation will be calculated based solely on the Share Price for the transaction and will be
deemed to be, per $1,000 Principal Amount of Notes, an amount equal to the Applicable Conversion Rate (including any adjustment as described in
this Section 7.07) multiplied by such Share Price.



     (c) The number of Additional Shares, if any, by which the Conversion Rate will be increased
will be determined by reference to the table attached as Schedule A hereto, based on the
Effective Date and the price (the “Share Price”) paid (or deemed paid) per share of Common Stock in
the Make-Whole Fundamental Change. If the holders of the shares of Common Stock receive only cash
in a Make-Whole Fundamental Change described in clause (2)(A) of the definition of Fundamental
Change, the Share Price shall be the cash amount paid per share of Common Stock. Otherwise, the
Share Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five
consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the
Effective Date of such Make-Whole Fundamental Change.



     (d) The Share Prices set forth in the column headings of the table in Schedule A
hereto shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise
adjusted. The adjusted Share Prices shall equal the Share Prices immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately
prior to such adjustment giving rise to the Share Price adjustment and the denominator of which is
the Conversion Rate as so adjusted. The number of Additional Shares set forth in such table shall
be adjusted in the same manner as the Conversion Rate as set forth in Section 7.04.



     (e) The exact Share Prices and Effective Dates may not be set forth in the table in
Schedule A, in which case:




     (i) If the Share Price is between two Share Prices in the table or the Effective Date
is between two Effective Dates in the table, the number of Additional Shares by which the
Conversion Rate will be increased will be determined by a straight-line interpolation
between the number of Additional Shares set forth for the higher and lower Share Prices and
the earlier and later Effective Dates, as applicable, based on a 365-day year.




     (ii) If the Share Price is greater than $100.00 per share (subject to adjustment in the
same manner and at the same time as the Share Prices pursuant to Section 7.07(d)), no
Additional Shares will be added to the Conversion Rate.




     (iii) If the Share Price is less than $14.24 per share (subject to adjustment in the
same manner and at the same time as the Share Prices pursuant to Section 7.07(d)), no
Additional Shares will be added to the Conversion Rate.



55









 





     Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 70.2246 shares of
Common Stock per $1,000 Principal Amount of Notes, subject to adjustments in the same manner as the
Conversion Rate as set forth in Section 7.04.



     (f) If a Holder of Notes elects to convert its Notes prior to the Effective Date, such Holder
shall not be entitled to an increased Conversion Rate in connection with such conversion.



     (g) The Company shall notify Holders of the anticipated Effective Date and issue a press
release announcing such Effective Date as soon as practicable after it determines the Effective
Date, but in no event later than five Business Days after such Effective Date; provided that if the
Company does not have knowledge of such transaction within five Business Days of the Effective
Date, no later than five Business Days after the date upon which the Company receives notice, or
otherwise becomes aware, of such transaction.



     Section 7.08 Taxes on Shares Issued. Any issue of share certificates on conversions of
Notes shall be made without charge to the converting Holder for any documentary, transfer, stamp or
any similar tax in respect of the issue thereof, and the Company shall pay any and all documentary,
stamp or similar issue or transfer taxes or duties that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Notes pursuant hereto. The Company shall not,
however, be required to pay any such tax which may be payable in respect of any transfer involved
in the issue and delivery of shares in any name other than that of the Holder of any Notes
converted, and the Company shall not be required to issue or deliver any such share certificate
unless and until the Person or Persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the Company that such tax
has been paid.



     Section 7.09 Reservation of Shares; Shares to be Fully Paid; Compliance with Governmental
Requirements. The Company shall provide, free from preemptive rights, out of its authorized
but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for
the conversion of the Notes from time to time as such Notes are presented for conversion (assuming
that, at the time of the computation of such number of shares or securities, all such Notes would
be held by a single Holder).



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



     The Company covenants that all shares of Common Stock that may be issued upon conversion of
Notes 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 from any lien or
adverse claim.



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     The Company shall use its reasonable efforts to list or cause to have quoted any shares of
Common Stock to be issued upon conversion of Notes on each national securities exchange or
over-the-counter or other domestic market on which the Common Stock is then listed or quoted.



     Section 7.10 Responsibility of Trustee and Conversion Agent . The Trustee and any other Conversion Agent shall not at any time be under any duty or
responsibility to any Holder to determine the Conversion Rate or whether any facts exist which may
require any adjustment of the Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same. The Trustee and any
other Conversion Agent shall not be accountable with respect to the validity or value (or the kind
or amount) of any Common Stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Notes; and the Trustee and any other Conversion Agent make
no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or share certificates or other securities or property or cash upon the surrender of any Notes for
the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article 7. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into pursuant to Section 7.05
relating either to the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Notes after any event referred to in such
Section 7.05 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 11.01, may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental indenture) with respect
thereto.



     Section 7.11 Notice to Holders Prior to Certain Actions. In case:



     (a) the Company shall declare a dividend (or any other distribution) on Common Stock that
would require an adjustment in the Conversion Rate pursuant to Section 7.04; or



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



     (c) of any reclassification or reorganization of the Common Stock (other than a subdivision or
combination of its outstanding Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is required, or of the sale,
lease or transfer of all or substantially all of the assets of the Company; or



     (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company or
any of its Significant Subsidiaries;



57









 





then, in each case, the Company shall cause to be filed with the Trustee and the Conversion Agent
and to be mailed to each Holder at such Holder’s address appearing on the list of Holders provided
for in Section 3.06 of this Indenture, as promptly as practicable, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend, distribution or rights or
warrants, or, if a record is not to be taken, the date as of which the holders of shares of Common
Stock of record to be entitled to such dividend, distribution or rights are to be determined, or
(y) the date on which such reclassification, reorganization, consolidation, merger, sale, lease,
transfer, dissolution, liquidation or winding up is expected to become effective or occur, and the
date as of which it is expected that holders of shares of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities or other property deliverable upon such
reclassification, reorganization, consolidation, merger, sale, transfer, dissolution, liquidation
or winding up. Failure to give such notice, or any defect therein, shall not affect the legality
or validity of such dividend, distribution, reclassification, reorganization, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.




     Section 7.12 Shareholder Rights Plan. Each share of Common Stock issued upon conversion of
Notes pursuant to this Article 7 shall be entitled to receive the appropriate number of rights, if
any, and the certificates representing the shares of Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of any shareholder rights
agreement adopted by the Company, as any such agreement may be amended from time to time.
Notwithstanding the foregoing, if prior to any conversion such rights have separated from the
Common Stock in accordance with the provisions of the applicable shareholder rights agreement, the
Conversion Rate shall be adjusted at the time of separation as if the Company had distributed, to
all holders of the Common Stock, Distributed Property as described in Section 7.03(c) above,
subject to readjustment in the event of the expiration, termination or redemption of such rights.



     Section 7.13 Company Determination Final. Any determination that the Company or its Board
of Directors must make pursuant to this Article 7 shall be conclusive if made in good faith and in
accordance with the provisions of this Article 7, absent manifest error, and set forth in a Board
Resolution.



ARTICLE 8

PURCHASE AT OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE




     Section 8.01 Purchase at Option of Holders upon a Fundamental Change.



     (a) Generally. If a Fundamental Change occurs at any time prior to the Maturity Date
of the Notes, then each Holder shall have the right, at such Holder’s option to require the Company
to purchase any or all of such Holder’s Notes or any portion thereof that is equal to $1,000 or an
integral multiple of $1,000 in excess thereof, on a date specified by the Company that is no
earlier than the 15th and not later than the 35th calendar day following the date of the
Fundamental Change Company Notice, subject to extension to comply with applicable law (the
“Fundamental Change Purchase Date”), at a purchase price in cash equal to 100% of the Principal
Amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Purchase Date or, in the case of a Default by the Company in the payment of the
Fundamental Change Purchase Price with respect to such Notes, the day on



58









 





which such Default is no longer continuing (the “Fundamental Change Purchase Price”);
provided, however, if the Fundamental Change Purchase Date occurs after a Regular Record Date and
on or prior to the Interest Payment Date to which it relates, the Company will pay accrued and
unpaid interest to the Holder of record on such Regular Record Date.




     Purchases of Notes under this Section 8.01 shall be made, at the option of the Holder thereof
upon:




     (i) delivery to the Paying Agent of a duly completed notice (the “Fundamental Change
Purchase Notice”) in the form set forth on the reverse of the Notes on or prior to the
Business Day immediately preceding the Fundamental Change Purchase Date, subject to
extension to comply with applicable law, which must specify:




     (A) if the Notes are Physical Notes, the certificate numbers of the Holder’s
Notes to be delivered for purchase;




     (B) the portion of the Principal Amount of the Holder’s Notes to be purchased,
which must be $1,000 or an integral multiple in excess thereof; and




     (C) that the Holder’s Notes are to be purchased by the Company pursuant to the
applicable provisions of the Notes and this Indenture; and




     (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) (together with all necessary endorsements) at any time on or prior
to the Business Day immediately preceding the Fundamental Change Purchase Date, subject to
extension to comply with applicable law, at the applicable Corporate Trust Office of the
Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to
receipt by the Holder of the Fundamental Change Purchase Price therefor; provided that such
Fundamental Change Purchase Price shall be so paid pursuant to this Section 8.01 only if the
Notes so delivered to the Trustee (or other Paying Agent appointed by the Company) shall
conform in all respects to the description thereof in the related Fundamental Change
Purchase Notice; provided that, if such Holder’s Notes are not Physical Notes, such Holder
must comply with the Applicable Procedures.



     Any purchase by the Company contemplated pursuant to the provisions of this Section 8.01 shall
be consummated by the delivery of the Fundamental Change Purchase Price to be received by the
Holder promptly following the later of the Fundamental Change Purchase Date or the time of the
book-entry transfer or delivery of the Notes.



     Notwithstanding anything herein to the contrary, any Holder delivering to the Trustee (or
other Paying Agent appointed by the Company) the Fundamental Change Purchase Notice contemplated by
this Section 8.01 shall have the right to withdraw such Fundamental Change Purchase Notice (in
whole or in part) at any time prior to the Close of Business on (i) the Business Day prior to the
Fundamental Change Purchase Date or (ii) in the case of a Default by the Company in the payment of
the Fundamental Change Purchase Price with respect to such Notes, the Business Day immediately
preceding the day on which such Default is no longer



59









 





continuing, in either case, by delivery of a written notice of withdrawal to the Trustee (or
other Paying Agent appointed by the Company) in accordance with Section 8.03 below.




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



     (b) Fundamental Change Company Notice. Subject to Section 8.08, on or before the 20th
day after the occurrence of a Fundamental Change, the Company shall provide to all Holders of
record of the Notes and the Trustee and Paying Agent a notice (the “Fundamental Change Company
Notice”) of the occurrence of such Fundamental Change and of the purchase right at the option of
the Holders arising as a result thereof. Such mailing shall be by first class mail.
Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a
notice containing the information included therein once in a newspaper of general circulation in
The City of New York or publish such information on the Company’s website or through such other
public medium as the Company may use at such time.



     Each Fundamental Change Company Notice shall specify:




     (i) the events causing the Fundamental Change;




     (ii) the date of the Fundamental Change;




     (iii) whether the fundamental change is a Make-Whole Fundamental Change, and the last
day on which a Holder may convert in connection with the Make-Whole Fundamental Change;




     (iv) the last date on which a Holder may exercise the purchase right;




     (v) the Fundamental Change Purchase Price;




     (vi) the Fundamental Change Purchase Date;




     (vii) the name and address of the Paying Agent and the Conversion Agent, if applicable;




     (viii) if applicable, the Applicable Conversion Rate and any adjustments to the
Applicable Conversion Rate;




     (ix) if applicable, that the Notes with respect to which a Fundamental Change Purchase
Notice has been delivered by a Holder may be converted only if the Holder withdraws the
Fundamental Change Purchase Notice in accordance with Section 8.03; and




     (x) the procedures that Holders must follow to require the Company to purchase their
Notes.



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     No failure of the Company to give the foregoing notices and no defect therein shall limit any
Holder’s purchase rights or affect the validity of the proceedings for the purchase of the Notes
pursuant to this Section 8.01.



     (c) No Payment During an Acceleration. Notwithstanding the foregoing, no Notes may be
purchased by the Company at the option of the Holders pursuant to this Section 8.01 if the
Principal Amount of the Notes has been accelerated, and such acceleration has not been rescinded,
on or prior to the Fundamental Change Purchase Date (except in the case of an acceleration
resulting from a Default by the Company in the payment of the Fundamental Change Purchase Price
with respect to such Notes).



     (d) Payment of Fundamental Change Purchase Price. The Notes to be purchased pursuant
to this Section 8.01 shall be paid for in cash.



     Section 8.02 Effect of Fundamental Change Purchase Notice. Upon receipt by the Paying
Agent of the Fundamental Change Purchase Notice specified in Section 8.01(a), the Holder of the
Note in respect of which such Fundamental Change Purchase Notice was given shall (unless such
Fundamental Change Purchase Notice is withdrawn as specified in Section 8.03) thereafter be
entitled to receive solely the Fundamental Change Purchase Price with respect to such Note. Such
Fundamental Change Purchase Price shall be payable to such Holder promptly following the later of
(x) the Fundamental Change Purchase Date with respect to such Note (provided the conditions in
Section 8.01(a) have been satisfied) and (y) the time of delivery or book-entry transfer of such
Note to the Paying Agent by the Holder thereof in the manner required by Section 8.01(a).



     Section 8.03 Withdrawal of Fundamental Change Purchase Notice.



     (a) A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a
written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental
Change Company Notice prior to the Close of Business on (i) the Business Day immediately preceding
the relevant Fundamental Change Purchase Date or (ii) in the case of a Default by the Company in
the payment of the Fundamental Change Purchase Price with respect to such Notes, the Business Day
immediately preceding the day on which such Default is no longer continuing, specifying:




     (i) the Principal Amount of the withdrawn Notes;




     (ii) if the Notes are Physical Notes, the certificate numbers of the withdrawn Notes;
and




     (iii) the Principal Amount, if any, of such Notes that remains subject to the original
Fundamental Change Purchase Notice, which must be $1,000 or an integral multiple of $1,000
in excess thereof;



provided that, if such Holder’s Notes are not Physical Notes, such Holder must comply with the
Applicable Procedures.






61









 








     Section 8.04 Deposit of Fundamental Change Purchase Price. Prior to 10:00 a.m. (local time
in The City of New York) on the Fundamental Change Purchase Date, the Company shall deposit with
the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as
the Paying Agent, shall segregate and hold in trust as provided herein) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to pay the Fundamental
Change Purchase Price, of all the Notes or portions thereof that are to be purchased as of the
Fundamental Change Purchase Date. The Company shall promptly notify the Trustee in writing of the
amount of any deposits of cash made pursuant to this Section 8.04. If the Paying Agent holds money
sufficient to pay the Fundamental Change Purchase Price of any Note surrendered for purchase and
not withdrawn in accordance with this Indenture as of the Close of Business on the Fundamental
Change Purchase Date, then immediately following the Close of Business on the Fundamental Change
Purchase Date, (a) any such Note will cease to be outstanding and interest will cease to accrue
thereon on the Fundamental Change Purchase Date (whether or not book-entry transfer of the Notes is
made or whether or not the Notes are delivered to the Paying Agent) and (b) all other rights of the
Holder in respect thereof will terminate (other than the right to receive the Fundamental Change
Purchase Price and previously accrued and unpaid interest (including Additional Interest, if any)
upon delivery or book-entry transfer of such Note).



     Section 8.05 Notes Purchased in Whole or in Part. Any Note that is to be purchased,
whether in whole or in part, shall be surrendered at the office of the Paying Agent (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 such Holder’s
attorney duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note, without service charge, a new Note or Notes,
of any authorized denomination as requested by such Holder in aggregate Principal Amount equal to,
and in exchange for, the portion of the Principal Amount of the Note so surrendered which is not
purchased.



     Section 8.06 Covenant to Comply With Securities Laws upon Purchase of Notes. In connection
with any offer to purchase Notes under Section 8.01, the Company shall, if required:



     (a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other of the tender offer
rules under the Exchange Act that may then be applicable;



     (b) file a Schedule TO or any other required schedule under the Exchange Act; and



     (c) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to purchase the Notes.



     Section 8.07 Repayment to the Company . Subject to the requirements of any applicable abandoned property laws, regardless of who acts as
Paying Agent, the Paying Agent shall return to the Company any cash that remains unclaimed,
together with interest, if any, thereon, held by them for the payment of the Fundamental Change
Purchase Price; provided that to the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 8.04 exceeds the aggregate Fundamental Change Purchase Price of the
Notes or portions thereof which the Company is obligated to purchase as of the Fundamental Change
Purchase Date, then



62









 





as soon as practicable following the Fundamental Change Purchase Date, the
Paying Agent shall return any such excess to the Company.




     Section 8.08 Payment or Consent for Other Secured Indebtedness. Notwithstanding the
foregoing, prior to the Company’s delivery of a Fundamental Change Purchase Notice pursuant to
Section 8.01 and prior to any purchase of Notes by the Company contemplated pursuant to Section
8.01, the Company or any Guarantor must either repay in full in cash or obtain the requisite
consents to purchase the Notes under the 15% Term Loan and any other senior secured Indebtedness of
the Company or any Guarantor requiring such consent or repayment.



ARTICLE 9

EVENTS OF DEFAULT; REMEDIES




     Section 9.01 Events of Default. “Event of Default,” wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):



     (a) failure by the Company to pay any interest on any Notes when due and payable and such
failure continues for a period of 30 days;



     (b) failure by the Company to pay the Principal Amount of any Note when due and payable on the
Maturity Date, upon required purchase in connection with a Fundamental Change, upon declaration of
acceleration or otherwise, including, for the avoidance of doubt, any failure to pay due to a
failure to obtain requisite consents under or repay other Indebtedness pursuant to Section 8.08;



     (c) failure by the Company to comply with its obligation to convert the Notes in accordance
with this Indenture upon exercise of a Holder’s conversion right, and such failure continues for a
period of five Business Days;



     (d) failure by the Company to provide the Fundamental Change Company Notice to Holders
required pursuant to Section 8.01(b) hereof when due, and such failure continues for five Business
Days, including, for the avoidance of doubt, any failure to give such notice due to a failure to
obtain requisite consents under or repay other Indebtedness pursuant to Section 8.08;



     (e) failure by the Company or any Guarantor to comply with its obligations under Article 10
hereof;



     (f) failure by the Company or any Guarantor in the performance of any other covenant or
agreement of the Company in the Notes or in this Indenture that continues for a period of 60 days
after receipt by the Company of a Notice of Default;



     (g) default by the Company or any Subsidiary of the Company with respect to any Indebtedness
for borrowed money of the Company or any Subsidiary (other than any Non-Recourse Debt with respect
to the Company and any Guarantor) in excess of $10,000,000 in the aggregate, whether such
Indebtedness now exists or shall hereafter be created, which default



63









 





results (i) in such Indebtedness becoming or being declared due and payable or (ii) from a failure to pay the principal
of any such Indebtedness when due and payable at its stated maturity, upon required purchase, upon
declaration of acceleration or otherwise; provided, however, that any such Event of Default shall
be deemed cured and not continuing upon payment of such Indebtedness or rescission of such
declaration of acceleration;




     (h) a final judgment for the payment of $20,000,000 or more (excluding any amounts covered by
insurance or bond) rendered against the Company or any Subsidiary of the Company by a court of
competent jurisdiction, which judgment is not discharged, stayed, vacated, paid or otherwise
satisfied within 30 days after (i) the date on which the right to appeal thereof has expired if no
such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;



     (i) the entry by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company or any Significant Subsidiary of the Company of a voluntary case
or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization
or other similar law, (ii) a decree or order adjudging the Company or a Significant Subsidiary of
the Company as bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary of the Company under any applicable federal, state or foreign law or (iii)
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of a Significant Subsidiary of the Company of any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days;



     (j) the commencement by the Company or by a Significant Subsidiary of the Company of a
voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the
Company or of a Significant Subsidiary of the Company in an involuntary case or proceeding under
any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable federal, state or foreign law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of a Significant Subsidiary of the Company
or of any substantial part of such entity’s property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by
the Company or by a Significant Subsidiary of the Company in furtherance of any such action; and



     (k) (i) any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect or (ii) any Guarantor, or
any person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its
Subsidiary Guarantee, except, in each case, by reason of the release of such Subsidiary Guarantee
in accordance with this Indenture.



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     The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have be given to a Trust Officer at the Corporate Trust Office of the Trustee by the
Company’s Paying Agent or any Holder.



     Section 9.02 Acceleration of Maturity: Waiver of Past Defaults and Rescission.



     (a) If an Event of Default (other than those specified in Sections 9.01(i) and 9.01(j)
involving the Company, and as otherwise provided in Section 9.03) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in aggregate Principal
Amount of the outstanding Notes may, and the Trustee at the request of such Holders shall, declare
100% of the Principal Amount plus accrued and unpaid interest on all the outstanding Notes to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such Principal Amount plus accrued and unpaid interest
shall become immediately due and payable.



     Notwithstanding the foregoing, in the case of an Event of Default specified in Section 9.01(i)
or Section 9.01(j) with respect to the Company (but not with respect to any Significant Subsidiary
of the Company or any group of Subsidiaries of the Company that, in the aggregate, would constitute
a Significant Subsidiary of the Company), 100% of the Principal Amount plus accrued and unpaid
interest on all outstanding Notes will automatically become due and payable without any declaration
or other act on the part of the Trustee or any Holder.



     (b) The Holders of a majority in aggregate Principal Amount of the outstanding Notes, by
written notice to the Company and the Trustee, may (x) waive any past Default and its consequences
and (y) at any time after a declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article
9 provided, rescind any such acceleration with respect to the Notes and its consequences, except,
in each case, with respect to a Default described in Section 9.01(a), Section 9.01(b) or Section
9.01(c), or in respect of a covenant or provision hereof which under Article 14 cannot be modified
or amended without the consent of the Holder of each outstanding Note affected, if:




     (i) such rescission will not conflict with any judgment or decree of a court of
competent jurisdiction; and




     (ii) all existing Events of Default (other than the non-payment of any Principal Amount
or interest that became due solely by such declaration of acceleration) have been cured or
waived.



     Upon any such waiver, the Default which has been waived shall cease to exist and any Event of
Default arising therefrom shall be deemed to have been cured, for every other purpose of the
Indenture; but not such waiver shall extend to any subsequent or other Default or impair any right
consequent.



     No such rescission shall affect any subsequent default or impair any right consequent thereon.



     Section 9.03 Additional Interest.



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     (a) If, at any time during the six-month period beginning on, and including, the date which is
six months after the last date of original issuance of any of the Initial Notes, the Company fails
to timely file any document or report that the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all
applicable grace periods thereunder and other than current reports on Form 8-K), or the Notes are
not otherwise Freely Tradable (as a result of restrictions pursuant to U.S. securities law or the
terms of this Indenture or the Notes), the Company shall pay Additional Interest on the Notes,
which shall accrue at the rate of 0.50% per annum of the Principal Amount of Notes outstanding for
each day during such period for which the Company’s failure to file has occurred and is continuing
or for which the Notes are not Freely Tradable (ending on the date that is one year from the last
date of original issuance of any of the Initial Notes); provided that, notwithstanding anything to
the contrary in this Indenture, during the six-month period beginning on, and including, the date
which is six months after the last date of original issuance of any of the Initial Notes, in no
event shall the aggregate amount of Additional Interest payable pursuant to this paragraph and
pursuant to Section 9.03(b) exceed 0.50% per annum.



     Further, if, and for so long as, the Restrictive Notes Legend has not been removed from the
Notes, the Notes are assigned a restricted CUSIP number or the Notes are not otherwise Freely
Tradable as of the 366th day after the last date of original issuance of any of the Initial Notes,
the Company shall pay Additional Interest on the Notes. Such Additional Interest will accrue on
the Notes at the rate of 0.50% per annum of the Principal Amount of Notes outstanding until the
Restrictive Notes Legend has been removed in accordance with Section 3.08, the Notes are assigned
an unrestricted CUSIP number and the Notes are Freely Tradable.



     The obligations of the Company pursuant to this Section 9.03(a) are separate and distinct
from, and in addition to, the obligations of the Company pursuant to Section 9.03(b), subject to
proviso to the first paragraph of this Section 9.03(a). Any Additional Interest payable pursuant
to this Section 9.03(a) will be payable in arrears on each Interest Payment Date following accrual
in the same manner as ordinary interest is payable pursuant to Section 2.03.



     (b) Notwithstanding anything to the contrary in this Indenture, if so elected by the Company,
the sole remedy for an Event of Default relating to the failure to comply with Section
4.10 hereof will (i) for the first 90 days after the occurrence of such an Event of Default
consist exclusively of the right to receive Additional Interest on the Notes at an annual rate
equal to 0.25% of the Principal Amount of outstanding Notes and (ii) from the 91st day until the
180th day following the occurrence of such an Event of Default consist exclusively of the right to
receive Additional Interest on the Notes at an annual rate equal to 0.50% of the Principal Amount
of outstanding Notes. The Additional Interest payable pursuant to this Section 9.03(b) will be in
addition to any Additional Interest that may accrue pursuant to Section 9.03(a) (subject to the
proviso to the first paragraph of such Section). If the Company so elects, the Additional Interest
payable under this Section 9.03(b) will be payable on all outstanding Notes from and including the
date on which such Event of Default first occurs to and including the 180th day thereafter, or such
earlier date on which such Event of Default has been cured or waived or ceases to exist. On the
181st day after such Event of Default, if such Event of Default has not been cured or waived prior
to such 181st day, Additional Interest payable pursuant to this Section 9.03(b) will cease to
accrue and the Notes will be subject to acceleration as provided in Section 9.02. In the event the
Company does not elect to pay the Additional Interest payable



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pursuant to this Section 9.03(b) upon an Event of Default in accordance with this paragraph, the Notes will be subject to acceleration as
provided in Section 9.02. Any Additional Interest payable pursuant to this Section 9.03(b) will be
payable in arrears on each Interest Payment Date following accrual in the same manner as ordinary
interest is payable pursuant to Section 2.03.




     In order to elect to pay the Additional Interest payable pursuant to this Section 9.03(b) as
the sole remedy during the first 180 days after the occurrence of an Event of Default relating to
the failure to comply with Section 4.10 in accordance with the immediately preceding paragraph, the
Company must notify all Holders, the Trustee and Paying Agent of such election on or before the
Close of Business on the date on which such Event of Default first occurs. Upon the failure to
timely give all Holders, the Trustee and Paying Agent such notice, the Notes will be immediately
subject to acceleration as provided in Section 9.02.



     Section 9.04 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if a Default is made in the payment of the Principal Amount plus accrued and unpaid
interest on the Maturity Date therefor or in the payment of the Fundamental Change Purchase Price
in respect of any Note, the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Notes, the whole amount then due and payable on such Notes, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.



     If an Event of Default occurs and is continuing, the Trustee may, but shall not be obligated
to, pursue any available remedy to collect the payment of the Principal Amount plus accrued but
unpaid interest on the Notes or to enforce the performance of any provision of the Notes or this
Indenture. The Trustee may maintain a proceeding even if the Trustee does not possess any of the
Notes or does not produce any of the Notes 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. No remedy
is exclusive of any other remedy. All available remedies are cumulative.



     Section 9.05 Trustee May File Proofs of Claim. In case of any judicial proceeding relative
to the Company (or any other obligor upon the Notes), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under this Indenture and applicable law in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to 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 other similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due 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 11.07.



     No provision of this Indenture 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,



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adjustment or composition affecting the Notes 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.




     Section 9.06 Application of Money Collected. Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money to Holders, upon presentation of the Notes and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee under Section 11.07;



     SECOND: To the payment of the amounts then due and unpaid on the Notes for the Principal
Amount, Fundamental Change Purchase Price, or interest (including Additional Interest, if any) as
the case may be, in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on
such Notes; and



     THIRD: To the payment of the remainder, if any, to the Company or any other Person lawfully
entitled thereto.



     Section 9.07 Limitation on Suits. No Holder of any Note shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, the Notes, the Subsidiary
Guarantees or for the appointment of a receiver or trustee, or for any other remedy hereunder
(other than in the case of an Event of Default specified in Section 9.01(a), Section 9.01(b) or
Section 9.01(c)) unless:




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




     (ii) the Holder or Holders of not less than 25% in aggregate Principal Amount of the
outstanding Notes shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in is own name as Trustee hereunder;




     (iii) such Holder or Holders have offered to the Trustee security or indemnity
reasonably satisfactory to it against any loss, liability or expense;




     (iv) the Trustee for 60 days after its receipt of such request and offer of security or
indemnity has failed to institute any such proceeding; and




     (v) no direction, in the opinion of the Trustee, inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a majority in
aggregate Principal Amount of the outstanding Notes;



it being understood and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the Holders.






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     Section 9.08 Unconditional Right of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of the Principal Amount
(including the Fundamental Change Purchase Price or interest in respect of the Notes held by such
Holder, on or after the respective due dates expressed in the Notes, or any Fundamental Change
Purchase Date or otherwise, as applicable), any accrued and unpaid interest (including Additional
Interest, if any) and to convert the Notes in accordance with Article 7, or to bring suit for the
enforcement of any such payment on or after such respective dates or the right to convert, shall
not be impaired or affected without the consent of such Holder.



     Section 9.09 Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.



     Section 9.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 3.09, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder shall not prevent the concurrent assertion or employment of any other appropriate right
or remedy.



     Section 9.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.



     Section 9.12 Control by Holders. The Holders of a majority in aggregate Principal Amount
of the outstanding Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with applicable law or this
Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder or
that would involve the Trustee in personal liability. Prior to taking any action under this
Indenture, the Trustee will be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such action.



     Section 9.13 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, in either case in respect of the Notes, a court may require any party litigant in such
suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable
costs,



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including reasonable attorney’s 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; but the provisions of this Section 9.13 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in Principal Amount of the outstanding Notes, or to
any suit instituted by any Holder for the enforcement of the payment of the Principal Amount on any
Note on or after the Maturity Date of such Note or the Fundamental Change Purchase Date.




     Section 9.14 [Reserved.]



     Section 9.15 Violations of Certain Covenants. A violation of Section 4.10 or any other
covenant or agreement in this Indenture that expressly provides that a violation of such covenant
or agreement shall not constitute an Event of Default may only be enforced by the Trustee by
instituting a legal proceeding against the Company for enforcement of such covenant or agreement.



ARTICLE 10

MERGER, CONSOLIDATION OR SALE OF ASSETS




     Section 10.01 Company May Consolidate, etc., only on Certain Terms. The Company shall not,
in a single transaction or through a series of related transactions, consolidate or merge with or
into any other Person, or, directly or indirectly, sell, convey, transfer, lease or otherwise
dispose of all or substantially all of Company’s assets to another Person or group of affiliated
Persons, except that the Company may consolidate or merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its assets to another Person if:




     (i) the Company is the surviving Person or the resulting, surviving, transferee or
successor Person (the “Successor Entity”) (if other than the Company) is a corporation or
other legal entity organized and existing under the laws of the United States of America,
any State of the United States of America or the District of Columbia and such Successor
Entity (if not the Company) expressly assumes by an indenture supplemental hereto all
obligations of the Company under this Indenture, including payment of the Principal Amount
and interest on the Notes, and the performance and observance of all of the covenants of
this Indenture to be performed by the Company;




     (ii) immediately after giving effect to such transaction, no Default or Event of
Default under this Indenture has occurred and is continuing;




     (iii) if, upon the occurrence of any such consolidation, merger, sale, conveyance,
transfer, lease or other disposal, (x) the Notes would become convertible pursuant to the
terms of this Indenture into securities issued by an issuer other than the Successor Entity,
and (y) such Successor Entity is a wholly owned subsidiary of the issuer of such securities
into which the Notes have become convertible, such other issuer shall fully and
unconditionally guarantee on a senior basis the Successor Entity’s obligations under the
Notes; and




     (iv) the Company shall have delivered to the Trustee an Officers’ Certificate and
Opinion of Counsel stating that such consolidation, merger, sale, conveyance,



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transfer lease or other disposal and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article 10 and that all
conditions precedent herein provided for relating to such transaction have been satisfied.



     Section 10.02 Successor Substituted. Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any sale, conveyance, transfer, lease or other disposal of
all or substantially all of the Company’s assets to another Person in accordance with Section
10.01, the Successor Entity formed by such consolidation or into which the Company is merged or to
which such sale, conveyance, transfer, lease or other disposal is made shall succeed to, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such
Successor Entity had been named as the Company herein. If the predecessor is still in existence
after such transaction, it will be released from its obligations and covenants under this indenture and the
Notes, except in the case of a lease of all or substantially all of its assets.



ARTICLE 11

THE TRUSTEE




     Section 11.01 Duties and Responsibilities of Trustee.



     (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default has occurred (which
has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his own affairs.



     (b) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:




     (i) prior to the occurrence of an Event of Default and after the curing or waiving of
all Events of Default which may have occurred:




     (A) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture and applicable law, and the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and




     (B) in the absence of bad faith and willful misconduct on the part of the
Trustee, the Trustee may conclusively rely as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; but,
in the case of any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not



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they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of
any mathematical calculations or other facts stated therein;




     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer or Officers of the Trustee, unless the Trustee was negligent in ascertaining
the pertinent facts;




     (iii) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the written direction of the Holders of not
less than a majority in Principal Amount of the Notes at the time outstanding
determined as provided in Section 1.04 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture;




     (iv) whether or not therein provided, every provision of this Indenture relating to the
conduct or affecting the liability of, or affording protection to, the Trustee shall be
subject to the provisions of this Section;




     (v) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected
by the Company or any Paying Agent or any records maintained by any co-Registrar with
respect to the Notes; and



     (c) if any party fails to deliver a notice relating to an event the fact of which, pursuant to
this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred.



     None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.



     Section 11.02 Notice of Defaults. The Trustee shall give the Holders notice of any Default
of which the Trustee has knowledge or is deemed to have notice under Section 11.03(i) within 90
days after the occurrence thereof so long as such Default is continuing; provided, that (except in
the case of any Default in the payment of Principal Amount of, or interest on, any of the Notes or
Fundamental Change Purchase Price or a default in the delivery of the consideration due upon
conversion), the Trustee shall be protected in withholding such notice if and so long as a
committee of officers of the Trustee in good faith determines that the withholding of such notice
is in the interest of the Holders of Notes.



     Section 11.03 Reliance on Documents, Opinions, Etc. Except as otherwise provided in
Section 11.01:



     (a) the Trustee may rely and shall be protected in acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,



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debenture, note, coupon or other paper or document (whether in its original or facsimile form) believed by it in
good faith to be genuine and to have been signed or presented by the proper party or parties;




     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Company’s Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary, any Assistant Secretary
or the General Counsel of the Company;



     (c) the Trustee may consult with counsel of its own selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;



     (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders pursuant to the
provisions of this Indenture (including upon the occurrence and during the continuance of an Event
of Default), unless such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against any loss, expenses and liabilities which may be incurred therein or
thereby;



     (e) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney (at the
reasonable expense of the Company and shall incur no liability of any kind by reason of such
inquiry or investigation);



     (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed by it
with due care hereunder;



     (g) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;



     (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 shall not be deemed to have notice of any Default or Event of Default unless a
Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any




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event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and the Indenture; and




     (j) 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.



     Section 11.04 No Responsibility for Recitals, Etc. The recitals contained herein and in
the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes
or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.



     Section 11.05 Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. The
Trustee, any Paying Agent, any Conversion Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would have if it were
not Trustee, Paying Agent, Conversion Agent or Registrar.



     Section 11.06 Monies to be Held in Trust. Subject to the provisions of Section 13.04, all
monies and properties received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it hereunder except as
may be agreed in writing from time to time by the Company and the Trustee.



     Section 11.07 Compensation and Expenses of Trustee. The Company covenants and agrees to
pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation
for all services rendered by it hereunder in any capacity (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed
to from time to time in writing between the Company and the Trustee, and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence, willful misconduct or bad faith. The Company also covenants to
indemnify the Trustee (or any officer, director or employee of the Trustee), in any capacity under
this Indenture and its agents and any authenticating agent for, and to hold them harmless against,
any and all loss, liability, claim or expense incurred without negligence, willful misconduct or bad faith on
the part of the Trustee or such officers, directors, employees and agent or authenticating agent,
as the case may be, and arising out of or in connection with the acceptance or administration of
this trust or in any other capacity hereunder, including the costs and expenses of defending
themselves against any claim of liability in the premises. The obligations of the Company under
this Section 11.07 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses,



74









 




disbursements and advances shall be secured by a lien prior to that of the Notes upon all
property and funds held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Notes. The obligation of the Company under this Section shall
survive the satisfaction and discharge of this Indenture.




     When the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 9.01(i) or Section 9.01(j) with respect to the
Company occurs, the expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy, insolvency or similar laws.



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



     Section 11.08 Officers’ Certificate as Evidence. Except as otherwise provided in Section
11.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate delivered to the
Trustee.



     Section 11.09 Conflicting Interests of Trustee. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest within 90 days or resign, to the extent and in the manner provided by, and
subject to the provisions of, this Indenture.



     Section 11.10 Eligibility of Trustee. There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has
a combined capital and surplus of at least $50,000,000 (or if such Person is a member of a bank
holding company system, its bank holding company shall have a combined capital and surplus of at
least $50,000,000). If such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 11.10, it
shall resign immediately in the manner and with the effect hereinafter specified in this Article.



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



     Section 11.11 Resignation or Removal of Trustee.



     (a) The Trustee may at any time resign by giving written notice of such resignation to the
Company and to the Holders of Notes. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the
Company’s Board of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment sixty (60) days after the mailing of such notice



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of resignation to the Holders, the resigning Trustee may, upon ten (10) Business Days’ notice to the
Company and the Holders, appoint a successor identified in such notice or may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment of a successor
trustee, or, if any Holder who has been a bona fide Holder of a Note or Notes for at least six (6)
months may, subject to the provisions of Section 9.13, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.




     (b) In case at any time any of the following shall occur:




     (i) the Trustee shall fail to comply with Section 11.09 after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Note or Notes for at
least six (6) months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 11.10 and shall fail to resign after written request therefor by the Company or by
any such Holder; or




     (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;


then, in any such case, the Company may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Company’s Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 9.13, any Holder who has been a bona fide Holder
of a Note or Notes for at least six (6) months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee; provided, however, that if no successor Trustee shall have been
appointed and have accepted appointment sixty (60) days after either the Company or the Holders has
removed the Trustee, the Trustee so removed may petition at its own expense any court of competent
jurisdiction for an appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.




     (c) The Holders of a majority in aggregate Principal Amount of the Notes at the time
outstanding may at any time remove the Trustee and nominate a successor trustee which shall be
deemed appointed as successor trustee unless, within ten (10) days after notice to the Company of
such nomination, the Company objects thereto, in which case the Trustee so removed or any Holder,
or if such Trustee so removed or any Holder fails to act, the Company, upon the terms and
conditions and otherwise as in Section 11.11(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor trustee.



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     (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 9.11 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 11.12.



     Section 11.12 Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 11.11 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of
Section 11.07, execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property and funds held or collected by such trustee as
such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any
amounts then due it pursuant to the provisions of Section 11.07.



     No successor trustee shall accept appointment as provided in this Section 11.12 unless, at the
time of such acceptance, such successor trustee shall be qualified under the provisions of Section
11.09 and be eligible under the provisions of Section 11.10.



     Upon acceptance of appointment by a successor trustee as provided in this Section 11.12, the
Company (or the former trustee, at the written direction of the Company) shall mail or cause to be
mailed notice of the succession of such trustee hereunder to the Holders of Notes at their
addresses as they shall appear on the Register. If the Company fails to mail such notice within
ten (10) days after acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Company.



     Section 11.13 Succession by Merger, Etc. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including any trust created by this Indenture), shall be
the successor to the Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that in the case of any corporation
succeeding to all or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 11.09 and eligible under the
provisions of Section 11.10.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any



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successor to the Trustee or any authenticating agent appointed by such successor trustee may
authenticate such Notes in the name of the successor trustee; and in all such cases such
certificates shall have the full force that is provided in the Notes or in this Indenture;
provided, however, that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Notes in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.




     Section 11.14 Preferential Collection of Claims. If and when the Trustee shall be or
become a creditor of the Company (or any other obligor upon the Notes), the Trustee shall be
subject to the provisions of § 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in § 311(b), regarding the collection of the claims against the Company (or any
such other obligor). A Trustee who has resigned or been removed shall be subject to § 311(a) to
the extent indicated therein.



     Section 11.15 Trustee’s Application for Instructions from the Company. Any application by
the Trustee for written instructions from the Company (other than with regard to any action
proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders
of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall
not be less than three (3) Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in writing to any earlier
date) unless prior to taking any such action (or the effective date in the case of an omission),
the Trustee shall have received written instructions in response to such application specifying the
action to be taken or omitted.



ARTICLE 12

HOLDERS’ LISTS AND REPORTS BY TRUSTEE




     Section 12.01 Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:




     (i) semiannually, not more than 15 days after each Regular Record Date, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date; and




     (ii) at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished;


excluding from any such list names and addresses received by the Trustee in its capacity as
Registrar; provided, however, that no such list need be furnished so long as the Trustee is acting
as Registrar.




     Section 12.02 Preservation of Information; Communications to Holders.



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     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 12.01 and the names and addresses of Holders received by the Trustee in its capacity as
Registrar. The Trustee may destroy any list furnished to it as provided in Section 12.01 upon
receipt of a new list so furnished.



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



     (c) Every Holder, by receiving and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders made pursuant to
applicable law.



     Section 12.03 Reports By Trustee. Within 60 days after each January 15 beginning with the
January 15 following the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that
complies with Trust Indenture Act § 313(a) (but if no event described in Trust Indenture Act §
313(a) has occurred within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with Trust Indenture Act § 313(b)(2), to the extent
applicable, and § 313(b)(1). The Trustee shall also transmit by mail all reports as required by
Trust Indenture Act § 313(c).



     A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the SEC and each stock exchange (if any) on which the Notes are listed
in accordance with Trust Indenture Act § 313(d). The Company shall promptly notify the Trustee
when the Notes are listed on or de-listed from any stock exchange.



ARTICLE 13

SATISFACTION AND DISCHARGE




     Section 13.01 Discharge of Indenture. When (a) the Company shall deliver to the Trustee
for cancellation all Notes theretofore authenticated (other than any Notes that have been
destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Trustee for cancellation shall have become due and payable, and the
Company shall deposit with the Trustee, in trust, cash or shares of Common Stock (in the case of
any conversion) sufficient to pay on the Maturity Date, upon any Fundamental Change Date or upon
any conversion (other than any Notes that shall have been mutilated, destroyed, lost or stolen and
in lieu of or in substitution for which other Notes shall have been authenticated and delivered)
not theretofore canceled or delivered to the Trustee for cancellation, including principal and
interest or shares of Common Stock (in the case of any conversion) due to such Maturity Date,
Fundamental Change Purchase Date or upon conversion, as the case may be, accompanied by a
verification report, as to the sufficiency of the deposited amount, from an independent certified
accountant or other financial professional satisfactory to the Trustee, and if



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the Company shall
also pay or deliver or cause to be paid or delivered all other sums payable or deliverable
hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (i)
remaining rights of registration of transfer, substitution and exchange and conversion of Notes,
(ii) rights hereunder of Holders to receive payments of principal of and interest or (in the case
of any conversion) shares of Common Stock on, the Notes and the other rights, duties and
obligations of Holders, as beneficiaries hereof with respect to the amounts, if any, so deposited
with the Trustee and (iii) the rights, obligations and immunities of the Trustee hereunder), and
the Trustee, on written demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel as required by Section 1.02 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture; the
Company, however, hereby agrees to the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this Indenture or the Notes.




     Section 13.02 Deposited Monies to be Held in Trust by Trustee. Subject to Section 13.04,
all monies and shares of Common Stock deposited with the Trustee pursuant to Section 13.01 shall be
held in trust for the sole benefit of the Holders, and such monies and shares of Common Stock shall
be applied by the Trustee to the payment, either directly or through any Paying Agent (including
the Company if acting as its own Paying Agent), to the Holders of the particular Notes for the
payment or delivery upon conversion thereof have been deposited with the Trustee, of all sums and
amounts due thereon for principal and interest or upon conversion.



     Section 13.03 Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of
this Indenture, all monies then held by any Paying Agent of the Notes (other than the Trustee)
shall, upon written request of the Company, be repaid
to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.



     Section 13.04 Return of Unclaimed Monies. Subject to the requirements of applicable
abandoned property laws, any monies or shares of Common Stock deposited with or paid to the Trustee
for payment of the principal of or interest on Notes and not applied but remaining unclaimed by
the Holders of Notes for two years after the date upon which the principal of or interest on such
Notes or shares of Common Stock, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee on demand and all liability of the Trustee shall thereupon
cease with respect to such monies or shares of Common Stock; and the Holder of any of the Notes
shall thereafter look only to the Company for any payment or delivery that such Holder may be
entitled to collect unless an applicable abandoned property law designates another Person.



     Section 13.05 Reinstatement. If the Trustee or the Paying Agent is unable to apply any
money or shares of Common Stock in accordance with Section 13.02 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 13.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money or shares of Common Stock in
accordance with Section 13.02; provided, however, that if the Company makes any payment of interest
on or principal of any Note or delivery of shares of Common Stock due upon conversion



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following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money, or delivery from the shares of Common Stock, as
the case may be, held by the Trustee or Paying Agent.




ARTICLE 14

SUPPLEMENTAL INDENTURES




     Section 14.01 Supplemental Indentures without Consent of Holders. Without the consent of
any Holders, the Company, the Guarantors and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:




     (i) to cure any ambiguity or correct any inconsistent or otherwise defective provision
contained herein, so long as such action will not adversely affect the interests of the
Holders in any material respect;




     (ii) to provide for the assumption by a Successor Entity of the obligations of the
Company contained herein or to comply with the requirements of Section 7.05;




     (iii) to add any additional Guarantor with respect to the Notes in accordance with
Section 4.16 or to evidence the release of any Guarantor from its Subsidiary Guarantee in
accordance with Section 15.03;




     (iv) to secure the Notes or the Subsidiary Guarantees;




     (v) to add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company;




     (vi) make any change that does not materially adversely affect the rights of any
Holder; or




     (vii) to conform the provisions of this Indenture to the “Description of Notes” section
in the Offering Memorandum.



     Section 14.02 Supplemental Indentures with Consent of Holders. With the consent of the
Holders of not less than a majority in Principal Amount of the outstanding Notes (including
consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes),
as evidenced in accordance with Section 1.06, the Company, when authorized by a Board Resolution,
the Guarantors and the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the Holders under this
Indenture; provided, however, that no such supplemental indenture shall, without the consent of the
Holder of each outstanding Note affected thereby, among other things:




     (i) reduce the percentage in Principal Amount of Notes whose Holders must consent to an
amendment of this Indenture or to waive any past default;



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     (ii) reduce the rate of, or extend the time of payment of, any interest on any Note;




     (iii) reduce the Principal Amount of, or extend the Maturity Date of, any Note;




     (iv) make any change that impairs or adversely affects the conversion rights of any
Note;




     (v) reduce the Fundamental Change Purchase Price of any Note or amend or modify in any
manner adverse to the Holders of Notes the Company’s obligation to make such payments,
whether through an amendment or waiver of provisions in the covenants, definitions or
otherwise;




     (vi) make any Note payable in a currency other than that stated in the Notes;




     (vii) impair the right of any Holder to receive payment of principal of, and interest
on, such Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Notes;




     (viii) change the ranking of the Notes or any Subsidiary Guarantee;




     (ix) release any Guarantor from any of its obligations under its Subsidiary Guarantee
or this Indenture otherwise than in accordance with this Indenture; or




     (x) modify any of the provisions of this Section 14.02 or Section 9.02(b).



     It shall not be necessary for any consent of Holders under this Section 14.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such act
shall approve the substance thereof.



     Section 14.03 Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article 14 or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be provided with,
and (subject to Section 11.01) shall be fully protected in relying upon, in addition to the
documents required by Section 1.02, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. Subject to the preceding
sentence, the Trustee shall sign such supplemental indenture if the same does not adversely affect
the Trustee’s own rights, duties or immunities under this Indenture or otherwise. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture that adversely affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.



     Section 14.04 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article 14, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder
theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



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     Section 14.05 [Reserved.]



     Section 14.06 Reference in Notes to Supplemental Indentures. Notes authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article 14 shall bear
a notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for outstanding Notes.



     Section 14.07 Notice to Holders of Supplemental Indentures. The Company shall cause notice
of the execution of any supplemental indenture pursuant to Section 14.02 to be mailed to each
Holder, at such Holder’s address appearing on the Register provided for in this Indenture, within
20 days after execution thereof. Failure to deliver such
notice, or any defect in such notice, shall not impair or affect the legality or validity of such
supplemental indenture.



ARTICLE 15

GUARANTEES OF NOTES




     Section 15.01 Subsidiary Guarantees. Subject to this Article 15, each of the Guarantors
hereby, jointly and severally, unconditionally guarantees, on a senior unsecured basis, to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder and thereunder, that:



     (a) the principal of, and interest on, each of the Notes will be promptly paid in full when
due, whether at stated maturity, by acceleration, upon repurchase or otherwise, and interest on the
overdue principal of and (to the extent permitted by law) interest and Additional Interest, if any,
on, the Notes, and all other payment obligations of the Company to the Holders or the Trustee under
this Indenture or the Notes will be promptly paid in full and performed, all in accordance with the
terms hereof and thereof; and



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



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



     The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance (other than complete performance) which might



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




     If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors, or any custodian, Trustee or other similar official acting in relation to any of
the Company or the Guarantors, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby
until payment in full of the obligations guaranteed hereby.



     Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (a) the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article 9 hereof for the purposes of its Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed thereby, and (b) in the event of any declaration of acceleration of
such obligations as provided in Article 9 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantor for the purpose of its Subsidiary
Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor
so long as the exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantees.



     Section 15.02 Guarantors May Consolidate, etc., on Certain Terms.



     (a) A Guarantor will not, in a single transaction or through a series of related transactions,
consolidate or merge with or into any other Person, or, directly or indirectly, sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets to another Person or
group of affiliated Persons, other than the Company or another Guarantor, unless immediately after
giving effect to such transaction, no Default or Event of Default under this Indenture has occurred
and is continuing, and either (i) the Successor Entity (if other than the Guarantor) is a
corporation or other legal entity organized and existing under the laws of the United States of
America, any State of the United States of America or the District of Columbia and such Successor
Entity (if not the Guarantor) expressly assumes by supplemental indenture all obligations of the
Guarantor under its Subsidiary Guarantee and this Indenture, or (ii) the Subsidiary Guarantee of
such Guarantor is released as described in Section 15.03.



     (b) In the case of any such consolidation or merger and upon the assumption by the Successor
Entity, by supplemental indenture, executed and delivered to the Trustee and substantially in the
form of Annex A hereto, of the Subsidiary Guarantee of, and the due and punctual
performance of all of the covenants of this Indenture to be performed by, the applicable Guarantor,
such Successor Entity shall succeed to and be substituted for such Guarantor with the same effect
as if it had been named herein as a Guarantor.



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     Section 15.03 Releases of Subsidiary Guarantees. The Subsidiary Guarantee of a Guarantor
shall be automatically and unconditionally released: (1) at such time as such Guarantor ceases to
guarantee any other Indebtedness of the Company or any other Guarantor in excess of the De Minimis
Guaranteed Amount (other than by reason of payment under any guarantee of any such Indebtedness);
(2) in connection with any sale or other disposition (including by way of merger or consolidation)
of the Capital Stock of such Guarantor to a Person that is not (either before or after giving
effect to such transaction) the Company or a Subsidiary of the Company, if the Guarantor no longer
qualifies as a Subsidiary as a result of
such disposition; (3) upon a sale or other disposition of all or substantially all of its assets;
or (4) upon satisfaction and discharge of this Indenture in accordance with Article 13.



     Upon delivery by the Company to the Trustee of an Officers’ Certificate to the effect that any
of the conditions described in the foregoing clauses (1) – (4) has occurred, the Trustee shall
execute any documents reasonably requested by the Company in order to evidence the release of any
Guarantor from its obligations under its Subsidiary Guarantee. Any Guarantor not released from its
obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of
and interest, premium, and Additional Interest, if any, on, the Notes and for the other obligations
of such Guarantor under this Indenture as provided in this Article 15.



     Further, the Subsidiary Guarantees with respect to a Note are not convertible and will
automatically terminate when that Note is converted in accordance with Article 7.



     Section 15.04 Limitation on Guarantor Liability. Each Guarantor, and by its acceptance of
Notes, each Holder, hereby confirms that it is the intention of all such parties that the
Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of any bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary
Guarantee. The obligations of each Guarantor under its Subsidiary Guarantee will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Subsidiary
Guarantee or pursuant to its contribution obligations under this Indenture, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law and not otherwise being void or
voidable under any similar laws affecting the rights of creditors generally.



     Section 15.05 “Trustee” to Include Paying Agent. In case at any time any Paying Agent
other than the Trustee shall have been appointed and be then acting hereunder, the term “Trustee”
as used in this Article 15 shall in each case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within its meaning as fully and for all
intents and purposes as if such Paying Agent were named in this Article 15 in place of the Trustee.



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ARTICLE 16

MISCELLANEOUS




     Section 16.01 Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Trust Indenture Act § 318(c) with respect to an
indenture required to be qualified under the Trust Indenture Act, such Trust Indenture Act-imposed
duties shall control.



     Section 16.02 Notices to Parties Hereto. Any notice or communication shall be in writing (including telecopy promptly confirmed in
writing) in the English language and delivered in person or mailed by first-class mail addressed as
follows:



     if to the Company or any Guarantor:


Endeavour International Corporation

1001 Fannin Street, Suite 1600

Houston, Texas 77002

Attention: Chief Financial Officer

Facsimile No. (713) 307-8783




     with a copy (which shall not constitute notice) to:


Vinson & Elkins L.L.P.

First City Tower

1001 Fannin Street, Suite 2500

Houston, TX 77002

Attention: S. Griffith Aldrich

Facsimile No. (713) 615-5626




     if to the Trustee:


Wells Fargo Bank, National Association

1445 Ross Avenue, 2nd Floor

MAC T5303-022

Dallas, Texas 75202

Attention: Corporate Trust and Escrow Services

Facsimile No. (214) 777-4086




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



     Any notice or communication to a registered Holder shall be given in the manner provided in
Section 1.06. Any such notice or communication shall also be so mailed to any Person described in
Trust Indenture Act § 313(c), to the extent required by the Trust Indenture Act.



     The Trustee agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Indenture given by the Company, provided, however, that (i)



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the Company, subsequent to such facsimile transmission of written instructions and/or directions, shall
provide the originally executed instructions and/or directions to the Trustee in a timely manner
and (ii) such originally executed instructions and/or directions shall be signed by an authorized
officer of the Company.




     Section 16.03 [Reserved.]



     Section 16.04 When Notes Are Disregarded. In determining whether the Holders of the
required Principal Amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee
actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes
outstanding at the time shall be considered in any such determination.



     Section 16.05 Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by, or a meeting of, Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.



     Section 16.06 Legal Holidays. If an Interest Payment Date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a Regular Record Date is a Legal Holiday, the Regular Record Date
shall not be affected. In any case where the Maturity Date or Fundamental Change Purchase Date, as
the case may be, of any Note is a Legal Holiday, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of principal need not be made on such date, but may be made on
the next succeeding day that is not a Legal Holiday, with the same force and effect as if made on
such Maturity Date or Fundamental Change Purchase Date, as the case may be.



     Section 16.07 Governing Law. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     Section 16.08 No Recourse against Others. An incorporator, director, officer, employee,
Affiliate or shareholder of the Company or any Guarantor, solely by reason of this status, shall
not have any liability for any obligations of the Company or any Guarantor under this Indenture,
the Notes or the Subsidiary Guarantees, or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for the issue of the
Notes.



     Section 16.09 Successors. All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successors.



     Section 16.10 Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy is enough to
prove this Indenture. Delivery of an executed



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counterpart by facsimile shall be as effective as
delivery of a manually executed counterpart thereof.




     Section 16.11 [Reserved].



     Section 16.12 Table of Contents; Headings. The table of contents, cross-reference sheet
and headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.



     Section 16.13 Severability Clause. In case any provision in this Indenture 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 such provision shall be
ineffective only to the extent of such invalidity, illegality or unenforceability.



     Section 16.14 Calculations. Except as otherwise provided herein, the Company (or its
agents) will be responsible for making all calculations called for under this Indenture or the
Notes. The Company (or its agents) will make all such calculations in good faith and, absent
manifest error, its calculations will be final and binding on Holders. The Company (or its agents)
upon request will provide a schedule of its calculations to each of the Trustee and the Conversion
Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the
accuracy of such calculations without independent verification. The Trustee will deliver a copy of
such schedule to any Holder upon the written request of such Holder.



     Section 16.15 Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR
THE TRANSACTION CONTEMPLATED THEREBY.



     Section 16.16 Consent to Jurisdiction.



     (a) Each of the Company and the Guarantors hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any competent New York State court or
federal court of the United States sitting in the State and City of New York,
County of New York and Borough of Manhattan, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Indenture or the Notes, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such state court sitting in the State and City of New York, County of New York and
Borough of Manhattan or, to the extent permitted by law, in such federal court sitting in the State
and City of New York, County of New York and Borough of Manhattan.



     (b) Each of the Company and the Guarantors hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action proceeding arising out of or relating to
this Indenture or the Notes in any such New York State or federal court. Each of the parties



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hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.




     Section 16.17 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 or 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.



[Remainder of the page intentionally left blank]






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



	 	 	 	 	 
	 	COMPANY:



ENDEAVOUR INTERNATIONAL CORPORATION

 	 
	 	By:  	/s/  J. Michael Kirksey
 	 
	 	Name:  	 	J. Michael Kirksey 	 
	 	Title:  	 	Executive Vice President and Chief Financial Officer 	 
	 
	 	GUARANTORS:



ENDEAVOUR OPERATING CORPORATION

ENDEAVOUR ENERGY NEW VENTURES INC.

END MANAGEMENT COMPANY

 	 
	 	By:  	/s/  J. Michael Kirksey
 	 
	 	Name:  	 	J. Michael Kirksey 	 
	 	Title:  	 	Executive Vice President and Chief Financial Officer 	 
	 
	 	TRUSTEE:



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	/s/ Patrick Giordano
 	 
	 	Name:  	 	Patrick Giordano 	 
	 	Title:  	 	Vice President 	 



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SCHEDULE A

Share Price




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Effective	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Date	 	$14.24	 	$16.00	 	$18.00	 	$20.00	 	$25.00	 	$30.00	 	$35.00	 	$40.00	 	$45.00	 	$50.00	 	$60.00	 	$75.00	 	$100.00
	7/22/2011
	 	 	16.2056	 	 	 	13.4491	 	 	 	10.7281	 	 	 	8.7845	 	 	 	5.8587	 	 	 	4.3170	 	 	 	3.4091	 	 	 	2.8249	 	 	 	2.4210	 	 	 	2.1259	 	 	 	1.7216	 	 	 	1.3522	 	 	 	1.0047	 
	7/15/2012
	 	 	16.2056	 	 	 	13.1576	 	 	 	10.2863	 	 	 	8.2688	 	 	 	5.3179	 	 	 	3.8316	 	 	 	2.9901	 	 	 	2.4645	 	 	 	2.1088	 	 	 	1.8522	 	 	 	1.5034	 	 	 	1.1849	 	 	 	0.8830	 
	7/15/2013
	 	 	16.2056	 	 	 	12.6514	 	 	 	9.5921	 	 	 	7.4936	 	 	 	4.5508	 	 	 	3.1702	 	 	 	2.4355	 	 	 	1.9973	 	 	 	1.7091	 	 	 	1.5042	 	 	 	1.2271	 	 	 	0.9720	 	 	 	0.7267	 
	7/15/2014
	 	 	16.2056	 	 	 	11.8193	 	 	 	8.5047	 	 	 	6.3146	 	 	 	3.4628	 	 	 	2.2854	 	 	 	1.7253	 	 	 	1.4154	 	 	 	1.2186	 	 	 	1.0796	 	 	 	0.8891	 	 	 	0.7086	 	 	 	0.5311	 
	7/15/2015
	 	 	16.2056	 	 	 	10.4405	 	 	 	6.6975	 	 	 	4.4076	 	 	 	1.8967	 	 	 	1.1485	 	 	 	0.8752	 	 	 	0.7384	 	 	 	0.6494	 	 	 	0.5826	 	 	 	0.4849	 	 	 	0.3879	 	 	 	0.2909	 
	7/15/2016
	 	 	16.2056	 	 	 	8.4810	 	 	 	1.5366	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






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EXHIBIT A




[FORM OF RESTRICTED STOCK LEGEND]




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.



     THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND (2) AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) WHICH IS ONE YEAR 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 SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND
THE TRANSFER AGENT’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (B) OR (D)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER (IN THE
FORM AVAILABLE FROM THE COMPANY) IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER
AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.



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EXHIBIT B




[FORM
OF FREE TRANSFERABILITY CERTIFICATE]


Officers’ Certificate




     [NAME OF OFFICER], the [TITLE] of Endeavour International Corporation, a Nevada corporation
(the “Company”) and [NAME OF OFFICER], the [TITLE] of the Company do hereby certify, in connection
with the sale of $[PRINCIPAL AMOUNT] of the Company’s 5.5% Convertible Senior Notes due 2016 (the
“Notes”) pursuant to the terms of the Indenture, dated as of July 22, 2011 (as may be amended or
supplemented from time to time, the “Indenture”), by and among the Company, the guarantors on the
signature page thereto and Wells Fargo Bank, National Association (the “Trustee”), that:



     1. The undersigned are permitted to sign this “Officers’ Certificate” on behalf of the
Company, as the term “Officers’ Certificate” is defined in the Indenture.



     2. The undersigned have read, and thoroughly examined, the Indenture and the definitions
therein relating thereto.



     3. In the opinion of the undersigned, the undersigned have made such examination as is
necessary to enable the undersigned to express an informed opinion as to whether or not all
conditions precedent to the removal of the Restricted Notes Legend described herein as provided for
in the Indenture have been complied with.



     4. To the best knowledge of the undersigned, all conditions precedent described herein as
provided for in the Indenture have been complied with.



     5. The Notes have become Freely Tradable.



     In accordance with Section 3.08 of the Indenture, the Company hereby instructs you as follows:



     1. To take those actions necessary so that the Restricted Notes Legend and set forth on the
Restricted Global Notes shall be deemed removed from the Global Notes in accordance with the terms
and conditions of the Securities and as provided in the Indenture, without further action on the
part of the Holders.



     2. To take those actions necessary so that the restricted CUSIP number for the Notes shall be
removed from the Global Notes and replaced with an unrestricted CUSIP number, which unrestricted
CUSIP number shall be 29257M AE0, in accordance with the terms and conditions of the Global Notes
and as provided in the Indenture, without further action on the part of the Holders.



[Signature page follows.]






93









 








     IN WITNESS WHEREOF, we have signed this certificate as of [       ].



	 	 	 	 	 	 	 

	 	 	ENDEAVOUR INTERNATIONAL CORPORATION,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






94









 






ANNEX A




 




ENDEAVOUR INTERNATIONAL CORPORATION



and



the Guarantors named herein



 





5.5% SENIOR NOTES DUE 2016



 





FORM OF SUPPLEMENTAL INDENTURE



DATED AS OF __________, ______



 





WELLS FARGO BANK, NATIONAL ASSOCIATION,



As Trustee


 





 




95









 





     This SUPPLEMENTAL INDENTURE, dated as of ______________, ____ (this “Supplemental Indenture”)
is among Endeavour International Corporation, a Nevada corporation (the “Company”),
[______________] (the “Guaranteeing Subsidiary”), which is a subsidiary of the Company, each of the
existing Guarantors (as defined in the Indenture referred to below) and Wells Fargo Bank, National
Association, a national banking association, as Trustee.



RECITALS




     WHEREAS, the Company, the initial Guarantors and the Trustee entered into an Indenture, dated
as of July 22, 2011 (as heretofore amended, supplemented or otherwise modified, the “Indenture”),
pursuant to which the Company has issued $[ ] in aggregate Principal Amount of 5.5% Senior
Notes due 2016 (the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall become a Guarantor (as defined in the Indenture);



     WHEREAS, Section 14.01(iii) of the Indenture provides that the Company, the Guarantors and the
Trustee may amend or supplement the Indenture in order to add any additional Guarantor with respect
to the Notes, without the consent of the Holders of the Notes; and



     WHEREAS, all acts and things prescribed by the Indenture, by law and by the Certificate of
Incorporation and the Bylaws (or comparable constituent documents) of the Company, of the
Guarantors and of the Trustee necessary to make this Supplemental Indenture a valid instrument
legally binding on the Company, the Guarantors and the Trustee, in accordance with its terms, have
been duly done and performed;



     NOW, THEREFORE, to comply with the provisions of the Indenture and in consideration of the
above premises, the Company, the Guaranteeing Subsidiary, the other Guarantors and the Trustee
covenant and agree for the equal and proportionate benefit of the respective Holders of the Notes
as follows:


Section 1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings ascribed to them in the Indenture.



Section 2. Relation to Indenture. This Supplemental Indenture is supplemental to the
Indenture and does and shall be deemed to form a part of, and shall be construed in connection with
and as part of, the Indenture for any and all purposes.



Section 3. Effectiveness of Supplemental Indenture. This Supplemental Indenture shall
become effective immediately upon its execution and delivery by each of the Company, the
Guaranteeing Subsidiary, the other Guarantors and the Trustee.



Section 4. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees, by its
execution of this Supplemental Indenture, to be bound by the provisions of the Indenture applicable
to Guarantors to the extent provided for in Article 15 thereof.







96









 







Section 5. Ratification of Obligations. Except as specifically modified herein, the
Indenture and the Notes are in all respects ratified and confirmed (mutatis mutandis) and shall
remain in full force and effect in accordance with their terms.



Section 6. The Trustee. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by
reason of this Supplemental Indenture. This Supplemental Indenture is executed and accepted by the
Trustee subject to all the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made applicable to the
Trustee with respect hereto. The Trustee shall not be responsible for the recitals contained
herein, all of which recitals are made by the other parties to this Supplemental Indenture.



Section 7. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



Section 8. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of such executed copies together shall
represent the same agreement.




[Signatures on following pages]






97









 








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



	 	 	 	 	 
	 	Company



Endeavour International Corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Guaranteeing Subsidiary



[_______________________]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Existing Guarantors1



Trustee



Wells Fargo Bank, National Association, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	Insert signature blocks for each of the Guarantors existing at the time of execution of this Supplemental Indenture.






98