INDENTURE

Indenture Agreement

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MINDSPEED TECHNOLOGIES, INC | GLOBAL NOTE SHALL BE LIMITED | WELLS FARGO BANK, NA

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Title: INDENTURE
Governing Law: Delaware Date: 8/4/2008
Industry: Semiconductors Law Firm: Morrison Foerster Sector: Technology

Exhibit 4.1

INDENTURE

Between

MINDSPEED TECHNOLOGIES, INC.

and

WELLS FARGO BANK, N.A.,
as Trustee

6.50% CONVERTIBLE SENIOR NOTES DUE 2013

Dated as of August 1, 2008

CROSS-REFERENCE TABLE *

Trust Indenture Act Section		Indenture Section
310(a)(1)		5.11
(a)(2)		5.11
(a)(3)		n/a
(a)(4)		n/a
(a)(5)		5.11
(b)		5.3; 5.11
(c)		n/a
311(a)		5.12
(b)		5.12
(c)		n/a
312(a)		2.9
(b)		14.3
(c)		14.3
313(a)		5.7
(b)(1)		n/a
(b)(2)		n/a
(c)		5.7;14.2
(d)		5.7
314(a)(1), (2) and (3)		9.4
(a)(4)		9.5
(b)		n/a
(c)(1)		14.5
(c)(2)		14.5
(c)(3)		n/a
(d)		n/a
(e)		14.6
(f)		n/a
315(a)		5.2
(b)		5.6;14.2
(c)		5.1
(d)		5.1
(e)		4.14
316(a)(last sentence)		2.12
(a)(1)(A)		4.5
(a)(1)(B)		4.4
(a)(2)		n/a
(b)		4.7
(c)		n/a
317(a)(1)		4.8
(a)(2)		4.9
(b)		2.5
318(a)		14.1
(b)		n/a
(c)		14.l

“n/a” means not applicable.

*This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.

TABLE OF CONTENTS

			Page

ARTICLE 1	DEFINITIONS AND INCORPORATION BY REFERENCE		1

Section 1.1		Definitions	1

Section 1.2		Incorporation by Reference of Trust Indenture Act	13

Section 1.3		Rules of Construction	13

ARTICLE 2	THE NOTES		14

Section 2.1		Title and Terms	14

Section 2.2		Form of Notes	15

Section 2.3		Global Note Legend	16

Section 2.4		Execution, Authentication, Delivery and Dating of the Notes	16

Section 2.5		Registrar and Paying Agent	17

Section 2.6		Paying Agent to Hold Assets in Trust	18

Section 2.7		General Provisions Relating to Registration, Transfer and Exchange	18

Section 2.8		Book-Entry Provisions for the Global Notes	19

Section 2.9		Holder Lists	20

Section 2.10		Persons Deemed Owners	21

Section 2.11		Mutilated, Destroyed, Lost or Stolen Notes	21

Section 2.12		Treasury Notes	22

Section 2.13		Temporary Notes	22

Section 2.14		Cancellation	22

Section 2.15		CUSIP Numbers	22

Section 2.16		Defaulted Interest	23

Section 2.17		Issuance of Additional Notes	23

ARTICLE 3	DISCHARGE OF INDENTURE		23

Section 3.1		Discharge of Liability on Notes	23

Section 3.2		Repayment to the Company	24

ARTICLE 4	DEFAULTS AND REMEDIES		24

Section 4.1		Events of Default	24

Section 4.2		Acceleration of Maturity; Rescission and Annulment	26

Section 4.3		Other Remedies	27

Section 4.4		Waiver of Past Defaults	27

Section 4.5		Control by Majority	27

Section 4.6		Limitation on Suit	28

Section 4.7		Unconditional Rights of Holders to Receive Payment and to Convert	28

Section 4.8		Collection of Indebtedness and Suits for Enforcement by the Trustee	28

Section 4.9		Trustee May File Proofs of Claim	29

Section 4.10		Restoration of Rights and Remedies	30

Section 4.11		Rights and Remedies Cumulative	30

Section 4.12		Delay or Omission Not Waiver	30

Section 4.13		Priorities	30

Section 4.14		Undertaking for Costs	31

Section 4.15		Waiver of Stay or Extension Laws	31

Section 4.16		Payment for Consent, Waiver or Amendment	31

ARTICLE 5	THE TRUSTEE		32

Section 5.1		Certain Duties and Responsibilities	32

Section 5.2		Certain Rights of Trustee	33

Section 5.3		Individual Rights of Trustee	34

Section 5.4		Money Held in Trust	34

Section 5.5		Trustee’s Disclaimer	34

Section 5.6		Notice of Defaults	34

Section 5.7		Reports by Trustee to Holders	35

Section 5.8		Compensation and Indemnification	35

Section 5.9		Replacement of Trustee	36

Section 5.10		Successor Trustee by Merger, Etc	37

Section 5.11		Corporate Trustee Required; Eligibility	37

Section 5.12		Collection of Claims Against the Company	37

ARTICLE 6	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER, SALE, LEASE OR OTHER DISPOSITION		37

Section 6.1		Company May Consolidate, Etc., Only on Certain Terms	37

Section 6.2		Successor Corporation Substituted	38

ARTICLE 7	AMENDMENTS, SUPPLEMENTS AND WAIVERS		38

iii

Section 7.1		Without Consent of Holders of Notes	38

Section 7.2		With Consent of Holders of Notes	39

Section 7.3		Compliance with Trust Indenture Act	40

Section 7.4		Revocation of Consents and Effect of Consents or Votes	40

Section 7.5		Notation on or Exchange of Notes	40

Section 7.6		Trustee to Sign Amendment, Etc	41

Section 7.7		Effect of Amendment	41

ARTICLE 8	[INTENTIONALLY OMITTED]		41

ARTICLE 9	COVENANTS		41

Section 9.1		Payment of Principal, Repurchase Price and Interest	41

Section 9.2		Maintenance of Offices or Agencies	42

Section 9.3		Corporate Existence	42

Section 9.4		Reports	42

Section 9.5		Compliance Certificate	43

ARTICLE 10	[INTENTIONALLY OMITTED]		44

ARTICLE 11	PURCHASE AT THE OPTION OF A HOLDER		44

Section 11.1		Purchase Right	44

Section 11.2		Effect of Purchase Notice; Withdrawal	46

Section 11.3		Deposit of Put Purchase Price	47

Section 11.4		Notes Purchased in Part	47

Section 11.5		Covenant to Comply With Securities Laws Upon Purchase of Notes	47

Section 11.6		Repayment to the Company	48

ARTICLE 12	CONVERSION OF NOTES		48

Section 12.1		Conversion Right; Expiration of Conversion Right; Conversion Price	48

Section 12.2		Exercise of Conversion Right	51

Section 12.3		Fractions of Shares	52

Section 12.4		Adjustment of Conversion Price	52

Section 12.5		Consolidation or Merger of the Company	61

Section 12.6		Notice of Adjustments of Conversion Price	63

Section 12.7		Notice Prior to Certain Actions	63

Section 12.8		Company to Reserve Common Stock; Listing	64

Section 12.9		Common Stock to be Fully Paid and Nonassessable	65

Section 12.10		Taxes on Conversions	65

Section 12.11		Cancellation of Converted Notes	65

Section 12.12		Option to Satisfy Conversion Obligation with Cash, Common Stock or Combination Thereof	65

Section 12.13		Responsibility of Trustee for Conversion Provisions	69

Section 12.14		Withholding Taxes on Adjustments of the Conversion Price	69

Section 12.15		Limitations on Conversion	69

ARTICLE 13	[INTENTIONALLY OMITTED]		71

ARTICLE 14	OTHER PROVISIONS OF GENERAL APPLICATION		71

Section 14.1		Trust Indenture Act Controls	71

Section 14.2		Notices	71

Section 14.3		Communication by Holders with Other Holders	72

Section 14.4		Acts of Holders of Notes	72

Section 14.5		Certificate and Opinion as to Conditions Precedent	73

Section 14.6		Statements Required in Certificate or Opinion	74

Section 14.7		Effect of Headings and Table of Contents	74

Section 14.8		Successors and Assigns	74

Section 14.9		Separability Clause	74

Section 14.10		Benefits of Indenture	75

Section 14.11		Governing Law	75

Section 14.12		Counterparts	75

Section 14.13		Legal Holidays	75

Section 14.14		Recourse Against Others	75

Section 14.15		Tax Treatment	75

EXHIBITS

EXHIBIT A		Form of Note	A-1

EXHIBIT B		Form of Purchase Notice	B-1

EXHIBIT C		Form of Conversion Notice	C-1

INDENTURE, dated as of August 1, 2008 (this “ Indenture ”), between Mindspeed Technologies, Inc., a corporation duly organized and existing under the laws of the State of Delaware, having its principal office at 4000 MacArthur Boulevard, East Tower, Newport Beach, California 92660-3095 (the “ Company ”) and Wells Fargo Bank, N.A., a national banking association organized under the laws of the United States, as Trustee (the “ Trustee ”), having its corporate trust office at 707 Wilshire Boulevard, 17 ^th Floor, Los Angeles, California 90017.

RECITALS OF THE COMPANY

WHEREAS, pursuant to an Exchange Agreement dated as of July 30, 2008 (the “ Exchange Agreement ”) between the Company and certain holders of 3.75% Convertible Senior Notes due 2009 (the “ 3.75% Convertible Senior Notes ”) issued by the Company, such holders and the Company have agreed to exchange $15,000,000 of the 3.75% Convertible Senior Notes held by such holders into an issue of 6.50% Convertible Senior Notes due 2013 (the “ Initial Notes ”) issued by the Company on the terms, tenor, amount and other provisions hereinafter set forth, and, to provide therefor, the Company has duly authorized the execution and delivery of this Indenture; and

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

NOW, THEREFORE, for and in consideration of the premises and the exchange of 3.75% Convertible Senior Notes by the holders thereof for the Initial Notes, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:

ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.1 Definitions. For all purposes of this Indenture and the Notes, the following terms are defined as follows:

“ 120% Trading Price Exception ” has the meaning set forth in the definition of Fundamental Change.

“ 3.75% Convertible Senior Notes ” has the meaning ascribed to it in the first paragraph under the caption “Recitals of the Company”.

“ Act ”, when used with respect to any Holder, has the meaning set forth in Section 14.4(a).

“ Additional Common Stock ” has the meaning set forth in Section 12.1(b).

“ Additional Interest ” means the additional interest, if any, payable on the Notes pursuant to Section 9.4(c).

“ Additional Notes ” means any Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.2, 2.4 and 2.17.

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

“ Agent Members ” has the meaning set forth in Section 2.8(a).

“ Applicable Stock Price ” has the meaning set forth in Section 12.12(d).

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

“ Board of Directors ” means either the board of directors of the Company or any committee of the board of directors of the Company empowered to act for it with respect to this Indenture.

“ Board Resolution ” means a resolution duly adopted by the Board of Directors, a copy of which, certified by the Secretary or an Assistant Secretary of the Company to be in full force and effect on the date of such certification, shall have been delivered to the Trustee.

“ Business Day ” means, with respect to any Note, any day, other than a Saturday or Sunday, that is not a legal holiday or a day in which in The City of New York banking institutions are authorized by law or regulation to close.

“ Buy-In ” has the meaning set forth in Section 12.12(c).

“ Buy-In Price ” has the meaning set forth in Section 12.12(c).

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

“ Capital Stock ” means:

(a) in the case of a corporation, corporate stock;

(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

“ Cash Amount ” has the meaning set forth in Section 12.12(a).

“ Closing Date ” means August 1, 2008.

“ Closing Time ” means the time at which the closing of the exchange of the Notes is complete pursuant to the Exchange Agreement on the Closing Date.

“ Commission ” means the Securities and Exchange Commission or any successor agency.

“ Common Stock ” means any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. However, subject to the provisions of Sections 12.5 and 12.7 hereof, shares issuable on conversion of the Notes shall include only shares of the class designated as Common Stock, $0.01 par value per share, of the Company at the date of execution of this Indenture or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which are not subject to redemption by the Company, provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

“ Company ” means the corporation 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 ” means a written order signed in the name of the Company by any Officer.

“ Continuing Director ” means, as of any date of determination, any member of the Board of Directors who:

(a) was a member of the Board of Directors of the Company on the date hereof; or

(b) was nominated for election, appointed or elected to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of the new director’s nomination, appointment or election, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the Company’s entire Board of Directors in which such individual is named as a nominee for director.

“ Conversion Agent ” means any Person authorized by the Company to convert Notes in accordance with Article 12. Initially, the Conversion Agent shall be Wells Fargo Bank, N.A. The Company may change the Conversion Agent, but in no event will the Conversion Agent be an affiliate of the Company.

“ Conversion Date ” means, with respect to any Holder, the date on which such Holder has satisfied all the requirements to convert its Notes pursuant to Section 12.2.

“ Conversion Obligation ” has the meaning set forth in Section 12.12(a).

“ Conversion Period ” has the meaning set forth in Section 12.12(d).

“ Conversion Price ” has the meaning set forth in Section 12.1(a).

“ Conversion Rate ”, at any time, shall equal $1,000 divided by the Conversion Price at such time, rounded to three decimal places (rounded up if the fourth decimal place thereof is 5 or more and otherwise rounded down).

“ Conversion Record Date ” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any shares of any class of Capital Stock of the Company or evidences of its Indebtedness, cash or other assets, or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of shares of any class of Capital Stock of the Company or evidences of its Indebtedness, cash or other assets, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

“ Conversion Retraction Period ” has the meaning set forth in Section 12.12(a).

“ Conversion Value ” has the meaning set forth in Section 12.12(d).

“ Corporate Trust Office ” means, for purposes of presentation or surrender of Notes for payment, registration, transfer, exchange or conversion or for service of notices or demands upon the Company or for any other purpose of this Indenture, the office or agent of the Trustee located at 707 Wilshire Boulevard, 17 ^th Floor, Los Angeles, California 90017.

“ corporation ” means any corporation, association, limited liability company, company and business trust.

“ Current Market Price ” has the meaning set forth in Section 12.4(g).

“ Custodian ” means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.

“ Default ” means an event which is, or after notice or lapse of time or both would constitute, an Event of Default.

“ Defaulted Payment ” has the meaning set forth in Section 4.1(b).

“ Defaulted Interest ” has the meaning set forth in Section 2.16.

“ Depositary ” means The Depository Trust Company, its nominees and their respective successors.

“ distributed assets ” has the meaning set forth in Section 12.4(d).

“ Dollar ” or “ $ ” means a U.S. dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts.

“ Effective Date ” has the meaning set forth in Section 12.1(b).

“ Event of Default ” has the meaning set forth in Section 4.1.

“ Ex-Dividend Time ” means, with respect to any issuance or distribution on shares of Common Stock, the first date on which the shares of Common Stock trade regular way on the principal securities market on which the shares of Common Stock are then traded without the right to receive such issuance or distribution.

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

“ Exchange Agreement ” has the meaning ascribed to it in the first paragraph under the caption “Recitals of the Company”.

“ Expiration Time ” has the meaning set forth in Section 12.4(f).

“ Fair Market Value ” means, if there is a current market for the asset, debt or transaction in question, the amount that a willing buyer would pay a willing seller in an arm’s length transaction or, in the absence of a current market for such asset, debt or transaction, the amount determined in good faith by the Board of Directors that represents its determination of the fair market value of the asset.

“ Financial Statement Delivery Default ” means any failure to deliver a report required by Section 9.4(a) or (b) by the 180 ^th day after the Required Delivery Date.

“ Fundamental Change ” means the occurrence of any of the following events after the Closing Date:

(a) the acquisition by any Person, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of beneficial ownership of shares of the Capital Stock of the Company entitling that Person to exercise 50% or more of the total Voting Stock of the Company, other than any acquisition by the Company, any of its subsidiaries or any of their employee benefit plans; or

(b) the first day on which a majority of the members of the board of directors of the Company does not consist of Continuing Directors; or

(c) the Company consolidates or merges with or into any other Person, any merger of another Person into the Company, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the Company’s properties and assets to another Person, other than: (A) any transaction: (1) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s Capital Stock; and (2) pursuant to which the holders of 50% or more of the total Voting Stock of the Company immediately prior to the transaction have the right to exercise, directly or indirectly, 50% or more of the total Voting Stock of the continuing or surviving Person immediately after giving effect to such transaction; and (B) any merger primarily for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock, if at all, solely into shares of common stock of the surviving entity; or

(d) the termination of trading of the Common Stock, which shall be deemed to have occurred if the Common Stock or other common stock into which the Notes are convertible is not listed for trading on a U.S. national securities exchange or any similar U.S. system of automated dissemination of quotations of securities prices or traded in over-the-counter securities markets, and no American Depositary Shares or similar instruments for such common stock are so listed or approved for listing in the United States.

Notwithstanding the foregoing, the Company shall not be required to purchase the Notes of the Holders upon a Fundamental Change pursuant to Section 11.1 (and a Fundamental Change shall be deemed not to have occurred) if:

(I) the Market Price per share of Common Stock for any five Trading Days within:

(1) the period of 10 consecutive Trading Days ending immediately after the later of the Fundamental Change or the public announcement of the Fundamental Change, in the case of a Fundamental Change under clause (a) or (b) of the definition of “Fundamental Change” above, or

(2) the period of 10 consecutive Trading Days ending immediately before the Fundamental Change, in the case of a Fundamental Change under clause (c) or (d) of the definition of “Fundamental Change” above,

equals or exceeds 120% of the Conversion Price of the Notes in effect on each of those five Trading Days (the “ 120% Trading Price Exception ”); or

(II) more than 90% of the consideration in the transaction or transactions (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) which otherwise would constitute a Fundamental Change under clause (a), (b) or (c) above consists of shares of common stock, depositary receipts or other certificates representing common equity interests traded or to be traded immediately following such transaction on a national securities exchange, and, as a result of the transaction or transactions, the Notes become convertible solely into such Common Stock, depositary receipts or other certificates representing common equity interests (and any rights attached thereto).

For the purposes of this definition (x) whether a Person is a “beneficial owner” shall be determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act and (y) the term “Person” includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

“ GAAP ” has the meaning set forth in Section 1.3(b).

“ Global Note ” has the meaning set forth in Section 2.2(a).

“ Group ” has the same meaning as that used for the purposes of Section 13 under the Exchange Act.

“ 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 (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

“ Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person incurred in the normal course of business and not for speculative purposes under:

(a) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(b) other agreements or arrangements designed to manage interest rates or interest rate risk; and

(c) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

“ Holder ”, when used with respect to any Note, including any Global Note, means the Person in whose name the Note is registered in the Register.

“ Holder Adjustable Conversion Limitation ” has the meaning set forth in Section 12.15(a).

“ Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

(a) in respect of borrowed money;

(b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

(d) representing Capital Lease Obligations;

(e) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed; or

(f) representing any Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes 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 supplemental indentures entered into pursuant to the applicable provisions hereof.

“ Initial Notes ” has the meaning ascribed to it in the first paragraph under the caption “Recitals of the Company”.

“ Interest ” means, with respect to any Note, the interest payable on such Note based upon the Interest Rate and, if applicable, any Defaulted Interest. For the avoidance of doubt, references to “Interest” herein shall be deemed to also include Additional Interest, if any, regardless of whether such interest is specifically referenced.

“ Interest Payment Date ” means each February 1 and August 1, provided, however, that, if any such date is not a Business Day, the Interest Payment Date shall be the next succeeding Business Day, and no additional interest shall accrue.

“ Interest Rate ” has the meaning set forth in Section 2.1(c).

“ Majority Owned ” means having “beneficial ownership” (as defined in Rule 13(d)(3) under the Exchange Act) of more than 50% of the total Voting Stock of an entity.

“ Majority Owner ” has the correlative meaning.

“ Market Price ” of a security on any date of determination means:

(a) the closing sale price (or, if no closing sale price is reported, the last reported sale price) of such security (regular way) on The Nasdaq Global Market on such date;

(b) if such security is not listed for trading on The Nasdaq Global Market on any such date, the closing sale price as reported in the composite transactions for the principal U.S. securities exchange on which such security is listed;

(c) if such security is not so reported, the last price quoted by Interactive Data Corporation for such security on such date or, if Interactive Data Corporation is not quoting such price, a similar quotation service selected by the Company;

(d) if such security is not so quoted, the average of the mid-point of the last bid and ask prices for such security on such date from at least two dealers recognized as market-makers for such security selected by the Company for this purpose; or

(e) if such security is not so quoted, the average of the last bid and ask prices for such security on such date from a dealer engaged in the trading of such securities selected by the Company for this purpose.

“ Maturity ” means the date on which the Principal with respect to any Outstanding Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by acceleration, conversion, exercise of a purchase right or otherwise.

“ Nasdaq Global Market ” means the National Association of Securities Dealers Automated Quotation Global Market or any successor national securities exchange or automated over-the-counter trading market in the United States.

“ Notes ” means the Initial Notes and any Additional Notes. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture, except that any Additional Notes that are Restricted Notes may contain certain redemption provisions not applicable to the Initial Notes, as contemplated by Section 2.14. Unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

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

“ Officers’ Certificate ” means, with respect to the Company, a certificate signed by both (1) the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (2) so long as not the same as the officer signing pursuant to clause (1), the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and delivered to the Trustee.

“ Opinion of Counsel ” means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and in form and substance acceptable to the Trustee, which acceptance shall not be unreasonably withheld.

“ Outstanding ”, when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except Notes:

(i) previously canceled by the Trustee or delivered to the Trustee for cancellation; and

(ii) which have been paid in exchange for or in lieu of other Notes which have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;

provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Notes have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, Notes held for the account of the Company or of any of its Affiliates shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in making such a determination or relying upon any such consent or vote, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.

“ Paying Agent ” has the meaning set forth in Section 2.5.

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

“ Physical Notes ” means Notes issued in definitive, fully registered form without interest coupons, substantially in the form of Exhibit A hereto, with the applicable legends as provided in Section 2.3.

“ Place of Conversion ” means any city in which any Conversion Agent is located.

“ Place of Payment ” means any city in which any Paying Agent is located.

“ Predecessor Note ” of any particular Note, means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.11 in

exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.

“ Principal ” means, with respect to any Outstanding Note, the principal amount of that Note, including the Repurchase Price, if applicable, payable with respect to that Note.

“ Purchase Date ” has the meaning set forth in Section 11.1(a).

“ Purchase Notice ” has the meaning set forth in Section 11.1(c).

“ Purchase Rights ” has the meaning set forth in Section 11.1(a).

“ Purchased Shares ” has the meaning set forth in Section 12.4(f).

“ Put Purchase Price ” has the meaning set forth in Section 11.1(a).

“ Reference Period ” has the meaning set forth in Section 12.4(d).

“ Register ” has the meaning set forth in Section 2.5.

“ Registrar ” has the meaning set forth in Section 2.5.

“ Regular Record Date ” for the Interest payable on the Notes means the January 15 and the July 15 (whether or not a Business Day), as applicable, next preceding the corresponding Interest Payment Date.

“ Required Delivery Date ” means the date the Company is required to deliver to the Trustee Forms 10-K and 10-Q or reports containing substantially the same information pursuant to Section 9.4(a) or (b).

“ Responsible Officer ”, when used with respect to the Trustee, means any officer of the Trustee, including any vice president, any assistant vice president, any treasurer, any assistant treasurer, any trust officer, or any other officer of the Trustee having direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

“ Rights Agreement ” means that certain Rights Agreement dated as of June 26, 2003, by and between the Company and Mellon Investor Services, LLC , as rights agent thereunder, as amended, modified, supplemented or restated from time to time, including any comparable agreement to which any Person that is a successor to the Company under Article 6 is a party.

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

“ Settlement Notice Period ” has the meaning set forth in Section 12.12(a).

“ Share Delivery Date ” means the later of (i) the date specified in the third paragraph of Section 12.12(a), and (ii) the Conversion Date.

“ Significant Subsidiary ” has the meaning assigned to it under Rule 405 of the Securities Act.

“ Stated Maturity ” has the meaning set forth in Section 2.1(b).

“ Stock Price ” has the meaning set forth in Section 12.1(b).

“ Subsidiary ” means, with respect to any specified Person:

(a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

(b) any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

“ TIA ” means the Trust Indenture Act of 1939, as amended (15 U.S. Code Section 77aaa-77bbbb), as in effect on the date of this Indenture; provided, however, that in the event the TIA is amended after such date, “TIA” means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.

“ Trading Day ” means:

(a) if the applicable security is listed or admitted for trading on The Nasdaq Global Market or The Nasdaq Capital Market, a day on which The Nasdaq Global Market or The Nasdaq Capital Market, as applicable, is open for business;

(b) if that security is not so listed or admitted for trading on The Nasdaq Global Market or The Nasdaq Capital Market, a day on which the principal U.S. securities exchange on which the securities are listed is open for business; or

(c) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

“ Trigger Event ” has the meaning set forth in Section 12.4(d).

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

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

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

Section 1.2 Incorporation by Reference of Trust Indenture Act.

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

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

“ indenture securities ” means the Notes;

“ indenture security holder ” means a Holder;

“ indenture to be qualified ” means this Indenture;

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

“ obligor ” on the Notes means the Company and any other obligor on the indenture securities.

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

Section 1.3 Rules of Construction.

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

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

(b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States prevailing at the time of any relevant computation hereunder (“ GAAP ”);

(c) 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; and

(d) all references to section and article numbers in this Indenture shall refer to sections and articles hereof, unless otherwise specified.

ARTICLE 2

THE NOTES

Section 2.1 Title and Terms.

(a) The Notes shall be designated as the “ 6.50% Convertible Senior Notes due 2013 ” of the Company. The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is limited to $46,000,000 except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of other Notes pursuant to Sections 2.7, 2.8, 7.5, 11.1 or 12.2 hereof. The Notes shall be issuable in denominations of $1,000 or integral multiples thereof.

(b) The Notes shall mature on August 1, 2013 (the “ Stated Maturity ”).

(c) The Notes shall bear Interest from the date of their original issuance until the principal amount thereof is paid or made available for payment, or until such date on which the Notes are converted or purchased as provided herein at a rate of 6.50% per annum (including the Default Rate, if applicable, the “ Interest Rate ”). Interest shall be payable semi-annually, in arrears, on each Interest Payment Date.

(d) Interest on the Notes shall be computed (i) for any full semi-annual period for which a particular Interest Rate is applicable, on the basis of a 360-day year comprised of twelve 30-day months and (ii) for any period for which a particular Interest Rate is applicable for less than a full semi-annual period for which Interest is calculated, on the basis of a 30-day month and, for such periods of less than a month, the actual number of days elapsed over a 30-day month.

(e) Interest shall be due and payable on a Note as follows:

(i) A registered Holder as of the close of business on a Regular Record Date shall be entitled to receive and shall receive (except as otherwise indicated in this Section 2.1(e)), accrued and unpaid Interest on such Note from the preceding Interest Payment Date (or such earlier date on which Interest was last paid) to the day prior to the Interest Payment Date next succeeding such Regular Record Date.

(ii) In the event that a Note becomes subject to purchase pursuant to Article 11, a Holder who exercises a Purchase Right with respect to such Note shall be entitled to receive and shall receive accrued and unpaid Interest on such Note from the preceding Interest Payment Date (or such earlier date to which Interest was last paid) to, but excluding the applicable Purchase Date for such Note, which amount shall be included in the applicable Repurchase Price thereof pursuant to Article 11.

(iii) In the event that a Note is converted pursuant to Article 12, the Holder who converts such Note after a Regular Record Date but prior to the corresponding Interest Payment Date shall not be entitled to receive accrued and unpaid Interest on such Note from the preceding Interest Payment Date until the Conversion Date, such amounts being deemed to have been paid by receipt of shares of Common Stock in full rather than canceled, extinguished or forfeited. As a result, a Holder which converts a Note after a Regular Record Date but prior to the next succeeding Interest Payment Date will receive accrued and unpaid Interest on such Note for such period on such Interest Payment Date but will be required to remit to the Company an amount equal to that Interest at the time such Holder surrenders the Note for conversion pursuant to Article 12.

(f) Payment of any Principal or Interest, and Additional Interest, if any (in each case, to the extent paid in cash), on Global Notes shall be payable by the Company to the Depositary in immediately available funds.

(g) Payment of any Principal on Physical Notes shall be made at the office or agency of the Company maintained for such purpose, initially the Corporate Trust Office of the Trustee. Interest and Additional Interest on Physical Notes will be payable by (i) a U.S. Dollar check drawn on a U.S. bank mailed to the address of the Person entitled thereto as such address shall appear in the Register, or (ii) upon application to the Registrar not later than the relevant Regular Record Date by a Holder of an aggregate Principal amount of Notes in excess of $5,000,000, wire transfer in immediately available funds, which application shall remain in effect until the Holder notifies, in writing, the Registrar to the contrary.

(h) The Notes shall be purchased by the Company at the option of Holders as provided in and subject to Article 11.

(i) The Notes shall be convertible at the option of the Holders as provided in and subject to Article 12.

Section 2.2 Form of Notes.

(a) Except as otherwise provided pursuant to this Section 2.2, the Notes are issuable in fully registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000 above that amount with any applicable legend as provided for in Section 2.3 and in the form of one or more permanent global securities, except as provided herein (each a “ Global Note ” and, collectively, the “ Global Notes ”), the form of which is contained in Exhibit A hereto. The Notes shall not be issuable in bearer form. The terms and provisions contained in the form of Note shall constitute, and are hereby expressly made, a part of this Indenture and to the extent applicable, the Company, and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

(b) The Initial Notes are being exchanged by the Company for certain 3.75% Convertible Senior Notes pursuant to the Exchange Agreement. Additional Notes shall be exchanged by the Company for 3.75% Convertible Senior Notes pursuant to an agreement between the Company and the holder(s) of such notes being exchanged. Notes shall be issued

initially in the form of one or more permanent global Notes in fully registered form without interest coupons, substantially in the form of Exhibit A hereto, with the applicable legend as provided in Section 2.3. Each Global Note shall be duly executed by the Company and authenticated and delivered by the Trustee, and shall be registered in the name of the Depositary or its nominee and retained by the Trustee, as custodian. 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, and of the Depositary or its nominee, as hereinafter provided.

(c) Physical Notes may not be exchanged for interests in a Global Note. Physical Notes shall be duly executed by the Company and authenticated and delivered by the Trustee.

Section 2.3 Global Note Legend.

Each Global Note shall bear the following legend on the face thereof:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

Section 2.4 Execution, Authentication, Delivery and Dating of the Notes.

(a) One Officer shall execute the Notes on behalf of the Company by manual or facsimile signature. Notes bearing the manual or facsimile signatures of individuals who were at the time of the execution of the Notes 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 authentication of such Notes.

(b) 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, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes as provided in this Indenture and not otherwise. 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 or on behalf of 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. The Trustee may appoint an authenticating agent or agents reasonably acceptable to the Company with respect to the Notes. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.

(c) Each Note shall be dated the date of its authentication. The Trustee shall authenticate and deliver Initial Notes for original issue in an aggregate principal amount of $15,000,000 upon one or more Company Orders without any further action by the Company. The Trustee shall authenticate and deliver Additional Notes from time to time for original issue in an aggregate principal amount of up to $31,000,000 upon one or more Company Orders without any further action by the Company.

Section 2.5 Registrar and Paying Agent.

The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Notes may be presented for payment (the “ Paying Agent ”). The Registrar shall keep a register of the Notes (the “ Register ”) and of their transfer and exchange. The Company may appoint one or more co-Registrars and one or more additional Paying Agents for the Notes. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any additional registrar. The Company may change any Paying Agent or Registrar without prior notice to any Holder.

The Company will cause each Paying Agent (other than the Trustee) to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

(a) hold all sums of money or Common Stock held by it for the payment of any amounts due and payable in respect of the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in this Indenture;

(b) give the Trustee notice of any Default by the Company in the making of any such payment; and

(c) at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Company shall give prompt written notice to the Trustee of the name and address of any Paying Agent who is not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.

The Company hereby initially appoints the Trustee, as Registrar and Paying Agent for the Notes.

Section 2.6 Paying Agent to Hold Assets in Trust.

Prior to 11:00 a.m., New York City time, on each due date for any payments in respect of any Note, the Company shall deposit a sum of money in immediately available funds sufficient to make such payments when so becoming due. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further liability for the money so paid over to the Trustee.

If the Company shall act as a Paying Agent, it shall, prior to or on each such due date, segregate and hold in trust for the benefit of the Holders a sum sufficient with monies held by all other Paying Agents, to pay such amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as provided in this Indenture. Upon any bankruptcy or reorganization of the Company, the Trustee shall act as Paying Agent.

Section 2.7 General Provisions Relating to Registration, Transfer and Exchange.

The Notes are issuable only in registered form. A Holder may transfer a Note only by written application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration of the transfer by the Registrar in the Register. Furthermore, any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by the Holder of such Global Note (or its agent) and that ownership of a beneficial interest in the Global Note shall be required to be reflected in a book-entry.

When Notes are presented to the Registrar with a request to register the transfer or to exchange them for an equal principal amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if the requirements hereunder for such transactions are met (including that such Notes are duly endorsed or accompanied by a written instrument of transfer duly executed by the Holder thereof or by an attorney who is authorized in writing to act on behalf of the Holder). Subject to Section 2.4, to permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange of the Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection

therewith (other than any such transfer taxes or other similar governmental charge payable upon exchanges pursuant to Sections 2.13 or 7.5).

Neither the Company nor the Registrar shall be required to exchange or register a transfer of any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion.

The Trustee shall 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 Agent Members 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.

Section 2.8 Book-Entry Provisions for the Global Notes.

(a) The Global Notes initially shall:

(i) be registered in the name of the Depositary; and

(ii) be delivered to the Trustee as custodian for such Depositary, for credit to the accounts of the members of, and participants in, the Depositary (the “ Agent Members ”) holding the Notes evidenced thereby.

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

(c) The registered Holder of a Global Note may grant proxies and otherwise authorize any 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.

(d) A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary, and no such transfer to any such other Person may be registered. Beneficial interests in a Global Note may be transferred in accordance with the rules and procedures of the Depositary.

(e) If at any time:

(i) the Depositary notifies the Company in writing that it is no longer willing or able to continue to act as Depositary for the Global Notes, or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary for the Global Notes is not appointed by the Company within 90 days of such notice or cessation;

(ii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Physical Notes under this Indenture in exchange for all or any part of the Notes represented by a Global Note or Global Notes; or

(iii) an Event of Default has occurred and is continuing and the Registrar has received a request from the Depositary for the issuance of Physical Notes in exchange for such Global Note or Global Notes,

then the Depositary shall surrender such Global Note or Global Notes to the Trustee for cancellation and the Company shall execute, and the Trustee, upon receipt of an Officers’ Certificate and Company Order for the authentication and delivery of Notes, shall authenticate and deliver in exchange for such Global Note or Global Notes, Physical Notes in an aggregate principal amount equal to the aggregate principal amount of such Global Note or Global Notes. Such Physical Notes shall be registered in such names as the Depositary shall identify in writing as the beneficial owners of the Notes represented by such Global Note or Global Notes (or any nominee thereof).

(f) Notwithstanding the foregoing, in connection with any transfer of beneficial interests in a Global Note to the beneficial owners thereof pursuant to Section 2.8(d) hereof, the Registrar shall reflect on its books and records, and the custodian shall reflect on its books and records and the schedule to the Global Note, the date and a decrease in the aggregate principal amount of such Global Note in an amount equal to the aggregate principal amount of the beneficial interest in such Global Note to be transferred.

(g) The Registrar shall retain copies of all certifications, letters, notices and other written communications received pursuant to this Section 2.8 in accordance with its customary procedures for the retention of records relating to the transfer of securities. The Company shall have the right to inspect and make copies of all such certifications, letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

Section 2.9 Holder Lists.

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and shall otherwise comply with Section 312(a) of the TIA. If the Trustee is not the Registrar, the Company shall furnish to the Trustee prior to or on each Interest Payment Date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders relating to such Interest Payment Date or request, as applicable.

Section 2.10 Persons Deemed Owners.

Prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of the Note or the payment of any Repurchase Price in respect thereof and any Interest and Additional Interest thereon, for any purpose under this Indenture, whether or not such Note is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

Section 2.11 Mutilated, Destroyed, Lost or 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 with the same aggregate principal amount and bearing a number not contemporaneously outstanding.

If there is delivered to the Company and the Trustee:

(a) evidence to their satisfaction of the destruction, loss or theft of any Note, and

(b) 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 actual notice to the Company or the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and, upon request, 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, but subject to any conversion rights, may, instead of issuing a new Note, pay such Note, upon satisfaction of the condition set forth in the preceding paragraph.

Upon the issuance of any new Note under this Section, the Company may require the payment 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 2.11 in lieu of any destroyed, lost or stolen Note shall constitute an original contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and such new Note 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 2.11 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.

Section 2.12 Treasury Notes.

In determining whether the Holders of the requisite principal amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only such Notes of which the Trustee has received written notice and are so owned shall be so disregarded.

Section 2.13 Temporary Notes.

Pending the preparation of Notes in definitive form, the Company may execute and the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in minimum denominations of $1,000 and integral multiples of $1,000 above that amount in accordance with Section 2.2 of this Indenture, and substantially in the form of the Notes in definitive form but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the Company and authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Notes in definitive form. Without unreasonable delay, the Company will execute and deliver to the Trustee Notes in definitive form (other than in the case of Notes in global form) and thereupon any or all temporary Notes (other than any such Notes in global form) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 9.2 and the Trustee shall authenticate and deliver in exchange for such temporary Notes an equal principal amount of Notes in definitive form. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Notes in definitive form authenticated and delivered hereunder.

Section 2.14 Cancellation.

All Notes surrendered for payment, purchase, conversion, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Notes so delivered shall be canceled promptly by the Trustee, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. Upon written instructions of the Company, the Trustee shall dispose of canceled Notes in accordance with its procedures for the disposition of cancelled securities in effect as of the date of such disposition. If the Company shall acquire any of the Notes, such acquisition shall not operate as satisfaction of the Indebtedness represented by such Notes unless the same are delivered to the Trustee for cancellation.

Section 2.15 CUSIP Numbers.

The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if CUSIP numbers are used, then the Trustee shall use CUSIP numbers in notices as a

convenience to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee of any change in the CUSIP numbers.

Section 2.16 Defaulted Interest.

If the Company fails to make a payment of Principal of or Interest on any Note when due and payable, it shall pay Interest and Additional Interest on such amounts (to the extent lawful), which shall be calculated using the Interest Rate (such amounts, the “ Defaulted Interest ”). It may elect to pay such Defaulted Interest, plus any other overdue Interest payable on it, to the Persons who are Holders on which the Interest is due on a subsequent special record date. The Company shall notify the Trustee in writing of the amount of Defaulted Interest the Company proposes to pay on each such Note. The Company shall fix any such special record date and payment date for such payment. At least 15 days before any such special record date, the Company shall mail to Holders affected thereby a notice that states the special record date, the payment date and amount to be paid.

Section 2.17 Issuance of Additional Notes.

The Company shall be entitled from time to time without the consent of any Holder, to issue Additional Notes under this Indenture with identical terms as the Initial Notes issued on the Closing Date other than with respect to (i) the date of issuance, (ii) the issue price, (iii) the amount of interest payable on the first interest payment date, and (iv) any changes necessary to conform to and ensure compliance with the Securities Act (or other applicable securities laws). The Initial Notes issued on the Closing Date and any Additional Notes shall be treated as a single class for all purposes under this Indenture.

With respect to any Additional Notes, the Company shall set forth in an Officers’ Certificate prepared pursuant to a resolution of the Board of Directors of the Company, a copy of which shall be delivered to the Trustee, the following information:

(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture; and

(b) the issue price, the issue date and the CUSIP number of such Additional Notes; provided , however , that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Internal Revenue Code of 1986, as amended.

ARTICLE 3

DISCHARGE OF INDENTURE

Section 3.1 Discharge of Liability on Notes.

When (a) the Company delivers to the Trustee all Outstanding Notes (other than Notes replaced pursuant to Section 2.11) for cancellation, (b) all Outstanding Notes have become due

and payable at their Stated Maturity or all Outstanding Notes converted and the Company deposits with the Trustee cash and, in the event of possible conversions pursuant to Article 12, Common Stock, sufficient to pay all amounts due and owing on, and to satisfy all other obligations of the Company with respect to, all Outstanding Notes on or before the Stated Maturity (other than Notes replaced pursuant to Section 2.11) or (c) when no Notes are Outstanding, and if in any such case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 5.8, cease to be of further effect. The Trustee shall join in the execution of a document prepared by the Company acknowledging satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and Opinion of Counsel and at the cost and expense of the Company.

Section 3.2 Repayment to the Company.

The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Notes that remains unclaimed for two years, subject to applicable unclaimed property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person and the Trustee and the Paying Agent shall have no further liability to the Holders with respect to such money or securities for that period commencing after the return thereof.

ARTICLE 4

DEFAULTS AND REMEDIES

Section 4.1 Events of Default.

An “ 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) the Company fails to convert Notes into shares of its Common Stock and/or cash consistent with the settlement elections made by the Company pursuant to Section 12.12 or as otherwise may be required pursuant to Section 12.1(b) and such failure continues for 10 days after written notice of default is given to the Company by the Trustee or to the Company and the Trustee by the Holder of such Note;

(b) the Company defaults in the payment of the Principal amount of any Outstanding Note (a “ Defaulted Payment ”) when the same becomes due and payable at its Stated Maturity, upon exercise of a Purchase Right or otherwise;

(c) the Company defaults in the payment of Interest or Additional Interest, if any, on any Note when it becomes due and payable and such default continues for a period of 30 days;

(d) the Company fails to provide notice of the occurrence of a Fundamental Change on a timely basis;

(e) the Company fails to perform or observe any other term, covenant or agreement contained in the Notes or this Indenture other than the covenants and agreements set forth in Section 9.4, and the default continues for a period of 60 days after written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Notes;

(f) a default occurs under any Indebtedness for money borrowed by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, the aggregate outstanding principal amount of which is in an amount in excess of $5 million, for a period of 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of the Outstanding Notes, which default (i) is caused by a failure to pay when due principal or interest on such Indebtedness by the end of the applicable grace period, if any, unless such Indebtedness is discharged or (ii) results in the acceleration of such Indebtedness because of a default with respect to such Indebtedness without such Indebtedness having been discharged or such non-payment or acceleration having been cured, waived, rescinded or annulled;

(g) any of the following occurs in respect of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary: (i) the entry by a court having jurisdiction in the premises of a decree or order for relief, in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law; or (ii) the entry by a court having jurisdiction in the premises of a decree or order adjudging such Person or Persons a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of such Person or Persons under any applicable U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of such Person or Persons or of any substantial part of its or their property, or ordering the winding up or liquidation of its or their affairs; or

(h) the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, takes any of the following actions: (i) commences a voluntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law; (ii) consents to the entry of a decree or order for relief in respect of itself in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it of a petition or answer or consent seeking reorganization or relief under any applicable U.S. federal or state law in the context of a bankruptcy, insolvency or reorganization proceeding; (iii) consents to the filing of a petition described in clause (ii) above or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of such Person or Persons or of any substantial part of its or their property; (iv) the making of an assignment for the benefit of creditors; (v) the admission in writing by such Person or Persons of its inability to pay its debts generally as they

become due; or (vi) the taking of corporate action by such Person or Persons expressly in furtherance of any action described in clause (i) through (v) above.

A Default under clause (e) or (f) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% of the principal amount of the Notes at the time Outstanding notify the Company and the Trustee, of the Default and the Company does not cure such Default (and such Default is not waived) within the time specified in clause (e) or (f) above after actual receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default”.

Section 4.2 Acceleration of Maturity; Rescission and Annulment.

If an Event of Default with respect to Outstanding Notes (other than an Event of Default specified in Section 4.1(g) or 4.1(h) hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes, by written notice to the Company and the Trustee, may declare due and payable 100% of the principal amount of all Outstanding Notes, plus any accrued and unpaid Interest and Additional Interest, if any, to the date of payment. Upon a declaration of acceleration, such Principal amount, and accrued and unpaid Interest and Additional Interest, if any, to the date of payment shall be immediately due and payable.

If an Event of Default specified in Section 4.1(g) and 4.1(h) occurs, the Principal and accrued and unpaid Interest and Additional Interest, if any, on the Outstanding Notes shall become and be immediately due and payable, without any declaration or other act on the part of the Trustee or any Holder.

The Holders of not less than a majority of the principal amount of the Outstanding Notes, may, through notice to the Trustee on behalf of the Holders of all of the Notes, rescind and annul an acceleration and its consequences (including waiver of any defaults) if:

(a) all existing Events of Default, other than the nonpayment of a Defaulted Payment on the Notes which has become due solely because of the acceleration, have been remedied, cured or waived, and

(b) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction;

provided, however, that in the event such declaration of acceleration has been made based on the existence of an Event of Default under Section 4.1(f) and the default with respect to Indebtedness for money borrowed which gave rise to such Event of Default has been remedied, cured or waived, then, without any further action by the Holders, such declaration of acceleration shall be rescinded automatically and the consequences of such declaration shall be annulled. No such rescission or annulment shall affect any subsequent Default or impair any right consequent thereon.

The sole remedy of the Holders for any failure by the Company to comply with the requirements of Section 9.4 shall be the right to receive Additional Interest pursuant to Section 9.4(c) and the Purchase Rights set forth in Article 11.

Section 4.3 Other Remedies.

If an Event of Default with respect to Outstanding Notes occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the Defaulted Payment or Interest and Additional Interest, if any, due and payable on the Notes or to enforce the performance of any provision of the Notes.

The Trustee may maintain a proceeding in which it may prosecute and enforce all rights of action and claims under this Indenture or the Notes, even if it does not possess any of the Notes or does not produce any of them in the proceeding.

Section 4.4 Waiver of Past Defaults.

The Holders, through the written consent of not less than a majority of the principal amount of the Outstanding Notes, may, on behalf of the Holders of all of the Notes, waive an existing Default or Event of Default, except a Default or Event of Default:

(a) set forth in Sections 4.1(b) and (c), provided, however, that subject to Section 4.7, the Holders of a majority of the principal amount of the Outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration; or

(b) in respect of a covenant or provision hereof which, under Section 7.2 hereof, cannot be modified or amended without the consent of the Holders of each Outstanding Note affected.

Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; provided, however, that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

Section 4.5 Control by Majority.

The Holders of a majority of the principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that:

(a) conflicts with any law or with this Indenture;

(b) the Trustee determines may be unduly prejudicial to the rights of the Holders not joining therein; or

The Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

Section 4.6 Limitation on Suit.

No Holder shall have any right to pursue any remedy with respect to this Indenture or the Notes (including instituting any proceeding, judicial or otherwise, with respect to this Indenture or for the appointment of a receiver or trustee) unless:

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

(b) the Holders of at least 25% of the principal amount of the Outstanding Notes shall have made written request to the Trustee to pursue the remedy;

(c) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against any costs, expenses and liabilities incurred in complying with such request;

(d) the Trustee has failed to comply with the request for 60 days after its receipt of such notice, request and offer of indemnity; and

(e) during such 60-day period, no direction inconsistent with such written request has been given to the Trustee by the Holders of a majority of the principal amount of the Outstanding Notes;

provided, however, that no one or more of such Holders may use this Indenture to prejudice the rights of another Holder or to obtain preference or priority over another Holder.

Section 4.7 Unconditional Rights of Holders to Receive Payment and to Convert.

Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the Principal of and Interest and Additional Interest, if any, in respect of the Notes held by such Holder, on or after the respective due dates, to convert the Notes in accordance with Article 12 or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, and such rights shall not be impaired or affected adversely without the consent of such Holder.

Section 4.8 Collection of Indebtedness and Suits for Enforcement by the Trustee.

The Company covenants that if:

(a) a Default or Event of Default is made in the payment of Interest and Additional Interest, if any, on any Note when such Interest and Additional Interest, if any, becomes due and payable and such Default or Event of Default continues for a period of 30 days; or

(b) a Default or Event of Default is made in the payment of the Principal on any Note when the same becomes due and payable at its Stated Maturity, upon declaration when due for purchase by the Company or otherwise,

then the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Notes, the entire Principal then due and payable (as expressed therein or as a result of any acceleration effected pursuant to Section 4.2 hereof) on such Notes for any such amounts and, to the extent legally enforceable, Interest and Additional Interest, if any, 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 the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company, wherever situated.

If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

Section 4.9 Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or the property of the Company or its creditors, the Trustee (irrespective of whether the Principal, Interest and Additional Interest, if any, shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the Principal, Interest and Additional Interest, if any, owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding; and

(b) to collect and receive any monies, Common Stock or other property payable or deliverable on any such claim and to distribute the same,

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 5.8.

Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept, or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 4.10 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 4.11 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 2.11, no right or remedy conferred in this Indenture 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 applicable law, be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 4.12 Delay or Omission Not Waiver.

No delay or omission of the Trustee or of any Holder 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 any 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 applicable.

Section 4.13 Priorities.

Any money and property collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee:

FIRST: to the payment of all amounts due to the Trustee under Section 5.8;

SECOND: to Holders for amounts due and unpaid on the Notes for the Principal or Interest, or Additional Interest, if any, as applicable, ratably, without preference or priority of any kind, according to such amounts due and payable on the Notes (including, without limitation, amounts due and property deliverable in relation to conversions of the Notes); and

THIRD: any remaining amounts shall be repaid to the Company.

The Trustee may fix a special record date and payment date for any payment to Holders pursuant to this Section 4.13. At least 15 days before such special record date, the Trustee shall mail to each Holder and the Company a notice that states the special record date, the payment date and the amount to be paid.

Section 4.14 Undertaking for Costs.

All parties to this Indenture agree, and each Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply 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% of the principal amount of the Outstanding Notes, or to any suit instituted by any Holder for the enforcement of (i) payments pursuant to Section 4.7, (ii) Purchase Rights in accordance with Article 11 or (iii) conversion rights in accordance with Article 12. This Section 4.14 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA.

Section 4.15 Waiver of Stay or Extension Laws.

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not 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 4.16 Payment for Consent, Waiver or Amendment.

The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of their terms or provisions of this Indenture or the Notes unless such