Indenture

Exhibit 4.1

EXECUTION COPY

AMKOR TECHNOLOGY, INC.

AND

U.S. BANK NATIONAL ASSOCIATION

AS TRUSTEE

6.00% Convertible Senior Subordinated Notes due 2014

Indenture

Dated as of April 1, 2009

Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of April 1, 2009

Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

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     THIS INDENTURE, dated as of April 1, 2009, is between Amkor Technology, Inc., a Delaware corporation (the “ Company ”), and U.S. Bank National Association, a national banking association organized and existing under laws of the United States, as trustee (the “ Trustee ”). The Company has duly authorized the creation of its 6.00% Convertible Senior Subordinated Notes due 2014 (the “ Notes ”) and to provide therefore the Company and the Trustee have duly authorized the execution and delivery of this Indenture. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders from time to time of the Notes:

ARTICLE I

DEFINITIONS

     SECTION 1.01. Definitions .

     “ Acquiring Person ” means any “person” (as defined in Section 13(d) (3) of the Exchange Act) who or which, together with all affiliates and associates (each as defined in Rule 12b-2 under the Exchange Act), becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act and as further defined below) of shares of Common Stock or other voting securities of the Company having more than 50% of the total voting power of the Voting Stock of the Company; provided , however , that an Acquiring Person shall not include: (i) the Company, (ii) any Subsidiary of the Company, (iii) any Permitted Holder or (iv) an underwriter engaged in a firm commitment underwriting in connection with a public offering of the Voting Stock of the Company (or an initial purchaser engaged in a distribution in the case of a similar private offering). For purposes hereof, a person shall not be deemed to be the beneficial owner of (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person’s affiliates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act.

     “ 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, shall mean 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. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.

     “ Affiliate Security Legend ” means the legend labeled as such that is set forth in Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture.

     “ Affiliate Restricted Stock Legend ” means the legend labeled as such and that is set forth in Exhibit D hereto, which is incorporated in and expressly made a part of this Indenture.

     “ Affiliated Entities ” means James J. Kim and his estates, spouses, ancestors and lineal descendants (and spouses thereof), the legal representatives of any of the foregoing, and the trustee of any bona fide trust of which one or more of the foregoing are sole beneficiaries or the grantors, or any Person of which any of the forgoing, individually or collectively, beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) voting securities representing at least a majority of the total voting power of all classes of Capital Stock of such Person (exclusive of any matters as to which class voting rights exist). For purposes of this definition, the term “ Affiliated Entity ” shall mean any of the Affiliate Entities individually.

     “ Affiliate Notes ” means any Notes acquired by any Affiliated Entity.

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

     “ Agent Member ” means any member of, or participant in, the Depositary.

     “ Applicable Procedures ” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, or to the delegending of Global Securities or shares of Common Stock, the rules and procedures of the Depositary for such Global Security to the extent applicable to such transaction and as in effect from time to time.

     “ Board of Directors ” means (i) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of the board of directors, (ii) with respect to a partnership, the general partner or the board of directors of the general partner, as applicable, of the partnership and (iii) with respect to any other entity, the board or committee of that entity serving a similar function.

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

     “ Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.

     “ Change of Control ” means the occurrence of one or more of the following events: (a) any Person has become an Acquiring Person, (b) the Company consolidates with or merges into any other Person, or conveys, transfers or leases all or substantially all of its assets to any Person, or any other Person merges into the Company, and, in the case of any such transaction, the outstanding Common Stock of the Company is exchanged as a result, unless the stockholders of the Company immediately before such transaction beneficially own, directly or indirectly immediately following such transaction, shares representing at least a majority of the combined voting power of the outstanding voting securities of the Person resulting from such transaction in substantially the same proportion as their ownership of the Voting Stock of the Company immediately before such transaction, or (c) any time the Continuing Directors do not constitute a majority of the Board of Directors of the Company (or, if applicable, a successor corporation to the Company); provided that a Change of Control shall not be deemed to have occurred if either (x) the Closing Sale Price of the Common Stock for any five Trading Days during the 10 consecutive Trading Days immediately preceding the Change of Control is equal to at least

105% of the applicable Conversion Price in effect on the date of such Change of Control or (y) at least 90% of the consideration (excluding cash payments for fractional shares) in the transaction or transactions constituting the Change of Control consists of shares of common stock that are, or upon issuance will be, traded on a U.S. national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States.

     “ Commission ” means the United States Securities and Exchange Commission.

     “ 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. Subject to the provisions of Section 12.06, however, shares issuable on conversion of Notes shall include only shares of the class designated as Common Stock at the Issue Date 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 to 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 party named as such above until a successor replaces it in accordance with Article V and thereafter means the successor.

     “ Company Order ” means a written order of the Company signed by an Officer of the Company.

     “ Continuing Directors ” means, as of any date of determination, any member of the Board of Directors who (i) was a member of such Board of Directors on the Issue Date or (ii) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election.

     “ Conversion Price ” means the conversion price per $1,000 principal amount of Notes determined by dividing $1,000 by the Conversion Rate.

     “ Conversion Rate ” means the initial conversion rate specified in the form of Note in Paragraph 15 of such form, as adjusted in accordance with the provisions of Article XII.

     “ Convertible Subordinated Notes ” means the Company’s 6.25% Convertible Subordinated Notes due 2013.

     “ Corporate Trust Office ” means the corporate trust office of the Trustee at which at any particular time the trust created by this Indenture shall principally be administered. As of the Issue Date, the Corporate Trust Office is located at One Federal Street, 3rd Floor, Boston, MA 02110, Attention: Corporate Trust Services (Amkor Technology, Inc. 6.00% Convertible Senior Subordinated Notes due 2014), and solely for purposes of Section 2.03 hereof the Trustee’s New

York office is located at 100 Wall Street, New York, NY 10005, Attention: Corporate Trust Services (Amkor Technology, Inc. 6.00% Convertible Senior Subordinated Notes due 2014).

     “ Credit Facilities ” means, with respect to the Company or any Subsidiary, one or more debt facilities or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time.

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

     “ Depositary ” means, with respect to any Global Securities, a clearing agency that is registered as such under the Exchange Act and is designated by the Company to act as Depositary for such Global Securities (or any successor securities clearing agency so registered), which shall initially be DTC.

     “ Designated Event ” means the occurrence of a Change of Control or a Termination of Trading.

     “ Designated Senior Debt ” means any Senior Debt permitted under the Senior Notes Indentures, the outstanding principal amount of which is, or which provides for commitments to extend Senior Debt, in the amount of $25.0 million or more and that has been designated by the Company as “ Designated Senior Debt .”

     “ Disqualified Stock ” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions.

     “ Domestic Subsidiary ” means a Restricted Subsidiary that is (i) formed under the laws of the United States of America or a state or territory thereof or (ii) as of the date of determination, treated as a domestic entity or a partnership or a division of a domestic entity for U.S. federal income tax purposes; and, in either case, is not owned, directly or indirectly, by the Company or an entity that is not described in clauses (i) or (ii) above.

     “ DTC ” means The Depository Trust Company, a New York corporation.

     “ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

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

     “ Existing Pari Passu Indebtedness ” means the Company’s 2.50% Convertible Senior Subordinated Notes due 2011.

     “ Foreign Subsidiary ” means a Subsidiary of the Company that is not a Domestic Subsidiary.

     “ GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect from time to time.

     “ Global Security ” means Notes represented by a certificate in definitive, fully registered form of securities without interest coupons in global form, that is deposited with the Depositary or its custodian, and registered in the name of the Depositary or its nominee.

     “ Global Securities Legend ” means the legend labeled as such and that is set forth in Exhibit A hereto, which is incorporated in and expressly made part of this Indenture.

     “ 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, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.

     “ Hedging Obligations ” means, with respect to any Person, the Obligations of such Person under: (i) swap agreements, cap agreements and collar agreements relating to interest rates, commodities or currencies; and (ii) other agreements or arrangements designed to protect such Person against fluctuations in interest rates, commodities or currencies.

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

     “ Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent, in respect of: (i) borrowed money; (ii) bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (iii) banker’s acceptances; (iv) Capital Lease Obligations; (v) the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or (vi) Hedging Obligations, if and to the extent any of such indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “ Indebtedness ” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person measured as the lesser of the fair market value of the assets of such Person so secured or the amount of such Indebtedness) and, to the extent not otherwise included, the Guarantee by such Person of any indebtedness of any other Person. The amount of any Indebtedness outstanding as of any date shall be the accreted value thereof, in the case of any Indebtedness issued with original issue

discount. In addition, the amount of any Indebtedness shall also include the amount of all Obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Restricted Subsidiary of the Company, any preferred stock of such Restricted Subsidiary.

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

     “ Interest Payment Date ” means April 15 and October 15 of each year, commencing October 15, 2009.

     “ Issue Date ” means the date on which the Notes are first issued and authenticated under the Indenture.

     “ Lien ” means, with respect to any asset, any mortgage, lien, pledge, fixed or floating charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof; provided that the term “ Lien ” shall not include any lease properly classified as an operating lease in accordance with GAAP.

     “ Material Subsidiary ” means any Subsidiary of the Company that at the date of determination is a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act.

     “ Maturity Date ” means April 15, 2014.

     “ Non-Affiliate Notes ” means all Notes other than Affiliate Notes.

     “ Non-Affiliate Restricted Stock Legend ” means the legend labeled as such and that is set forth in Exhibit D hereto, which is incorporated in and expressly made a part of this Indenture.

     “ Note Custodian ” means U.S. Bank National Association, as custodian with respect to any Global Security, or any successor entity thereto.

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

     “ Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior Vice President or Vice President (whether or not designated by a number or numbers or word or words before or after the title “ Vice President ”), the Treasurer, any other executive officer, the Secretary and any Assistant Treasurer or any Assistant Secretary of the Company.

     “ Officer’s Certificate ” means a certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Company.

     “ Opinion of Counsel ” means a written opinion from legal counsel who may be an employee of or counsel to the Company or the Trustee except to the extent otherwise indicated in this Indenture.

     “ Permitted Bank Debt ” means Indebtedness incurred by the Company or any Restricted Subsidiary other than a Foreign Subsidiary pursuant to the Credit Facilities, any Receivables Program, or one or more other term loan and/or revolving credit or commercial paper facilities (including any letter of credit subfacilities) entered into with commercial banks and/or financial institutions, and any replacement, extension, renewal, refinancing or refunding thereof.

     “ Permitted Holders ” means James J. Kim and his estates, spouses, ancestors and lineal descendants (and spouses thereof), the legal representatives of any of the foregoing, and the trustee of any bona fide trust of which one or more of the foregoing are the sole beneficiaries or the grantors, or any Person of which any of the foregoing, individually or collectively, beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) voting securities representing at least a majority of the total voting power of all classes of Capital Stock of such Person (exclusive of any matters as to which class voting rights exist); provided , however , that if at any time the foregoing Persons own in the aggregate 70% or more of the Company’s Voting Stock, none of the foregoing Persons shall thereafter be deemed to be a Permitted Holder.

     “ Permitted Junior Securities ” means securities that (i) are subordinated to Senior Debt and any Guarantee in respect thereof, at least to the same extent as the Notes are subordinated to Senior Debt, and all securities issued in exchange for, or on account of, Senior Debt or any such Guarantee (“ Reorganization Senior Debt ”), (ii) have a final maturity date that is the same or greater than the Notes (iii) are not subject to any required principal payment, sinking fund payment or redemption prior to the last scheduled final maturity date of any Reorganization Senior Debt, and (iv) are not secured by any collateral.

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

     “ Receivables Program ” means, with respect to any Person, an agreement or other arrangement or program providing for the advance of funds to such Person against the pledge, contribution, sale or other transfer of encumbrances of Receivables Program Assets of such Person or such Person and/or one or more of its Subsidiaries.

     “ Receivables Program Assets ” means all of the following property and interests in property, including any undivided interest in any pool of any such property or interests, whether now existing or existing in the future or hereafter arising or acquired: (i) accounts; (ii) accounts receivable, general intangibles, instruments, contract rights, documents and chattel paper (including, without limitation, all rights to payment created by or arising from sales of goods, leases of goods, or the rendition of services, no matter how evidenced, whether or not earned by performance) (iii) all unpaid seller’s or lessor’s rights (including, without limitation, rescission, replevin, reclamation and stoppage in transit) relating to any of the foregoing or arising therefrom; (iv) all rights to any goods or merchandise represented by any of the foregoing (including, without limitation, returned or repossessed goods); (v) all reserves and credit

balances with respect to any such accounts receivable or account debtors; (vi) all letters of credit, security or Guarantees of any of the foregoing; (vii) all insurance policies or reports relating to any of the foregoing; (viii) all collection or deposit accounts relating to any of the foregoing; (ix) all books and records relating to any of the foregoing; (x) all instruments, contract rights, chattel paper, documents and general intangibles relating to any of the foregoing; and (xi) all proceeds of any of the foregoing.

     “ Regular Record Date ” means the April 1 or October 1 immediately preceding each Interest Payment Date.

     “ Representative ” means (a) the indenture trustee or other trustee, agent or representative for any Senior Debt or (b) with respect to any Senior Debt that does not have any such trustee, agent or other representative, (i) in the case of such Senior Debt issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Senior Debt, any holder or owner of such Senior Debt acting with the consent of the required Persons necessary to bind such holders or owners of such Senior Debt and (ii) in the case of all other such Senior Debt, the holder or owner of such Senior Debt.

     “ Resale Restriction Delegending Date ” means the date that is one year from the original Issue Date of the Notes.

     “ Restricted Note ” means any Note until such time as (i) such Note has been transferred pursuant to an effective shelf registration statement or (ii) the Restricted Securities Legend therefor as been removed pursuant to Section 2.07(b), (c) or (d).

     “ Restricted Securities Legend ” means the legend labeled as such and that is set forth in Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture.

     “ Restricted Stock Legend ” means the Affiliate Restricted Stock Legend, the Non-Affiliate Restricted Stock Legend or both, as the context may require, as set forth in Exhibit D hereto, which is incorporated in and expressly made a part of this Indenture.

     “ Restricted Subsidiary ” of a Person means any Subsidiary treated as a “ Restricted Subsidiary ” under the Senior Notes Indentures or any indenture governing the Existing Pari Passu Indebtedness.

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

     “ Senior Debt ” means: (i) the Senior Notes and all Obligations under the Senior Notes Indentures; (ii) all Indebtedness outstanding under Permitted Bank Debt and all Hedging Obligations with respect thereto; (iii) any other Indebtedness permitted to be incurred by the Company under the terms of the Senior Notes Indentures, unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the Notes; and (iv) any Guarantee by the Company or any Guarantor of any Indebtedness of any Foreign Subsidiary incurred in compliance with the Senior Notes Indentures; (v) all Obligations with respect to the items listed in the preceding clauses (i), (ii), (iii) and (iv). Notwithstanding anything to the contrary in the preceding, Senior Debt (other than

any Obligations with respect to Permitted Bank Debt) will not include: (a) any liability for federal, state, local or other taxes owed or owing by the Company; (b) any Indebtedness of the Company to any of its Subsidiaries or other Affiliates; (c) any trade payables; (d) the Existing Pari Passu Indebtedness; (e) Indebtedness evidenced by the Notes; (f) Indebtedness that is expressly subordinate or junior in right of payment to any other Indebtedness of the Company; (g) any obligation that by operation of law is subordinate to any general unsecured obligations of the Company; or (h) any Indebtedness that is incurred in violation of the Senior Notes Indentures.

     “ Senior Notes ” means the Company’s 7.125% Senior Notes due 2011, the Company’s 7.75% Senior Notes due 2013 and the Company’s 9.25% Senior Notes due 2016.

     “ Senior Notes Indentures ” means the indentures governing the Senior Notes.

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

     “ Termination of Trading ” means the occurrence of the following: the Common Stock (or other common stock into which the Notes are then convertible) is neither listed for trading on a United States national securities exchange (including the Nasdaq Global Select Market) nor approved for trading on an established automated over-the-counter trading market in the United States.

     “ TIA ” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the Issue Date, except as provided in Sections 9.03 and 12.06.

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

     “ Trust Officer ” means an officer in the Corporate Trust Office of the Trustee.

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

     “ U.S. Government Obligations ” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged. In order to have money available on a payment date to pay principal or interest on the Notes, the U.S. Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. U.S. Government Obligations shall not be callable at the issuer’s option.

     “ Voting Stock ” of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.

     SECTION 1.02. Other Definitions .

     SECTION 1.03. Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

     (a) “ Commission ” means the Commission;

     (b) “ indenture securities ” means the Notes;

     (c) “ indenture security holder ” means a Holder;

     (d) “ indenture to be qualified ” means this Indenture; “indenture trustee” or “institutional trustee” means the Trustee; and

     (e) “ obligor ” on the Notes means the Company or any other obligor on the Notes.

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

     SECTION 1.04. Rules of Construction . Unless the context otherwise requires:

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

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

     (3) “or” is not exclusive;

     (4) words in the singular include the plural, and in the plural include the singular;

     (5) the male, female and neuter genders include one another;

     (6) references to the payments of interest on the Notes shall include additional interest payable pursuant to Section 6.02(b) (if any) and additional interest due as result of any increase in the interest rate pursuant to Section 4.10 (if any);

     (7) the word “including” wherever used will be deemed to be followed by the word “without limitation”;

     (8) references to agreements and other instruments include subsequent amendments thereto; and

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

     The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and 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. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

ARTICLE II

THE NOTES

     SECTION 2.01. Form and Dating .

     (a)  Form and Dating .

     (i) The Notes shall be issued in the form of one or more definitive, fully registered form of securities without interest coupons. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, as the case may be. The terms and provisions of the Notes 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.

     (ii) Except as otherwise expressly permitted in this Indenture, all Notes shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class.

     (iii) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Securities. Each such Global Security shall be issued with the Restricted Securities Legend and the Global Securities Legend.

     (iv) Notes originally offered and sold to Affiliated Entities (“ Affiliate Notes ”) will be issued in the form of one or more Definitive Securities. Each Affiliate Note shall be issued with the Affiliate Security Legend, set forth in Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture. Upon such issuance, the Registrar shall register such Affiliate Notes in the name of the beneficial owner or owners of such Note (or the nominee of such beneficial owner or owners) and deliver the certificates for such Affiliate Notes to the respective beneficial owner or owners (or the nominee of such beneficial owner or owners). Affiliate Notes will bear the Affiliate Securities Legend set forth in Exhibit A unless otherwise agreed by the Company (with written notice thereof to the Trustee).

     (v) Any Global Security shall be deposited on behalf of the purchasers of the Non-Affiliate Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or a nominee of the Depositary for the accounts of participants in the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of any Global Security may from time to time be increased or decreased by adjustments

made on the records of the Trustee and the Depositary or its nominee as hereinafter provided. Any Global Security may be represented by more than one certificate.

     (vi) The Notes may have notations, legends or endorsements as specified in this Indenture or as otherwise required by law, stock exchange rule or Depositary rule or usage. The Company shall approve the form of the Notes and any notation, legend or endorsement on them.

     (b)  Book-Entry Provisions . This Section 2.01(b) shall apply only to a Global Security deposited with or on behalf of the Depositary.

     The Company shall execute and the Trustee shall, in accordance with this Section 2.01(b) and upon Company Order, authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary or a nominee of the Depositary (which, in the case of DTC, shall initially be Cede & Co.), (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as custodian for the Depositary pursuant to (in the case of DTC) a FAST Balance Certificate Agreement between the Depositary and the Trustee, and (iii) shall bear appropriate legends as set forth herein.

     Except as provided in Section 2.11(b)(iv), Agent Members shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Security.

     (c)  Definitive Securities . Except as provided in Section 2.07 and 2.11, owners of beneficial interests in Global Securities will not be entitled to receive physical delivery of certificated Notes in definitive form. Purchasers of Affiliate Notes will receive Definitive Securities bearing the Affiliate Securities Legend.

     SECTION 2.02. Execution and Authentication .

     (a) One Officer shall sign the Notes for the Company by manual or facsimile signature.

     (b) If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.

     (c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

     (d) Upon Company Order, the Trustee shall authenticate Notes for original issue. The aggregate principal amount of Notes outstanding at any time may not exceed $250,000,000, except as provided in Section 2.08.

     (e) The Notes shall be issuable only in registered form without coupons and only in denominations of $1,000 or any integral multiple thereof.

     (f) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same right as an Agent to deal with the Company or an Affiliate of the Company.

     (g) If any successor that has replaced the Company in accordance with Article V has executed an indenture supplemental hereto with the Trustee pursuant to Article V, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of such successor, be exchanged for other Notes executed in the name of the such successor with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of such successor, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of such successor pursuant to this Section 2.02(g) in exchange or substitution for or upon registration of transfer of any Notes, such successor, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes then outstanding for Notes authenticated and delivered in such new name.

     SECTION 2.03. The Trustee Registrar, Paying Agent and Conversion Agent . The Company shall maintain or cause to be maintained in such locations as it shall determine, which may be the Corporate Trust Office, an office or agency: (i) where securities may be presented for registration of transfer or for exchange (“ Registrar ”); (ii) where Notes may be presented for payment (“ Paying Agent ”); (iii) an office or agency where Notes may be presented for conversion (the “ Conversion Agent ”); and (iv) where notices and demands to or upon the Company in respect of Notes and this Indenture may be served by the Holders. The Registrar shall keep a Register (“ Register ”) of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term “Paying Agent” includes any additional paying agent and the term “Conversion Agent” includes any additional Conversion Agent. The Company may change any Paying Agent, Registrar, Conversion Agent or co-registrar without prior notice. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture and shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this Indenture. Such agency agreement shall implement the provisions of this Indenture that relate to such Agent (including any applicable terms of the TIA). The Company or any of its subsidiaries may act as Paying Agent, Registrar, Conversion Agent or co-registrar, except that for purposes of Article VIII and Section 4.06, neither the Company nor any of its subsidiaries shall act as Paying Agent. If the Company fails to appoint or maintain another entity as Registrar, or Paying Agent or Conversion Agent, the Trustee shall act as such, and the Trustee shall initially act as such. The Company initially

designates the Borough of Manhattan office of the Trustee as one such office or agency of the Company required by this Section 2.03 and appoints the Trustee as Registrar, Paying Agent and agent for service of demands and notices in connection with the Notes and this Indenture until such time as another Person is appointed as such.

     SECTION 2.04. Paying Agent To Hold Money in Trust . The Company shall require each Paying Agent (other than the Trustee, who hereby so agrees), to agree in writing that the Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal or interest on the Notes, and will notify the Trustee of any default by the Company in respect of making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders of all money held by it as Paying Agent. Upon any proceeding under any Bankruptcy Law with respect to the Company or any of its Affiliates, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Company or such Affiliate as Paying Agent.

     SECTION 2.05. 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 TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date, and as the Trustee may request in writing within fifteen (15) days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.

     SECTION 2.06. Legends; Transfer Restrictions .

     (a) Each Global Security shall bear the Global Securities Legend.

     (b) Each Restricted Note shall bear the Restricted Securities Legend. Each Note that bears or is required to bear the Restricted Securities Legend shall be subject to the restrictions on transfer set forth therein, and each Holder of such Note, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.

     (c) Each Affiliate Note shall bear the Affiliate Security Legend. Each Note that bears or is required to bear the Affiliate Security Legend shall be subject to the restrictions on transfer set forth therein, and each Holder of such Note, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.

     (d) As used in Sections 2.06 and 2.07, the term “transfer” includes any sale, pledge, transfer or other disposition whatsoever of any Restricted Note or any Affiliate Note. The Registrar shall not register any transfer of a Restricted Note or an Affiliate Note not made in accordance with the restrictions on transfer set forth in Sections 2.06 and 2.07.

     (e) Every stock certificate representing Common Stock issued in the circumstances described in Section 12.11 hereof shall bear the applicable Restricted Stock Legend unless removed in accordance with the provisions of Section 12.11.

     SECTION 2.07. Transfer and Exchange . (a) When Notes are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes for other denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transactions specified herein and the related certificate are met. To permit registrations of transfers and exchanges, the Company shall issue and the Trustee shall authenticate Notes at the Registrar’s request, bearing registration numbers not contemporaneously outstanding. No service charge shall be made to a Holder for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable upon exchanges pursuant to Sections 2.11, 9.05 or 12.02.

     The Company or the Registrar shall not be required to register the transfer of any Notes surrendered for repurchase pursuant to Section 4.06.

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

     (b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with this Section 2.07(b), Section 2.11 and the Applicable Procedures; provided , however , that beneficial interests in a Global Security that is a Restricted Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in such Global Security in accordance with the transfer restrictions set forth in the Restricted Securities Legend.

     Except for transfers or exchanges made in accordance with paragraphs (i) through (iii) of this Section 2.07(b) and Section 2.11, transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.

   (i) Global Security To Definitive Security. If an owner of a beneficial interest in a Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary wishes at any time to transfer its interest in such Global Security to a Person who is required to take delivery thereof in the form of a definitive registered note (such Note, a “ Definitive Security ”), such owner may, subject to the restrictions on transfer set forth herein and such Global Security and the Applicable Procedures, cause the exchange of such interest for one or more Definitive Securities of any authorized denomination or denominations and of the same aggregate principal amount. Upon receipt by the Registrar of (1) instructions from the Depositary directing the Trustee to authenticate and deliver one or more Definitive Securities of the same aggregate principal amount as the beneficial interest in the Global Security to be exchanged (such instructions to contain the

name or names of the designated transferee or transferees, the authorized denomination or denominations of the Definitive Securities to be so issued and appropriate delivery instructions), and (2) in the case of a Restricted Note, such certifications or other information and, in the case of transfers pursuant to Rule 144 under the Securities Act, legal opinions as the Company may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Registrar will instruct the Depositary to reduce or cause to be reduced such Global Security by the aggregate principal amount of the beneficial interest therein to be exchanged and to debit or cause to be debited from the account of the Person making such transfer the beneficial interest in the Global Security that is being transferred, and concurrently with such reduction and debit the Company shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities of the same aggregate principal amount in accordance with the instructions referred to above.

   (ii) Definitive Security to Definitive Security. If a Holder of a Definitive Security wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who is required to take delivery thereof in the form of a Definitive Security, such Holder may, subject to the restrictions on transfer set forth herein and in such Definitive Security, cause the transfer of such Definitive Security (or any portion thereof in a principal amount equal to an authorized denomination) to such transferee. Upon receipt by the Registrar of (1) such Definitive Security, duly endorsed as provided herein, (2) instructions from such Holder directing the Trustee to authenticate and deliver one or more Definitive Securities of the same aggregate principal amount as the Definitive Security, or portion thereof, to be transferred (such instructions to contain the name or names of the designated transferee or transferees, the authorized denomination or denominations of the Definitive Securities to be so issued and appropriate delivery instructions), and (3) in the case of a Restricted Note or an Affiliate Note, such certifications or other information (including, in the case of a transfer of an Affiliate Note from an Affiliated Entity to another Affiliated Entity, a certificate substantially in the form of Exhibit B hereto) and, in the case of transfers to persons pursuant to Rule 144 under the Securities Act, legal opinions as the Company may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Registrar, shall cancel or cause to be canceled such Definitive Security and concurrently therewith, the Company shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities in the appropriate aggregate principal amount, in accordance with the instructions referred to above and, if only a portion of a Definitive Security is transferred as aforesaid, concurrently therewith the Company shall execute and the Trustee shall authenticate and deliver to the transferor a Definitive Security in a principal amount equal to the principal amount which has not been transferred. A Holder of a Definitive Security may at any time exchange such Definitive Security for one or more Definitive Securities of other authorized denominations and in the same aggregate principal amount and registered in the same name by delivering such Definitive Security, duly endorsed as provided herein, to the Trustee together with instructions directing the Trustee to authenticate and deliver one or more Definitive Securities in the same aggregate principal amount and registered in the same name as the Definitive Security to

be exchanged, and the Registrar thereupon shall cancel or caused to be canceled such Definitive Security and concurrently therewith the Company shall execute and Trustee shall authenticate and deliver, one or more Definitive Securities in the same aggregate principal amount and registered in the same name as the Definitive Security being exchanged.

   (iii) Definitive Security to Global Security . If a Holder of a Definitive Security wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who is not required to take delivery thereof in the form of a Definitive Security, such Holder shall, subject to the restrictions on transfer set forth herein and in such Definitive Security and the rules of the Depositary cause the exchange of such Definitive Security for a beneficial interest in the Global Security. Upon receipt by the Registrar of (1) such Definitive Security, duly endorsed as provided herein, (2) instructions from such Holder directing the Trustee to increase the aggregate principal amount of the Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary by the same aggregate principal amount as the Definitive Security to be exchanged, such instructions to contain the name or names of a member of, or participant in, the Depositary that is designated as the transferee, the account of such member or participant and other appropriate delivery instructions, (3) the assignment form on the back of the Definitive Security completed in full, and (4) in the case of a Restricted Note or an Affiliate Note, such certifications or other information and legal opinions (which shall be required in the case of transfers of any Affiliate Note by any Affiliated Entity pursuant to Rule 144 under the Securities Act), as the Company may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Trustee shall cancel or cause to be canceled such Definitive Security and concurrently therewith shall increase the aggregate principal amount of the Global Security by the same aggregate principal amount as the Definitive Security canceled; provided , that in the case of any transfer of an Affiliate Note to a Person taking delivery thereof as a beneficial interest in a Global Security, any such transfer shall be made only pursuant either (i) in a transaction complying with Rule 144 or (ii) pursuant to an effective shelf registration statement, such effectiveness to be certified by the Company to the Trustee or (iii) to Persons who agree to be bound by the restrictions applicable to such Holders for so long as such transferred securities constitutes “restricted securities.”

     (c) So long as and to the extent that the Non-Affiliate Notes are represented by one or more Global Securities held by or on behalf of the Depositary only, the Company may accomplish any delegending of such Non-Affiliate Notes represented by such Global Securities at any time on or after the Resale Restriction Delegending Date by:

     (i) providing written notice to the Trustee that the Resale Restriction Delegending Date has occurred and instructing the Trustee to remove the Restricted Securities Legend from the Notes;

     (ii) providing written notice to Holders of the Non-Affiliate Notes that the Restricted Securities Legend has been removed or deemed removed;

     (iii) providing written notice to the Trustee and the Depositary to change the CUSIP number for the Non-Affiliate Notes to the applicable unrestricted CUSIP number; and

     (iv) complying with any Applicable Procedures for delegending;

whereupon the Restricted Securities Legend shall be deemed removed from any Global Securities without further action on the part of Holders.

     On and after the Resale Restriction Delegending Date, the Company shall also (i) instruct the transfer agent for the Common Stock to remove the Restricted Stock Legend from any Common Stock issued upon conversion of the Non-Affiliate Notes, (ii) notify the holders of any Common Stock issued upon conversion of the Non-Affiliate Notes (to the extent any Common Stock has been issued upon conversion of the Non-Affiliate Notes) that such Restricted Stock Legend has been removed, (iii) if relevant, notify the transfer agent for the Common Stock to change the CUSIP number for the Common Stock issued upon conversion of the Non-Affiliate Notes to the applicable unrestricted CUSIP number, and (iv) comply with any Applicable Procedures for delegending any Common Stock including the Restricted Stock Legend.

     (d)  Transfers of Notes and Restricted Notes .

(i) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Security) not bearing (or not required to bear upon such transfer, exchange or replacement) a Restricted Securities Legend, the Registrar shall exchange such Notes (or beneficial interests) for Notes (or beneficial interests in a Global Security) not bearing a Restricted Securities Legend.

(ii) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Security) bearing a Restricted Securities Legend at any time prior to the time the Company has provided notice of the occurrence of the Resale Restriction Delegending Date, the Registrar shall deliver only Notes (or beneficial interests in a Global Security) bearing a Restricted Securities Legend unless (i) such Notes (or beneficial interests) are transferred pursuant to an effective shelf registration statement; (ii) such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form of Exhibit C and an Opinion of Counsel reasonably satisfactory to the Registrar; (iii) such Notes (or beneficial interests) are not Affiliate Notes and are transferred, replaced or exchanged after the Resale Restriction Delegending Date; or (iv) in connection with such transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably required by and satisfactory to it to the effect that neither such Restricted Securities Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. The Company shall deliver to the Trustee an Officer’s Certificate promptly upon effectiveness, withdrawal or suspension of any shelf registration statement that is or has previously been declared effective with respect to the Notes.

     (e) Any transfer of Restricted Notes not described above (other than a transfer of a beneficial interest in a Global Security that does not involve an exchange of such interest for a Definitive Security or a beneficial interest in another Global Security, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act, or as otherwise set forth in this Indenture.

     (f) Any Non-Affiliate Note or Common Stock issued upon the conversion or exchange of a Non-Affiliate Note that, prior to the date upon which the Company instructs the Trustee to remove the Restricted Securities Legend pursuant to Section 2.07(c) above, is purchased or owned by the Company or any Affiliate thereof, may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Non-Affiliate Note or Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144).

     (g) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary subject to the Applicable Procedures. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members and any beneficial owners.

     (h) 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 Notes (including any transfers between or among Agent Members or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation as is 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. The Trustee shall have no obligations or duties to the holders of any Common Stock issued pursuant to Article XII hereof.

     SECTION 2.08. Replacement Notes . If the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company as a condition of receiving a replacement Note, such Holder shall provide a certificate of loss and an indemnity and/or an indemnity bond sufficient, in the judgment of both the Company and the Trustee, to fully protect the Company, the Trustee, any Agent and any authenticating agent from any loss, liability, cost or expense which any of them may suffer or incur if the Note is replaced. The Company and the Trustee may charge the relevant Holder for their expenses in replacing any Note.

     The Trustee or any authenticating agent may authenticate any such substituted Note, and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require. Upon the issuance of any substituted Note, 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 connected therewith. In case any Note which has matured or is about to mature, or has been submitted for repurchase pursuant to Section 4.06 or is about to be converted into Common Stock pursuant to Article XII, shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to the authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent of the destruction, loss or theft of such Note and of the ownership thereof.

     Every replacement Note is an additional obligation of the Company and shall be entitled to all the benefits provided under this Indenture equally and proportionately with all other Notes duly issued, authenticated and delivered hereunder.

     SECTION 2.09. Outstanding Notes . The Notes outstanding at any time are all the Notes properly authenticated by the Trustee except for those canceled by the Trustee, those delivered to it for cancellation, and those described in this Section as not outstanding.

     If a Note is replaced pursuant to Section 2.08, it shall cease to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.

     If Notes are considered paid under Section 4.01 or converted under Article XII, they shall cease to be outstanding and interest on them shall cease to accrue.

     Subject to Section 2.10 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

     SECTION 2.10. When Treasury Notes Disregarded . In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or an Affiliate of the Company shall be considered as though they are not outstanding except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the Trustee knows are so owned shall be so disregarded; provided , however , that this Section 2.10 shall not apply to any Affiliate Notes beneficially owned by an Affiliated Entity to the extent specified in Article VI and Article IX of this Indenture; and further provided that such proviso shall cease to apply to such Affiliate Notes at any time after their transfer to a beneficial owner that is not an Affiliated Entity (even if such Notes are subsequently reacquired by an Affiliated Person), at which time such Notes shall no longer be deemed to be Affiliate Notes, but only to the extent of the Notes so transferred.

     SECTION 2.11. Temporary Notes; Definitive Securities .

     (a) Until definitive Notes are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes and shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.

     (b)  Definitive Securities .

     (i) Except for transfers made in accordance with Section 2.07(b), a Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary pursuant to Section 2.01 shall be transferred to the beneficial owners thereof in the form of Definitive Securities only if such transfer complies with Section 2.07 and (x) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor Depositary is not appointed by the Company within 90 days of such notice, or (y) an Event of Default has occurred and is continuing or (z) the Company, in its discretion, at any time determines not to have all of the Notes represented by a Global Security.

     (ii) In connection with the exchange of an entire Global Security for Definitive Securities pursuant to clause (x) of Section 2.11(b)(i), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon Company Order the Trustee shall authenticate and deliver to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations, and the Registrar shall register such exchanges in the Register.

     (iii) In connection with the exchange of an entire Global Security for Definitive Securities pursuant to clause (y) of Section 2.11(b)(i), if an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members on behalf the owner of a beneficial interest in a Global Security directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Security for Definitive Securities, subject to and in accordance with the Applicable Procedures, the Company shall promptly execute, and upon Company Order the Trustee shall authenticate and make available for delivery to such beneficial owner, Definitive Securities in a principal amount equal to such beneficial interest in such Global Security.

     (iv) If (A) an event described in Section 2.11(b)(i)(x) occurs and Definitive Securities are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner instructions to obtain Definitive Securities due to an event described in Section 2.11(b)(i)(y) and Definitive Securities are not issued promptly to any such beneficial owner, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 6.06 hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Security

that represents such beneficial owner’s Notes as if such Definitive Securities had been issued.

     (c) Any Global Security or interest thereon that is transferable to the beneficial owners thereof in the form of Definitive Securities shall, if held by the Depositary, be surrendered by the Depositary to the Trustee, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Notes of authorized denominations in the form of certificated Notes in definitive form. Any portion of a Global Security transferred pursuant to this Section shall be executed, authenticated and delivered only in denominations of $1,000 and any integral multiple thereof and registered in such names as the Depositary shall direct.

     (d) Prior to any transfer pursuant to Section 2.11(b), the registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

     (e) The Company will make available to the Trustee a reasonable supply of certificated Notes in definitive form without interest coupons.

     SECTION 2.12. Cancellation . The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else may cancel Notes surrendered for registration of transfer, exchange, payment, replacement, conversion, repurchase or cancellation. Upon written instructions of the Company, the Trustee shall destroy and dispose of canceled Notes as the Company directs and, after such destruction, shall deliver a certificate of destruction to the Company. The Company may not issue new Notes to replace Notes that it has paid or repurchased or that have been delivered to the Trustee for cancellation or that any Holder has (i) converted pursuant to Article XII hereof, or (ii) submitted for repurchase pursuant to Section 4.06 hereof (unless revoked pursuant to Section 4.06).

     SECTION 2.13. Defaulted Interest . If the Company fails to make a payment of interest on the Notes, it shall pay such defaulted interest plus, to the extent lawful, any interest payable on the defaulted interest. It may pay such defaulted interest, plus any such interest payable on it, to the Persons who are Holders of Notes on a subsequent special record date. The Company shall fix any such special record date and payment date. At least 15 days before any such special record date, the Company shall mail to Holders of the Notes a notice that states the special record date, payment date and amount of such interest to be paid.

     SECTION 2.14. CUSIP Number . (a) The Company, in issuing the Restricted Notes and the Affiliate Notes, will use a restricted CUSIP number for such Notes until such time as the Restricted Securities Legend or Affiliate Security Legend, as the case may be, is removed pursuant to Section 2.07(c) or 2.07(d). At such time as the applicable restrictive legend is removed from such Notes pursuant to Section 2.07(c) or (d), the Company will use an unrestricted CUSIP number for such Note, but only with respect to the Notes where so removed.

     (b) The Company, upon issuing shares of Common Stock upon conversion of Restricted Notes or Affiliate Notes, will use a restricted CUSIP number for such shares of Common Stock. With respect to such share of Common Stock, until such time as the applicable Restricted Stock Legend is removed pursuant to Section 2.07(c) or 2.07(d) from such share of Common Stock, as the case may be, such restricted CUSIP will be the CUSIP numbers for such share of Common Stock. At such time as the applicable restrictive legend is removed from such share of Common Stock pursuant to Section 2.07(c) or (d), an unrestricted CUSIP number for such share of Common Stock will be deemed to be the CUSIP number therefor, but only with respect to the shares where so removed.

ARTICLE III

[Intentionally Omitted]

ARTICLE IV

COVENANTS

     SECTION 4.01. Payment of Notes . The Company shall pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes. Principal, interest or the Designated Event Payment shall be considered paid on the date due if the Trustee or Paying Agent (other than the Company or a Subsidiary of the Company or any Affiliate of the Company) holds as of 10:00 a.m. New York City time on that date immediately available funds designated for and sufficient to pay all principal, interest and the Designated Event Payment then due; provided , however , that money held by the Agent for the benefit of holders of Senior Debt pursuant to the provisions of Article XI hereof or the payment of which to the Holders is prohibited by Article XI shall not be considered to be designated for the payment of any principal of or interest on the Notes within the meaning of this Section 4.01.

     To the extent lawful, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on (i) overdue principal, at the rate borne by Notes, compounded semiannually; and (ii) overdue installments of interest (without regard to any applicable grace period) at the same rate, compounded semiannually.

     SECTION 4.02. Reports . So long as any Notes are outstanding, the Company will (i) file with the Commission within the time periods prescribed by its rules and regulations, and (ii) furnish to the Trustee and the Holders within 15 days after the date on which the Company would be required to file the same with the Commission pursuant to its rules and regulations, all quarterly and annual financial information (without exhibits) required to be contained in a filing with the Commission on Forms 10-Q and 10-K, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual consolidated financial statements only, a report thereon by the Company’s independent auditors. The Company shall not be required to file any report or other information with the Commission if the Commission does not permit such filing, although such reports or other information will be required to be furnished to the Trustee.

     If at any time the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file all reports, if any, as would be required by the provisions of Section 314(a) of the Trust Indenture Act with the Trustee and will furnish to Holders, beneficial owners of the Notes and prospective purchasers of the Notes or shares of Common Stock issuable upon conversion of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) of the Securities Act.

     SECTION 4.03. Compliance Certificate . (a) The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate as to such officer’s knowledge of the Company’s compliance with all conditions and covenants under this Indenture (without regard to any period of grace or requirement of notice provided hereunder).

     (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default.

     SECTION 4.04. Maintenance of Office or Agency . The Company shall maintain or cause to be maintained the office or agency required under Section 2.03. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency not maintained by the Trustee. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, presentations, surrenders, notices and demands with respect to the Notes may be made or served at the Corporate Trust Office of the Trustee.

     The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designation.

     SECTION 4.05. Continued Existence . Subject to Article V, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.

     SECTION 4.06. Repurchase Upon Designated Event . (a) Upon the occurrence of a Designated Event (the date of each such occurrence being the “ Designated Event Date ”), the Company shall notify the Holders and the Trustee in writing of such occurrence and shall be required to make an offer (the “ Designated Event Offer ”) to repurchase all Notes then outstanding at a repurchase price in cash (the “ Designated Event Payment ”) equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the Designated Event Payment Date (as defined below).

     (b) Notice of a Designated Event and the Designated Event Offer shall be mailed by or at the direction of the Company to the Holders as shown on the Register not more than 20 days after the applicable Designated Event Date at the addresses as shown on the Register, with a copy to the Trustee and the Paying Agent. The Designated Event Offer shall remain open until a specified date (the “ Designated Event Offer Termination Date ”) which is at least 20 Business Days from the date such notice is mailed. During the period specified in such notice, a Holder

may elect to tender its Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Payment shall be made by the Company in respect of Notes properly tendered pursuant to this Section on a specified Business Day (the “ Designated Event Payment Date ”) which shall be no earlier than five Business Days after the applicable Designated Event Offer Termination Date and no later than 60 days after the applicable Designated Event. Unless and until the Trustee shall receive a notice of the occurrence of a Designated Event, the Trustee may assume without inquiry that none has occurred.

     (c) Such notice described in Section 4.06(b), which shall govern the terms of the Designated Event Offer, shall include such disclosures as are required by law and shall state:

   (i) that a Designated Event Offer is being made pursuant to this Section 4.06 and that all Notes will be accepted for payment;

   (ii) the transaction or transactions that constitute the Designated Event;

   (iii) the Designated Event Payment for each Note, the Designated Event Offer Termination Date and the Designated Event Payment Date;

   (iv) that any Note not accepted for payment will continue to accrue interest in accordance with the terms thereof;

   (v) that, unless the Company defaults on making the Designated Event Payment, any Note accepted for payment pursuant to the Designated Event Offer shall cease to accrue interest on the Designated Event Payment Date and no further interest shall accrue on or after such date;

   (vi) that a Holder electing to have Notes repurchased pursuant to a Designated Event Offer will be required to surrender its Notes to the Paying Agent at the address specified in the notice prior to 5:00 p.m., New York City time, on the Designated Event Offer Termination Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent;

   (vii) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the Designated Event Offer Termination Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes the Holder delivered for purchase, the Note certificate number (if any) and a statement that such Holder is withdrawing his election to have such Notes purchased;

   (viii) that Holders whose Notes are repurchased only in part will be issued Notes equal in principal amount to the unpurchased portion of the Notes surrendered;

   (ix) the instructions that a Holder must follow in order to tender its Notes; and

   (x) that in the case of a Designated Event Offer Termination Date that is also an Interest Payment Date, the interest payment, if any, due on such Interest Payment Date

shall be paid to the Person in whose name the Note is registered at the close of business on the relevant Designated Event Offer Termination Date.

     (d) On the Designated Event Offer Termination Date the Company shall (i) accept for payment all Notes or portions thereof properly tendered pursuant to the Designated Event Offer, (ii) deposit with the Paying Agent an amount of money in immediately available funds sufficient to pay the Designated Event Payment with respect to all Notes or portions thereof so tendered and accepted and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate setting forth the aggregate principal amount of Notes or portions thereof tendered to and accepted for payment by the Company. On the Designated Event Payment Date, the Paying Agent shall mail or deliver to the Holders of Notes so accepted, the Designated Event Payment, and the Trustee shall promptly authenticate and mail or cause to be transferred by book entry to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered, if any; provided that such new Notes will be in a principal amount of $1,000 or an integral multiple thereof. Any Notes not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof.

     (e) In the case of any reclassification, change, consolidation, merger, combination assignment, sale, lease, conveyance or other transfer to which Section 12.06 applies, in which the Common Stock of the Company is exchanged as a result into the right to receive stock, securities or other property or assets (including cash) which includes shares of common stock of the Company or another Person that are, or upon issuance will be, traded on a U.S. national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 50% of the aggregate fair market value of such stock, securities other property and assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of Holders to cause the Company to repurchase Notes following a Designated Event, including the applicable provisions of this Section 4.06 and the definitions of Designated Event, Change of Control and Termination of Trading, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common stock and the issuer thereof if different from the Company and Common Stock of the Company (in lieu of the Company and the Common Stock of the Company).

     (f) The Designated Event Offer shall be made by the Company in compliance with all applicable provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to the extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall reasonably deem necessary to enable each such Holder to tender its Notes.

     (g) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent an election to have its Notes purchased shall have the right to withdraw such election in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof if the Paying Agent receives, not later than 5:00 p.m., New York City time, on

the Designated Event Offer Termination Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes the Holder delivered for purchase, the Note certificate number (if any) and a statement that such Holder is withdrawing his election to have such Notes purchased in whole or in part.

     SECTION 4.07. Appointments to Fill Vacancies in Trustee’s Office . The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder.

     SECTION 4.08. Stay, Extension and Usury Laws . The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter enforced, that may affect the Company’s obligation to pay the Notes; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law insofar as such law applies to the Notes, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

     SECTION 4.09. Taxes . The Company shall, and shall cause each of its subsidiaries to, pay prior to delinquency all taxes, assessments and government levies; provided , however , that the Company shall not be required to pay or cause to be paid any such tax, assessment or levy (A) if the failure to do so will not, in the aggregate, have a material adverse impact on the Company and its subsidiaries taken as a whole, or (B) if the amount, applicability or validity is being contested in good faith by appropriate proceedings.

     SECTION 4.10. Increased Interest Rate .

     (a) If at any time during the six months to one year period following the last original issuance date of the Notes, (i) the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (other than any Current Report on Form 8-K), (ii) the Company has not cured such failure to timely file within 14 days of such failure and (iii) the Notes are not otherwise freely tradable by Holders (other than Holders who are Affiliates of the Company) as a result of restrictions pursuant to the U.S. securities laws or the terms of this Indenture or the Notes, the interest rate in respect of the Notes shall be increased by 0.25% per annum for the first 90 days of such period following such failure to file and by 0.50% per annum after the first 90 days of the period (in either case, ending on the date that is one year from the Issue Date of the Notes) for which such failure to file continues.

     (b) Unless:

     (i) the Restricted Securities Legend on the Notes (other than the Affiliate Notes) has been removed, and

     (ii) the Notes (other than the Affiliate Notes) are freely tradable pursuant to Rule 144 under the Securities Act without volume restrictions by Holders other than

Affiliates of the Company (without restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes),

as of the 365th day after the date of original issuance of the Notes, either (x) the interest rate on the Notes (other than the Affiliate Notes, unless and until such time as such Notes are transferred to a Person that is not an Affiliated Entity) will be increased by 0.25% per annum for the first 90 days of such period and by 0.50% per annum after the first 90 days of the period until the foregoing requirements are satisfied or (y) if the Company elects, the Company shall no later than the 410th day after the Issue Date (or, if at that time the Company is a “well known seasoned issuer” as defined in Rule 405 under the Securities Act, the 385th day after such date) file and maintain effective a resale registration statement relating to the Notes and the shares of Common Stock issuable on conversion thereof (the “ Shelf Registration Statement ”); provided that if the Company elects to file a Shelf Registration Statement pursuant to clause (y) above, the interest rate on such Notes will not increase following the 365th day after the date of original issuance of the Notes but shall instead increase as provided in clause (x) if such Shelf Registration Statement has not become effective within the time period specified in such clause (y).

(c) (i) In the event the Company elects to file a Shelf Registration Statement, the Company shall use its commercially reasonable efforts to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by Holders until the earliest of (i) the date the Restricted Securities Legend has been removed from all Non-Affiliate Notes, (ii) all Non-Affiliate Notes bearing a Restricted Securities Legend have ceased to be outstanding (whether as a result of redemption, repurchase and cancellation, conversion or otherwise), (iii) all Non-Affiliate Notes registered under the Shelf Registration Statement have been sold and (iv) April 1, 2011 (the “ Effectiveness Period ”).

     (ii) The Company may suspend the use of any prospectus forming a part of the Shelf Registration Statement, without incurring or accruing any obligation to pay additional interest pursuant to Section 4.10(b), for a period not to exceed 45 calendar days in any three-month period, or an aggregate of 90 calendar days in any twelve-month period, if the Board of Directors of the Company shall have determined in good faith that because of valid business reasons (not including avoidance of the Company’s obligations hereunder), including without limitation proposed or pending corporate developments and similar events or because of filings with the Commission, it is in the best interests of the Company to suspend such use, and prior to suspending such use the Company provides the Holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. Each Holder shall keep confidential any communications received by it from the Company regarding the suspension of the use of the Shelf Registration Statement and prospectus forming a part thereof, except as required by applicable law.

     (iii) Subject to the Company’s right to suspend the use of the Shelf Registration Statement and the prospectus forming a part thereof as set forth above, in the event that (A) the Shelf Registration Statement ceases to be effective during the Effectiveness Period, (B) the Holders of Non-Affiliate Notes are not authorized to use the

Shelf Registration Statement or the prospectus forming a part thereof or (B) the Holders of Non-Affiliate Notes are otherwise prevented or restricted by the Company from effecting sales pursuant to the Shelf Registration Statement (an “ Effective Failure ”) for more than 45 days, whether or not consecutive, in any three-month period, or for more than 90 days, whether or not consecutive, during any twelve-month period, then the Company shall pay additional interest to Holders as set forth in the Section 4.10(b) as though no Shelf Registration Statement had been declared effective, commencing on the date of the Effective Failure to but excluding the earlier of the date such Effective Failure is cured, waived or otherwise ceases to exist and the last day of the Effectiveness Period. The payment of additional interest shall be the sole remedy of the Holders for any Effective Failure or any other failure of the Company to comply with this Section 4.10(c) and no such Effective Failure or other failure shall constitute a Default or Event of Default.

     (d) So long as a condition described in either paragraph (a) or (b) of this Section 4.10 continues or the Company is required to pay additional interest pursuant to paragraph (c) of this Section 4.10, the Company shall pay such additional interest in cash on April 15 and October 15 of each year to the Person who is the Holder of record of the Notes on the immediately preceding April 1 and October 1. When such condition ceases to continue, any accrued but unpaid additional interest through the date of cessation shall be paid to the record Holder on the subsequent Interest Payment Date.

     SECTION 4.11. Additional Interest Notice . In the event that the Company is required to pay additional interest to Holders of Securities pursuant to Sections 4.10 or 6.02(b) hereof, the Company shall provide a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent, the Paying Agent) of the Company’s obligation to pay such additional interest no later than three Business Days prior to date on which any such additional interest is scheduled to be paid. Such notice shall set forth the amount of additional interest to be paid by the Company on such payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment to the extent it receives funds from the Company to do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether additional interest is payable, or with respect to the nature, extent, or calculation of the amount of additional interest owed, or with respect to the method employed in such calculation of additional interest.

ARTICLE V

SUCCESSORS

     SECTION 5.01. When the Company May Merge, Etc . The Company may not, in a single transaction or series of related transactions, consolidate or merge or combine with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to, any corporation as an entirety or substantially as an entirety unless:

     (a) either:

   (i) the Company shall be the surviving or continuing corporation or

   (ii) the corporation formed by or surviving any such consolidation or merger or combination (if other than the Company) or the corporation which acquires by sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and assets of the Company

   (1) shall be a corporation organized and validly existing under the laws of the United States or any State thereof or the District of Columbia and

   (2) shall expressly assume the due and punctual payment of the principal of, and interest on all the Notes and the performance of every covenant of the Company under the Notes and the Indenture, including, without limitation, modifications to rights of holders to cause the repurchase of Notes upon a Designated Event in accordance with Section 4.06(e) and conversion rights in accordance with Section 12.06 to the extent required by such Sections, pursuant to a supplemental indenture;

     (b) immediately after giving effect to such transaction no Default and no Event of Default exists; and

     (c) the Company or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, combination, sale, assignment, disposition, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this provision of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.

     (d) For purposes of this Section 5.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.

     SECTION 5.02. Successor Corporation Substituted . Upon any such consolidation, merger, sale, assignment, conveyance, lease, transfer or other disposition in accordance with Section 5.01, the successor corporation formed by such consolidation or into which the Company is merged or to which such sale, assignment, conveyance, lease, transfer or other disposition is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company therein, and thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other disposition) the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.

     SECTION 5.03. Purchase Option on Change of Control . This Article V does not affect the obligations of the Company (including without limitation any successor to the Company) under Section 4.06.

ARTICLE VI

DEFAULTS AND REMEDIES

     SECTION 6.01. Events of Default . An “Event of Default” with respect to any Notes occurs if:

     (a) the Company defaults in the payment of principal of the Notes when due at maturity, upon repurchase, upon acceleration or otherwise, whether or not such payment is prohibited by the subordination provisions set forth in Article XI of this Indenture; or

     (b) the Company defaults in the delivery when due of all Common Stock deliverable upon conversion with respect to the Notes, which default continues for five days; or

     (c) the Company defaults in the payment of any installment of interest on the Notes when due, whether or not such payment is prohibited by the subordination provisions set forth in Article XI of this Indenture, including any interest payable in connection with a repurchase pursuant to Section 4.06 or pursuant to Section 4.10, and continuance of such default for 30 days or more; or

     (d) the Company defaults (other than a default set forth in clauses (a), (b) and (c) above and clauses (e) and (f) below) in the performance of, or breaches, any other covenant of the Company set forth in this Indenture or the Notes and fails to remedy such default or breach within a period of 60 days after the receipt of written notice (“ Notice ”) from the Trustee or the Holders of either (i) at least 25% in aggregate principal amount of the then outstanding Non-Affiliate Notes or (ii) a 50% Affiliated Holder; or

     (e) the Company defaults in the payment of the Designated Event Payment in respect of the Notes on the Designated Event Payment Date, whether or not such payment is prohibited by the subordination provisions set forth in Article XI of this Indenture; or

     (f) the Company fails to provide timely notice of any Designated Event in accordance with Section 4.06 hereof; or

     (g) failure of the Company or failure of any Material Subsidiary to make any payment at maturity, including any applicable grace period, in respect of indebtedness for borrowed money of, or guaranteed or assumed by, the Company or any Material Subsidiary, which payment is in an amount in excess of $20,000,000, and continuance of such failure for 30 days after the receipt of Notice; or

     (h) default by the Company or default by any Material Subsidiary with respect to any indebtedness referred to in clause (g) above, which default results in the acceleration of any such indebtedness of an amount in excess of $20,000,000 without such indebtedness having been paid or discharged or such acceleration having been cured, waived, rescinded or annulled for 30 days after the receipt of Notice; or

     (i) the Company or any Material Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:

     (i) commences a voluntary case,

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

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

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

     (v) makes the admission in writing that it generally is unable to pay its debts as the same become due; or

     (j) a court of competent jurisdiction enters a judgment, order or decree under any Bankruptcy Law that:

     (i) is for relief against the Company or any Material Subsidiary in an involuntary case,

     (ii) appoints a Custodian of the Company or any Material Subsidiary, and the order or decree remains unstayed and in effect for 90 days, or

     (iii) orders the liquidation of the Company or any Material Subsidiary, and the order or decree remains unstayed and in effect for 90 days.

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

     SECTION 6.02. Acceleration . (a) If an Event of Default (other than an Event of Default with respect to the Company specified in clauses (i) and (j) of Section 6.01) occurs and is continuing, then and in every such case (i) the Trustee, by written notice to the Company, (ii) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes that are not held by an Affiliated Entity, by written notice to the Company and the Trustee, or (iii) any Affiliated Entity that beneficially owns at least 50% in aggregate principal amount of the then-outstanding Notes (a “ 50% Affiliated Holder ”), by written notice to the Company and the Trustee, may declare the unpaid principal of, and accrued and unpaid interest, if any, on all the Notes to be due and payable. Upon such declaration such principal amount, and accrued and unpaid interest, if any, shall become immediately due and payable, notwithstanding anything contained in this Indenture or the Notes to the contrary, but subject to the provisions of Article XI hereof. If any Event of Default with respect to the Company specified in clauses (i) or (j) of Section 6.01 occurs, all unpaid principal of and and accrued and unpaid interest, if any, on the Notes then outstanding shall become automatically due and payable subject to the provisions of Article XI hereof, without any declaration or other act on the part of the Trustee or any Holder.

     The Holders of a majority in aggregate principal amount of the then outstanding Notes that are not held by an Affiliated Entity, by notice to the Trustee, may rescind an acceleration of the Notes initiated by (i) the Trustee or (ii) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes that are not held by an Affiliated Entity, and its consequences if all existing Events of Default (other than nonpayment of principal of or and interest, if any, on the Notes which has become due solely by virtue of such acceleration) have been cured or waived and if the rescission would not conflict with any judgment or decree of any court of competent jurisdiction. Any Affiliated Entity that beneficially owns at least 50% in aggregate principal amount of the then-outstanding Notes may similarly rescind any acceleration of the Notes initiated by a 50% Affiliated Holder, and the consequences of such acceleration, if all existing Events of Default (other than nonpayment of principal of or interest on the Notes which has become due solely by virtue of such acceleration) have been cured or waived and if the rescission would not conflict with any judgment or decree of any court of competent jurisdiction. No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereto.

     (b) Notwithstanding any other provision in this Article VI, if the Company breaches its obligation to file or furnish reports or other financial information pursuant to Section 314(a) of the TIA or as otherwise required under this Indenture, the Company shall be required to pay additional interest on the Notes, and the Holders will not have any immediate right under the Indenture to accelerate the maturity of the Notes as a result of any such breach. If any such breach continues for 60 days after notice thereof is given in accordance with the Indenture, the Company will pay additional interest to all Holders at a rate per annum equal to 0.50% per annum to but not including the 180th day following such notice (or such earlier date on which the Event of Default relating to the reporting obligations referred to in this Section 6.02(b) shall have been cured or waived). On such 180th day, such additional interest will cease to accrue (or earlier, if the Event of Default relating to the reporting obligations referred to in this Section 6.02(b) shall have been cured or waived prior to such 180th day) and, if the Event of Default is continuing on such 180th day, the Notes will be subject to acceleration as provided in Section