NOVA BIOSOURCE FUELS, INC., THE GUARANTORS LISTED HEREIN, NOVA HOLDING SENECA LLC, AND THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee

Exhibit 4.2

NOVA BIOSOURCE FUELS, INC.,

THE GUARANTORS LISTED HEREIN,

NOVA HOLDING SENECA LLC,

AND

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

as Trustee

INDENTURE

Dated as of September 28, 2007

10% CONVERTIBLE SENIOR SECURED NOTES DUE 2012

TABLE OF CONTENTS

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INDENTURE dated as of September 28, 2007 between Nova Biosource Fuels, Inc., a Nevada corporation (including any successors or assigns, the “Company”), the Guarantors (as defined below), Nova Holding Seneca LLC, a Delaware limited liability company (“Seneca”), and The Bank of New York Trust Company, N.A., a national banking association, as trustee (the “Trustee”).

The Company, the Guarantors, Seneca (solely for purposes of the covenant contained in Section 5.23) and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the 10% Convertible Senior Secured Notes due 2012 (including all 10% Convertible Senior Secured Notes issued in exchange, transfer or replacement hereof, the “Notes”):

ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01.                                                 Definitions.

“Acquired Debt” means, with respect to any specified Person, (i) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien encumbering any real property or fixed assets acquired by such specified Person.

“Additional Interest” means all liquidated damages then owing pursuant to Section 2(c) of the Registration Rights Agreement and all other interest owing on the Notes pursuant to this Indenture, including, but not limited to, pursuant to Section 2.12 of this Indenture and paragraph 1. “Interest” of the Form of Note attached as Exhibit A hereto (the “Form of Note”). References in this Indenture and in the Notes to the “interest” accrued or payable on the Notes shall be deemed to include any Additional Interest and Special Interest that may become accrued or payable thereon pursuant to the terms of this Indenture, the Notes and the Transaction Documents unless the context otherwise requires.

“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 Indenture, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, that, solely for the purposes of this definition of “Affiliate,” beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control. Notwithstanding the foregoing, no Holder shall be deemed, for purposes of this Indenture, to be an Affiliate of the Company or any of its Subsidiaries solely by reason of holding the Notes.

“After-Acquired Property” means all assets and property acquired by the Company or any Guarantor after the date of this Indenture.

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

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

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. For purposes of this definition, “Beneficially Owns” and “Beneficially Owned” shall have a correlative meaning.

“Board of Directors” means:

(i)                                     with respect to a corporation, the board of directors of the corporation or any committee ▇▇▇▇▇▇▇ ▇▇▇▇ authorized to act on behalf of such board;

(ii)                                  with respect to a partnership, the Board of Directors of the general partner of the partnership;

(iii)                               with respect to a limited liability company, the managing member or members, the manager or any controlling committee or board of managers or managing members thereof; and

(iv) with respect to any other Person, the board or committee of such Person serving a similar function.

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

“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

“Capital Stock” means:

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

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

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

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

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“Capitalized Interest” means interest due on the Notes pursuant to Section 14.02(a) that has been capitalized by adding it to the outstanding Principal Amount of the Notes at the Company’s election pursuant to Section 14.02(c) of this Indenture.

“Cash Equivalents” means:

(i)                                     United States dollars,

(ii)                                  securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided, that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than six months from the date of acquisition;

(iii)                               certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case with any domestic commercial bank having capital and surplus in excess of $500,000,000 and a ▇▇▇▇▇▇▇▇ Bank Watch Rating of “B” or better;

(iv)                              repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (ii) and (iii) above entered into with any financial institution meeting the qualifications specified in clause (iii) above;

(v)                                 commercial paper having the highest rating obtainable from either ▇▇▇▇▇’▇ or Standard & Poor’s, in each case, maturing within six months after the date of acquisition;

(vi)                              AAA-rated taxable securities having maturities of not more than six months including, but not limited to, auction rate securities and variable rate demand notes (for securities where the interest rate resets via a “dutch auction” or “put” mechanism, the auction date or put date will be used to determine the maturity date);

(vii)                           U.S. corporate bonds or notes with maturities of not more than six months and having a minimum long-term credit rating of “A2” by ▇▇▇▇▇’▇ and “A” by Standard & Poor’s; and

(viii)                        money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (i) through (vii) of this definition.

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

(a)                                  any “person” becomes the “beneficial owner” (as these terms are defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s Capital Stock that is at the time entitled to vote by the holder thereof in the election of the Board of Directors (or comparable body); or

(b)                                 the first day on which a majority of the members of the Board of Directors are not Continuing Directors; or

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(c)                                  the adoption of a plan relating to the liquidation or dissolution of the Company; or

(d)                                 the consolidation or merger of the Company with or into any other Person, or the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the Company’s assets and those of its subsidiaries taken as a whole to any “person” (as this term is used in Section 13(d)(3) of the Exchange Act), other than:

(i)                                     any transaction pursuant to which the holders of 50% or more of the total voting power of all shares of the Company’s Capital Stock entitled to vote generally in elections of directors of the Company immediately prior to such transaction have the right to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Company’s Capital Stock entitled to vote generally in elections of directors of the continuing or surviving Person (or any parent thereof) immediately after giving effect to such transaction; or

(ii)                                  any merger primarily for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity; or

(e)                                  the termination of trading of the Common Stock, which will be deemed to have occurred if the Common Stock or other common equity interests into which the Notes are convertible is neither listed for trading on a United States national securities exchange nor approved for listing on any United States system of automated dissemination of quotations of securities prices.

However, a Change of Control will be deemed not to have occurred if more than 90% of the consideration in the transaction or transactions (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) which otherwise would constitute a Change of Control under clauses (a) or (d) above consists of shares of common stock, depositary receipts or other certificates representing common equity interests traded or to be traded immediately following such transaction on an Eligible Market, and, as a result of the transaction or transactions, the obligations of the Company under the Notes are expressly assumed by the person issuing such consideration in such transaction or transactions and the Notes become convertible into such common stock, depositary receipts or other certificates representing common equity interests.

“Closing Sale Price” of any share of Common Stock or any other security on the Trading Day means the last closing trade price for such security on the principal United States securities market on which such security is traded (which is currently the American Stock Exchange in respect of the Common Stock) as reported by Bloomberg Financial Markets (or any successor thereto, “Bloomberg”), or, if such exchange begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may be, then the last bid price or last trade price, respectively, of such exchange prior to 4:00:00 p.m. (New York City time) as reported by

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Bloomberg, or, if such exchange is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the highest bid prices and the lowest ask prices of any market makers for such security in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Price of such security on such date shall be the fair market value as determined by the Company and the Majority Holders.

“Collateral” shall have the same meaning as Pledged Collateral.

“Collateral Agent” shall have the meaning set forth in the Security Agreement.

“Collateral Documents” means the Security Agreement and the other agreements, documents, or instruments, including any financing statements, and any amendments or supplements thereto, creating, perfecting, or evidencing any Liens securing the Notes, the Note Guarantees and any other Obligation under this Indenture or the Collateral Documents.

“Common Stock” means the Common Stock of the Company, par value $0.001 per share, as it exists on the date of this Indenture and any shares of any class or classes of Capital Stock of the Company resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company and which are not subject to redemption by the Company; provided, however, that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable on conversion of the Notes shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

“Company” means Nova Biosource Fuels, Inc., a Nevada corporation, and any and all successors thereto in accordance with this Indenture, and thereafter “Company” shall mean such successor Company.

“Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus or minus, as applicable, without duplication:

(1)                                  an amount equal to any extraordinary loss plus any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; plus

(2)                                  provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(3)                                  the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

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(4)                                  depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; minus

(5)                                  non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,

in each case, on a consolidated basis and determined in accordance with GAAP.

Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation, amortization and other non-cash expenses of, a Restricted Subsidiary of the Company will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company only to the extent that a corresponding amount would be permitted at the date of determination to be dividended or distributed to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.

“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(1)                                  the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

(2)                                  the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

(3)                                  the cumulative effect of a change in accounting principles will be excluded;

(4)                                  the Net Income of any Person acquired during the specified period for any period prior to the date of acquisition will be excluded; and

(5)                                  notwithstanding clause (1) above, the Net Income of any Unrestricted Subsidiary will be excluded, whether or not distributed to the specified Person or one of its Subsidiaries.

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

“Corporate Trust Office of the Trustee” shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇^▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention: Corporate Trust Services, or such other address as to which the Trustee may give notice to the Company.

“Credit Facilities” means, one or more debt facilities or commercial paper facilities, in each case, 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 (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.

“Credit Parties” means collectively, the Company, each Guarantor and ▇▇▇▇▇▇.

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

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

“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 of the Capital Stock), 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 of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will 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 unless such repurchase or redemption complies with Section 5.07 of this Indenture. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of hereof shall be the maximum amount that the Company and its Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

“Eligible Market” means The New York Stock Exchange, Inc., the American Stock Exchange, The NASDAQ Global Market, The NASDAQ Global Select Market or The NASDAQ Capital Market.

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“Equity Conditions” means each of the following conditions:  (i) on each day during the period beginning ninety (90) days prior to the applicable date of determination and ending on and including the applicable date of determination (the “Equity Conditions Measuring Period”), the Common Stock is designated for quotation on an Eligible Market and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than two (2) days and occurring prior to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by such exchange or market been threatened or pending either (A) in writing by such Eligible Market or (B) by falling below the then effective minimum listing maintenance requirements of such exchange or market; (ii) during the Equity Conditions Measuring Period, the Notes and all shares of Common Stock issuable upon conversion of the Notes shall be eligible for sale without restriction pursuant to an effective registration statement under the Registration Rights Agreement, other than any restrictions on sale imposed on any Holder by virtue of such Holder being an affiliate of the Company; (iii) during the Equity Conditions Measuring Period, the Company shall have delivered shares of Common Stock upon conversion of the Notes to the Holders on a timely basis on the applicable Share Delivery Due Date; and (iv) during the Equity Conditions Measuring Period, there shall not have occurred either (A) the public announcement of a pending, proposed or intended Fundamental Transaction which has not been abandoned, terminated or consummated, or (B) a Default or Event of Default.

“Equity Conditions Failure” means that (i) on any day during the period commencing ten (10) Trading Days prior to the applicable Interest Notice Date through the applicable Interest Payment Date, or (ii) on any day during the period commencing ten (10) Trading Days prior to the applicable Optional Redemption Notice through the applicable Optional Redemption Date, the Equity Conditions have not been satisfied (or waived in writing by each Holder).

“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).

“Event of Loss” means any loss of, destruction of or damage to, or any condemnation or other governmental taking of any property of the Company or any of its Subsidiaries in any single occurrence or series of related occurrences that involves assets having a Fair Market Value of at least $1.0 million in the aggregate.

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

“Excluded Securities” means (i) equity or equity-linked securities issued to employees, officers or directors of the Company pursuant to any stock, option or incentive compensation plan approved and adopted by the Board of Directors of the Company, (ii) shares of Capital Stock issued upon conversion or exercise of equity-linked securities outstanding on the Issue Date and as in effect on the Issue Date or issued under clause (i) above, provided that the terms of such equity or equity-linked securities are not amended, modified or changed on or after the Issue Date, and (iii) shares of Common Stock issuable upon conversion of the Notes.

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“Existing Indebtedness” means Indebtedness of the Company and its Subsidiaries in existence on the date of this Indenture and set forth on Schedule 3.1 (gg) of the Securities Purchase Agreement, until such amounts are repaid.

“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of the Company (unless otherwise provided in this Indenture).

“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “calculation date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

(1)                                  acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the calculation date will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period;

(2)                                  the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the calculation date, will be excluded;

(3)                                  the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the calculation date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the calculation date;

(4)                                  any Person that is a Restricted Subsidiary on the calculation date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

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(5)                                  any Person that is not a Restricted Subsidiary on the calculation date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and

(6)                                  if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the calculation date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the calculation date in excess of 12 months).

“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:

(1)                                  the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interests rates; plus

(2)                                  the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

(3)                                  any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus

(4)                                  the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP.

“GAAP” means generally accepted accounting principles in the United States of America as in effect as of the date of this Indenture, including those set forth in (1) the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, (2) the statements and pronouncements of the Financial Accounting Standards Board, (3) such other statements by such other entity as approved by a significant segment of the accounting profession and (4) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in registration statements filed under the Securities Act and periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC.

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“Global Notes” means one or more Notes in global form registered in the register in the name of a Depositary or a nominee thereof.

“Government Securities” means securities that are direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.

“Guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof), of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities, or services, to take or pay or to maintain financial statement conditions or otherwise).

“Guarantors” means each of Nova Holding Clinton County, LLC and Nova Biofuels Clinton County, LLC, and any other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture, in each case, together with their respective successors and assigns, unless and until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under (i) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements, (ii) other agreements or arrangements designed to manage interest rates or interest rate risk, and (iii) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

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

“Indebtedness” means with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables that are not yet overdue by 30 days), whether or not contingent:

(i)                                     in respect of borrowed money;

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

(iii)                               in respect of banker’s acceptances;

(iv)                              representing Capital Lease Obligations;

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

(vi)                              representing any Hedging Obligations; if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a

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liability upon a balance sheet of the specified Person prepared in accordance with GAAP; or

(vii)                           all Disqualified Stock.

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) and, to the extent not otherwise included, the Guarantee by or other contingent obligation of the specified Person of any Indebtedness of or relating to or arising from any other Person.

“Indenture” means this Indenture, as amended or supplemented from time to time in accordance with its terms.

“Interest” means, when used with reference to the Notes, the sum of (i) any interest accrued and unpaid at the Interest Rate pursuant to Section 14.02(a) hereof, (ii) accrued and unpaid Additional Interest, if any, payable under the terms of the Registration Rights Agreement, (iii) accrued and unpaid Special Interest, if any, pursuant to Section 7.03 hereof, and (iv) accrued and unpaid Late Charges, if any.

“Interest Make-Whole” means with respect to each $1,000 principal amount of Notes, an amount in cash equal to (i) with respect to any conversion prior to the fourth semi-annual Interest Payment Date, the amount of any interest pursuant to Section 14.02(a) that would have accrued with respect to the Principal Amount being converted under this Indenture at the Interest Rate for the period from the applicable Conversion Date through September 30, 2009, and (ii) the amount of any interest pursuant to Section 14.02(a) that, but for the Optional Redemption pursuant to Section 3.07, would have accrued with respect to the Conversion Amount being redeemed under this Indenture at the Interest Rate for the period from the applicable Optional Redemption Date through September 30, 2010.

“Interest Payment Date” means March 31 and September 30 of each year until the Stated Maturity with the first Interest Payment Date being March 31, 2008.

“Interest Rate” means a rate per annum equal to either (i) 10%, for any portion of the Interest that is paid in cash with respect to the applicable interest period paid on the applicable Interest Payment Date or (ii) 12%, for any portion of the Interest that is added as Capitalized Interest pursuant to Section 14.02(c) with respect to the applicable interest period paid on the applicable Interest Payment Date.

“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition

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in such Subsidiary. The acquisition by the Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Company or such Subsidiary in such third Person.

“Issue Date” means the date of the first issuance of Notes under this Indenture.

“Late Charge” means a late charge being incurred and payable by the Company in an amount equal to interest at a rate per annum equal to the sum of 2% and the applicable Interest Rate.

“LC Agent” means, The Bank of New York Trust Company, N.A., until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

“LC Amount” means an amount in cash equal to the aggregate amount sufficient for the Company to fully pay the initial four interest payments on the Notes, with the first such Interest Payment Date being March 31, 2008.

“LC Bank” means the issuer of the Letter of Credit who shall initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc..

“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in The City of New York, the State of Texas or at a place of payment under this Indenture are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment under this Indenture, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period. If a record date is a Legal Holiday, the record date shall not be affected.

“Letter of Credit” means the irrevocable letter of credit in an amount not less than the LC Amount issued on or before the Issue Date by the LC Bank in favor of the LC Agent for the benefit of the Holders, with an expiration date (the “LC Expiration Date”) no earlier than 91 days after September 30, 2009.

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).

“Majority Holders” means the Holders of a majority in aggregate Principal Amount of the Notes at the time outstanding.

“Moody’s” means ▇▇▇▇▇’▇ Investors Services, Inc.

“Net Income” means, with respect to any specified Person, the Net Income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:

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(1)           any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with (a) any Asset Sale or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

(2)           any extraordinary gain (but not loss), together with any related provision for taxes on such extraordinary gain (but not loss).

“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale) or any Event of Loss (including, without limitation, any insurance proceeds in respect thereof), net of

(i)            the direct costs relating to such Asset Sale or Event of Loss, including, without limitation, legal, accounting and investment banking fees, sales commissions, relocation expenses incurred as a result of the Asset Sale or Event of Loss, and taxes paid or payable as a result of the Asset Sale or Event of Loss after taking into account any available tax credits or deductions and any tax sharing arrangements,

(ii)           amounts required to be applied to the repayment of Indebtedness, secured by a Lien on the asset or assets of higher priority than the Lien securing the Notes or the Note Guarantees that were the subject of such Asset Sale or Event of Loss, and

(iii)          any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.

“Non-Recourse Debt” means Indebtedness:

(1)           as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;

(2)           no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity; and

(3)           as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.

“Non-Stock Change of Control” means a transaction described under clause (a) or clause (d) in the definition of Change of Control pursuant to which 10% or more of the consideration for Common Stock (other than cash payments for fractional shares, if applicable, and cash payments made in respect of dissenters’ appraisal rights) in such transaction consists of cash or securities (or other property) that are not shares of common stock, depositary receipts or other

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certificates representing common equity interests traded or scheduled to be traded immediately following such transaction on an Eligible Market and into which the Notes are convertible pursuant to the assumption of the obligations under the Notes by the person issuing such consideration in such transaction.

“Note Guarantee” means the Guarantee by each Guarantor of the Company’s payment obligations under this Indenture.

“Notes” has the meaning assigned to it in the preamble to this Indenture.

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

“Offering” means the offering of the Notes by the Company.

“Officer” means, with respect to any Person, the Chair of the Board, the Vice Chair of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.

“Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Sections 15.04 and 15.05 hereof.

“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Sections 15.04 and 15.05 hereof. The counsel may be internal or external counsel to the Company or counsel to the Trustee.

“Permitted Business” means (i) the research, development, design, engineering, procurement, construction, ownership, operation and maintenance of biodiesel and related feedstock, co-product and derived products production technology, equipment, refineries, storage, transfer, loading, unloading, blending and transportation facilities, (ii) the production, refining, purification, blending, storage, transfer, handing, transportation, purchasing, marketing and sale of biodiesel, biodiesel feedstocks, related co-products and derived products, (iii) the ownership, cultivation, production, extraction, processing, purification, blending, storage, transfer, handling, transportation, purchasing, marketing and sale of biodiesel and other renewable energy feedstocks and consumables, (iv) the purchase, sale, investment and ownership of commodities, futures, forwards, contracts, swaps, derivatives, credits, securities and other instruments related to biodiesel, petroleum, refined energy products, energy, feedstocks, comsumables, biodiesel co-products and derived products, and facilities and equipment construction, procurement and fabrication, (v) the provision of consulting, management, research, development, design, engineering, procurement and construction services with respect to biodiesel and other renewable or alternative energy sources and related feedstocks, co-products and derived products, and (vi) any reasonable extensions and complementary businesses thereto.

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“Permitted Investments” means:

(i)            any Investment in the Company or in a Restricted Subsidiary of the Company;

(ii)           any Investment in Cash Equivalents;

(iii)          any Investment by the Company or any Subsidiary of the Company in a Person, if as a result of such Investment: (a) such Person becomes a Restricted Subsidiary of the Company; or (b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;

(iv)          any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 5.10 hereof;

(v)           any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

(vi)          any Investments received in compromise or resolution of litigation, arbitration or other disputes;

(vii)         Investments represented by Hedging Obligations;

(viii)        Guarantees by the Company of Permitted Project Debt during the construction phase prior to final acceptance (as determined by the Project lender in accordance with the credit agreement governing such Permitted Project Debt) of the applicable Project or Projects, as the case may be in an aggregate amount at any time outstanding not to exceed the lesser of (i) 80% of the amount equal to $1.50 (or such higher amount as proportionately adjusted by increases in Chemical Engineering’s CE Plant Cost Index from and after the Issue Date) per gallon per year of nameplate biodiesel production capacity with respect to each such Project under construction and (ii) $162.0 million;

(ix)           Investments by the Company in Seneca made with the net proceeds of the offering of the Notes pursuant to the Securities Purchase Agreement; and

(x)            repurchases of the Notes, including the related Note Guarantees in accordance with the terms of this Indenture.

“Permitted Liens” means:

(i)            Liens on feedstock, inventory, supplies, consumables and other assets securing Indebtedness permitted to be incurred pursuant to clause (i) of the definition of “Permitted Debt”;

(ii)           Liens securing Existing Indebtedness permitted to be incurred pursuant to clause (ii) of the definition of “Permitted Debt”;

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(iii)          Liens securing or to secure in the future Indebtedness and other Obligations under this Indenture, the Notes and the Note Guarantees, permitted to be incurred pursuant to clause (iii) of the definition of “Permitted Debt”;

(iv)          Liens on property, plant or equipment securing Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations permitted to be incurred pursuant to clause (v) of the definition of “Permitted Debt”;

(v)           Liens contemplated and permitted by Section 5.23;

(vi)          Liens in favor of the Company or any Guarantor;

(vii)         Liens to secure the performance of statutory obligations, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

(viii)        Liens for taxes, assessments or charges, claims or other obligations owed to governmental or quasi-governmental authorities that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

(ix)           Liens imposed by law, such as carriers’, warehousemen’s, materialmans’, landlord’s and mechanics’ Liens, in each case, incurred in the ordinary course of business and securing obligations that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as if required in conformity with GAAP has been made therefor; and

(x)            survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with and do not secure Indebtedness and that do not, individually or in the aggregate, materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person.

“Permitted Project Debt” means any Indebtedness (which is not exchangeable into Common Stock or involve in any manner the issuance of any security convertible into or exchangeable or exercisable for Common Stock) of one or more Unrestricted Subsidiaries (including at all times Seneca and the Seneca Project Entity) issued or incurred with one or more commercial banks or other financial institutions to finance or facilitate the purchase, acquisition, engineering, procurement, construction, commissioning, operation, expansion and improvement and related capital expenditures and working capital funding of one or more Projects that are in Permitted Businesses and that is secured by, or subject to a lease of, in whole or in part, the assets or property owned or used by one or more Unrestricted Subsidiaries owning, leasing or operating such Project or Projects.

“Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew,

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refund, refinance, replace, defease or discharge other Permitted Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that

(i)            the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);

(ii)           such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;

(iii)          if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and

(iv)          such Indebtedness is incurred either by the Company or by the Subsidiary who is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, or government or other entity.

“Physical Note” means permanent certificated Note in registered form issued in denomination of $1,000 principal amount and integral multiples thereof.

“Pledged Collateral” means any assets of the Company or any Guarantor or any other Person defined as “Pledged Collateral” or “Collateral” in any Collateral Document.

“Principal” or “Principal Amount” means, when referring to the principal or principal amounts of any Note, as set forth on the face of the Note as such amount may be (i) reduced by any conversions, redemptions or otherwise pursuant hereto and (ii) increased by the amount of any Capitalized Interest thereon pursuant to the terms of this Indenture.

“Pro Rata Amount” means, with respect to any Holder, a fraction, the numerator of which is the aggregate principal amount of Notes held by such Holder and the denominator of which is the aggregate principal amount of Notes outstanding.

“Projects” means one or more refineries, facilities, plants or other assets or property, other than the assets of Clinton County Bio Energy L.L.C., an Iowa limited liability company, that is in a Permitted Business.

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“Public Acquirer Change of Control” means a Non-Stock Change of Control in which the (a) acquirer has a class of common stock (or depositary receipts or shares in respect thereof) traded on an Eligible Market or that shall be so traded or quoted when issued or exchanged in connection with such Non-Stock Change of Control (the “Public Acquirer Common Stock”), (b) the Public Acquirer Common Stock that the Notes are convertible into are registered under the Exchange Act; and (c) the Public Acquirer Common Stock that the Notes are convertible into are registered or exempt from registration under the Securities Act and are freely tradeable without restrictions under the Securities Act and any necessary qualification or registration under applicable state securities laws have been made (subject to the availability of any exemption from such qualification and registration requirements). If an acquirer does not itself have a class of common stock (or depositary receipts or shares in respect thereof) satisfying the foregoing requirement, it shall be deemed to have Public Acquirer Common Stock (or depositary receipts or shares in respect thereof) if a corporation that directly or indirectly owns at least a majority of the acquirer has a class of common stock (or depositary receipts or shares in respect thereof) satisfying the foregoing requirement, provided that such majority-owning corporation fully and unconditionally guarantees the Notes, in which case all references to Public Acquirer Common Stock shall refer to such class of common stock (and the Note shall be convertible into such class of common stock). Majority owned for these purposes means having “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of all shares of the respective entity’s capital stock that are entitled to vote generally in the election of directors.

“Public Acquirer Common Stock” has the meaning specified in the definition of Public Acquirer Change of Control.

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

“Redemption Dates” means, collectively, the Event of Default Redemption Date, Change of Control Redemption Date, the Excess Proceeds Redemption Date, the Holder Optional Redemption Date and the Optional Redemption Date, each of the foregoing, individually, a Redemption Date.

“Redemption Prices” means, collectively, the Event of Default Redemption Price, Change of Control Redemption Price, the Excess Proceeds Redemption Price, Holder Optional Redemption Price and the Optional Redemption Price, each of the foregoing, individually, a Redemption Price.

“Registration Rights Agreement” means the Registration Rights Agreement dated as of the date of this Indenture among the Company and the purchasers of the Notes identified therein, as such agreements may be amended, modified or supplemented from time to time in accordance with their terms.

“Regulation S” means Regulation S promulgated under the Securities Act (or any successor provision promulgated by the SEC).

“Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant vice president, assistant treasurer, trust officer or any other officer within the Corporate

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Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“Restricted Investment” means any Investment other than a Permitted Investment.

“Restricted Subsidiary” means any Subsidiary of the Company which at the time of determination is not an Unrestricted Subsidiary. Initially, the Restricted Subsidiaries of the Company shall be the Guarantors.

“Rule 144” means Rule 144 promulgated under the Securities Act (or any successor provision promulgated by the SEC).

“Rule 144A” means Rule 144A promulgated under the Securities Act (or any successor provision promulgated by the SEC).

“SEC” means the Securities and Exchange Commission.

“Secured Indebtedness” means any Permitted Indebtedness secured by assets of the Company other than the Collateral.

“Securities Act” means the Securities Act of 1933, as amended.

“Securities Purchase Agreement” means the Securities Purchase Agreement dated as of the date of this Indenture among the Company and the purchasers of the Notes identified therein, as such agreements may be amended, modified or supplemented from time to time in accordance with their terms.

“Security Agreement” means the Security Agreement dated as of the date of this Indenture by and among the Company, the Guarantors, the Trustee and the Collateral Agent, as such agreement may be amended, modified or supplemented from time to time in accordance with its terms and with this Indenture.

“Seneca Plant” means the biodiesel refinery under construction at the Shipyard Industrial Park, Village of Seneca, State of Illinois, which is designed to produce approximately sixty (60) million gallons-per-year of biodiesel, and all auxiliary and other facilities constructed or to be constructed by or on behalf of the Seneca Project Entity, together with all fixtures and improvements thereto, and all other real property, easements and rights-of-way held by or on behalf of the Seneca Project Entity and all rights to use easements and rights-of-way of others.

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article I, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.

“Standard & Poor’s” means Standard & Poor’s Corporation.

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“Stated Maturity” when used in respect of any Note, means the date specified in such Note as the fixed date on which an amount equal to the Principal of such Note together with accrued and unpaid Interest, and any other amounts accrued and unpaid hereunder if any, is due and payable.

“Subsidiary” means, with respect to any specified 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 and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

(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 that Person or one or more Subsidiaries of that Person (or any combination thereof).

“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under the TIA.

“Trading Day” means:

(i)            if the Common Stock is listed or admitted for trading on any national or regional securities exchange, days on which such national or regional securities exchange is open for business; or

(ii)           if the Common Stock is quoted on any system of automated dissemination of quotations of securities prices, days on which trades may be effected through such system; and

(iii)          if the Common Stock is not listed on a national or regional securities exchange or quoted on any system of automated dissemination of quotation of securities prices, days on which the Common Stock is traded regular way in the over-the-counter market and for which a closing bid and a closing asked price for the Common Stock are available.

“Transaction Documents” means this Indenture, the Notes, the Note Guarantees, the Collateral Documents, the Securities Purchase Agreement and the Registration Rights Agreement.

“Trustee” means The Bank of New York Trust Company, N.A., until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

“UCC” means the Uniform Commercial Code as in effect in the State of New York or any other applicable jurisdiction.

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“Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary on the date of designation:

(1)           has no Indebtedness other than Non-Recourse Debt;

(2)           except as permitted by the covenant Section 5.11, is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

(3)           is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

(4)           has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries.

Initially, notwithstanding the foregoing, the Unrestricted Subsidiaries of the Company shall be all of the Subsidiaries of the Company (and their respective Subsidiaries) other than the Restricted Subsidiaries (or their future Subsidiaries) as of the Issue Date.

The Board of Directors may designate any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated, provided that:

(i)            the Company certifies to the Trustee that such designation complies with Sections 5.07 and 5.19; and

(ii)           each Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any of its Restricted Subsidiaries.

The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if:

(i)            immediately after giving effect to such designation, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 5.09; and

(ii)           immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing.

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Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the board resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

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

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:  (a) the sum of the products obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment, by (b) the then outstanding principal amount of such Indebtedness.

“Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price for such security on the principal market or exchange on which such security is traded during the period beginning at 9:30:01 a.m., New York City time (or such other time as such principal market or exchange publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York City time (or such other time as such principal market or exchange publicly announces is the official close of trading) as reported by Bloomberg through its “Volume at Price” functions, or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York City time (or such other time as such market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York City time (or such other time as such market publicly announces is the official close of trading) as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Weighted Average Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company and the Majority Holders. All such determinations are to be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period. For the avoidance of doubt in no event shall the Trustee or Conversion Agent have any responsibility to either obtain or monitor such prices.

Section 1.02.                Other Definitions.

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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:

“indenture securities” means the Notes and the Note Guarantees;

“indenture security Holder” means a Holder of a Note;

“indenture to be qualified” means this Indenture;

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

“obligor” on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.

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

Section 1.04.                Rules of Construction.

Unless the context otherwise requires:

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

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

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(c)           “or” is not exclusive;

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

(e)           provisions apply to successive events and transactions; and

(f)            references to sections of or rules under the TIA, the Securities Act or the Exchange Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.

ARTICLE 2.
THE NOTES

Section 2.01.                Title, Terms, Form and Dating.

The Notes shall be known and designated as the “10% Convertible Senior Secured Notes Due 2012” of the Company. The Principal Amount shall be payable on the Stated Maturity or on an applicable Redemption Date or as otherwise provided under this Indenture.

The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto (the “Form of Note”). The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof.

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors 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.

Section 2.02.                Execution and Authentication.

Two Officers shall sign the Notes for the Company by manual or facsimile signature.

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

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

The Trustee shall, upon a written order of the Company signed by two Officers (an “Authentication Order”) accompanied by an Officers’ Certificate, authenticate Notes for original issue up to the aggregate principal amount of $55.0 million plus any Capitalized Interest permitted to be issued in lieu of cash interest payments on the Notes as permitted by Section 14.02(c) hereof and paragraph “1. Interest” in the Form of Note.

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

Section 2.03.                Registrar, Paying Agent and Conversion Agent.

The Company shall maintain an office or agency in The City of New York where Notes may be presented for registration of transfer or for exchange (“Registrar”), an office or agency where Notes may be presented for payment (“Paying Agent”) and an office or agency where the Notes may be presented for conversion (“Conversion Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents and conversion agents. The term “Registrar” includes any co-registrar, the term “Paying Agent” includes any additional paying agent, and the term “Conversion Agent” includes any additional conversion agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

The Company initially appoints the Trustee to act as the Registrar, Paying Agent and Conversion Agent.

Section 2.04.                Paying Agent to Hold Money in Trust.

The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of Principal, premium, if any, Interest or any other amounts due on the Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.

Section 2.05.        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 all Holders and shall otherwise comply with TIA § 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 at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may

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reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA § 312(a).

Section 2.06.        Transfer and Exchange.

(a)           Subject to compliance with any applicable additional requirements contained in Section 2.13, when a Note is presented to a Registrar with a request to register a transfer thereof or to exchange such Note for an equal Principal Amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested; provided, however, that every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an assignment form and, if applicable, an appropriately completed certificate of transfer in the form attached as Exhibit B hereto, and in form satisfactory to the Registrar duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Note for registration of transfer or exchange at an office or agency maintained pursuant to Section 2.03, the Company shall execute and the Trustee shall authenticate Notes of a like aggregate Principal Amount at the Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto other than any tax or other governmental charge payable upon any exchange or transfer pursuant to Sections 2.10, 2.13(a), 3.07, 3.08, 3.09, 5.10, 5.15 and 10.05.

(b)           The Company shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for repurchase under Sections 3.07, 3.08 and 3.09 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for repurchase in whole or in part, except the unpurchased portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date set forth on the face of such Note.

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

(d)           Any Registrar appointed pursuant to Section 2.03 hereof shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Notes upon transfer or exchange of Notes.

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

(f)            Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is

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registered as the absolute owner of such Note for the purpose of receiving payment of Principal of and Interest and any other amounts due on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

(g)           All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

Section 2.07.        Replacement Notes.

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.

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

Section 2.08.        Outstanding Notes.

The Notes outstanding at any time are all the Notes authenticated by the Trustee, except for those canceled by it, those converted pursuant to Article 4, those delivered to it for cancellation, and those described in this Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.

If the entire Principal, accrued and unpaid Interest on such Principal, accrued and unpaid Late Charges on such Principal and Interest and any other amounts due on any Note is considered paid under Section 5.01 hereof, such Note ceases to be outstanding and Interest on it ceases to accrue.

If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or Stated Maturity, money sufficient to pay all Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue Interest.

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Section 2.09.        Treasury Notes.

In determining whether the Holders of the required Principal Amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned shall be so disregarded.

Section 2.10.        Temporary Notes.

Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes without charge to the Holders.

Holders of temporary Notes shall be entitled to all of the benefits of this Indenture as physical Notes.

Section 2.11.        Cancellation.

The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange, payment or conversion. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement, cancellation or conversion and shall dispose of canceled Notes (subject to the record retention requirement of the Exchange Act). Except as otherwise provided in this Indenture, the Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation, or that any Holder has converted pursuant to Article 4 hereof.

Section 2.12.        Defaulted Interest.

If the Company defaults in a payment of Interest or any other amounts due on the Notes, Late Charges shall apply and the Company shall pay the Late Charges in any lawful manner plus, to the extent lawful, Late Charges payable, to the Persons who are Holders on a subsequent special record date. The Company shall notify the Trustee in writing of the amount of Late Charges proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such Late Charges. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such Interest to be paid.

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Section 2.13.                Legend; Additional Transfer and Exchange Requirements.

(a)           If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the legends set forth on the Form of Note (collectively, the “Legend“), or if a request is made to remove the Legend on a Note, (i) the Notes so issued shall bear the Legend, or (ii) the Legend shall not be removed, as the case may be, unless in the case of clause (ii) there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act or that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act; provided that no such evidence need be supplied in connection with the sale of such Note pursuant to a registration statement that is effective at the time of such sale. Upon (1) provision of such satisfactory evidence if requested, or (2) notification by the Company to the Trustee and Registrar of the sale of such Note pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.

(b)           No transfer of a Note to any Person shall be effective under this Indenture or the Notes unless and until such Note has been registered in the name of such Person.

(c)           Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the Legend. Whenever any restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate of transfer in the form attached as Exhibit B hereto, dated the date of such surrender and signed by the Holder of such Note, as to compliance with any applicable restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.

(d)           The restrictions imposed by the Legend upon the transferability of any Note shall cease and terminate when such Note has been sold pursuant to an effective registration statement under the Securities Act or transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 2.13 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by, if requested by the Company or the Registrar, an Opinion of Counsel reasonably acceptable to the Company and addressed to the Company in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate Principal Amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the effective date of any registration statement registering

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the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel or registration statement.

As used in the preceding Subsections 2.13(c) and (d), the term “transfer” encompasses any sale, transfer or other disposition of any Note.

Section 2.14.                CUSIP Numbers.

The Company in issuing the Notes may use one or more “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption or purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.

Section 2.15.                Book-Entry Provisions for Global Notes.

(a)           The Global Note initially shall (i) be registered in the name of the Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for the Depositary and (iii) bear legends as set forth on the face of the Form of Note.

(b)           Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture in respect of any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Note, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note 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 governing the exercise of the rights of any Holder.

(c)           Transfers of the Global Note shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Note may be transferred or exchanged, in whole or in part, for Physical Notes in accordance with the rules and procedures of the Depositary and the provisions of Section 2.13. In addition, Physical Notes shall be transferred to all Beneficial Owners in exchange for their beneficial interests in the Global Note if (A) such Depositary has notified the Company (or the Company becomes aware) that the Depositary (i) is unwilling or unable to continue as Depositary for such Global Note or (ii) has ceased to be a clearing agency registered under the Exchange Act when the Depositary is required to be so registered to act as such Depositary and, in either such case, no successor Depositary shall have been appointed within 90 days of such notification or of the Company becoming aware of such event; or (B) there shall have occurred and be continuing an Event of Default in respect of such Global Note and the outstanding Notes shall have become due and payable pursuant to Section 7.02 and the Trustee requests that

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Physical Note be issued; provided that Holders of Physical Note offered and sold in reliance on Rule 144A shall have the right, subject to applicable law, to request that such Notes be exchanged for interests in the applicable Global Note.

(d)           In connection with any transfer or exchange of a portion of the beneficial interest in the Global Note to Beneficial Owners pursuant to clause (c) of this Section 2.15, the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the Principal Amount of the Global Note in an amount equal to the Principal Amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and amount.

(e)           In connection with the transfer of the entire Global Note to Beneficial Owners pursuant to clause (c) of this Section 2.15, the Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Note, an equal aggregate Principal Amount of Physical Notes of authorized denominations and the same tenor.

(f)            Any Physical Note bearing a restrictive Legend delivered in exchange for an interest in the Global Note pursuant to clause (c) or (d) of this Section 2.15 shall bear the legend regarding transfer restrictions applicable to the Physical Notes set forth on the face of the form of Note in Exhibit A hereto.

(g)           The Holder of the Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

(h)           The Trustee shall have no responsibility or obligation to any Beneficial Owner of a Global Note, a member or, or a participant in the Depositary or other Person in respect of the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, in respect of any ownership interest in the Notes or in respect of the delivery to any participant, member, Beneficial Owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or in respect of such Notes. All notices and communications to be given to the Holders and all payment to be made to Holders under 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 Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable procedures of the Depositary. The Trustee may rely on information furnished by the Depositary in respect of its Agent Members and any Beneficial Owners.

Section 2.16.                Transfers to QIBs.

The following provisions shall apply in respect of the registration of any proposed transfer of a Note constituting a Note bearing a restrictive Legend to a QIB:

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(a)           the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of Note stating, or has otherwise advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of Note stating, or has otherwise advised the Company and the Registrar in writing, that it is purchasing the Note for its own account or an account in respect of which it exercises sole investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.

(b)           if the proposed transferee is an Agent Member, and the Notes to be transferred consist of Physical Notes which after transfer are to be evidenced by an interest in the Global Note, upon receipt by the Registrar of instructions given in accordance with the Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its books and records the date and an increase in the Principal Amount of the Global Note in an amount equal to the Principal Amount of the Physical Notes to be transferred, and the Trustee shall cancel the Physical Notes so transferred.

ARTICLE 3.
REDEMPTION AND PREPAYMENT

Section 3.01.                Notices to Trustee.

If the Company elects to exercise the Optional Redemption Right pursuant to Section 3.07 hereof, it shall notify the Trustee in writing of the Optional Redemption Date and the Principal Amount of the Notes to be redeemed, together with an Officers’ Certificate that all conditions precedent with respect to such redemption contained in Section 3.01 have been satisfied.

The Company shall give each notice to the Trustee and the Registrar provided for in this Section 3.01 at least 35 days prior to any Optional Redemption Date unless the Trustee consents to a shorter period. Such notice shall be accompanied by an Officer’s Certificate to the effect that such redemption will comply with the conditions herein, including but not limited to Section 3.07 herein. If fewer than all the Notes are to be redeemed, the record date relating to such redemption shall be selected by the Company and set forth in the related notice given to the Trustee, which record date shall be not less than 15 days after the date of such notice.

Section 3.02.                Selection of Notes To Be Redeemed.

In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed, then by lot or at random. Notes and portions of them the Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to Notes called for redemption also apply to

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portions of Notes called for redemption. The Trustee shall notify the Company promptly of the Notes or portions of Notes to be redeemed. The Trustee may rely upon information provided by the Registrar for purposes of this Section 3.02.

If any Note selected for partial redemption is converted in part before termination of the conversion right in respect of the portion of the Note so selected, the converted portion of such Note shall be deemed (so far as may be) to be the portion selected for redemption such that the amount designated for partial redemption shall be reduced by the amount so converted. Notes which have been converted during a selection of Notes to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection.

Section 3.03.                Notice of Redemption

At least 30 days but not more than 60 days before an Optional Redemption Date, the Company shall deliver a notice of redemption (an “Optional Redemption Notice“) (with a copy to the Trustee) to each Holder of Notes to be redeemed at such ▇▇▇▇▇▇’s registered address.

The Optional Redemption Notice shall identify the Notes to be redeemed and shall state:

(i)            each date when, pursuant to the provisions of Section 3.07 hereof, the Company elects to redeem the Notes in whole or in part (the “Optional Redemption Date”);

(ii)           the Optional Redemption Price;

(iii)          the Conversion Price;

(iv)          the name and address of the Paying Agent where Notes are to be surrendered;

(v)           that Notes called for redemption may be converted at any time before the close of business on the Business Day immediately preceding the Optional Redemption Date;

(vi)          that Notes called for redemption must be surrendered to the Paying Agent to collect the Optional Redemption Price;

(vii)         if fewer than all the outstanding Notes are to be redeemed, the identification and Principal Amounts of the particular Notes to be redeemed;

(viii)        that, unless the Company defaults in making such redemption payment, Interest on Notes (or portion thereof) called for redemption ceases to accrue on and after the Optional Redemption Date; and

(ix)           the CUSIP number or ISIN number, if any, printed on the Notes being redeemed.

At the Company’s request, the Trustee shall give the Optional Redemption Notice in the Company’s name and at the Company’s expense. In such event, the Company shall provide the Trustee with the information required by this Section 3.03.

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Section 3.04.                Effect of Notice of Redemption.

Once an Optional Redemption Notice is delivered to the Holders, the Notes (or portions thereof) called for redemption shall become irrevocably due and payable on the Optional Redemption Date and at the Optional Redemption Price stated in the Optional Redemption Notice. An Optional Redemption Notice may not be conditional and shall be irrevocable. Upon surrender to the Paying Agent, such Notes shall be paid at the Optional Redemption Price stated in the Optional Redemption Notice; provided that if the Optional Redemption Date is on or after a regular record date and on or prior to the Interest Payment Date, the accrued and unpaid Interest shall be payable to the Holder of the redeemed Notes registered on the relevant record date. Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder.

Section 3.05.                Deposit of Redemption Price.

No later than 11:00 a.m. (New York City time) on the Business Day prior to the date on which any Redemption Price on any Note is due and payable, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price on all Notes to be redeemed on the applicable Redemption Date other than Notes or portions of Notes called for redemption which are owned by the Company or a Subsidiary and have been delivered by the Company or such Subsidiary to the Trustee for cancellation. If the Company complies with the provisions of this Section, then on and after the applicable Redemption Date, Interest will cease to accrue on the Notes (or portions of the Notes) called for redemption.

Section 3.06.                Notes Redeemed in Part.

Upon cancellation of a Note that is redeemed in part, the Company shall issue and the Trustee shall authenticate for the Holder (at the Company’s expense) a new Note equal in Principal Amount to the unredeemed portion of the Note surrendered. The Trustee shall notify the Registrar of the issuance of such new Note.

Section 3.07.                Optional Redemption by the Company.

The Notes may not be redeemed at the option of the Company pursuant to this Indenture at any time prior to September 30, 2009. If, at any time and from time to time on or after September 30, 2009 there is not an Equity Conditions Failure, then the Company shall have the right to redeem (the “Optional Redemption Right”) all or any portion of the Notes at a redemption price (the “Optional Redemption Price”) equal to (i) if the Optional Redemption Date is prior to September 30, 2010 and the Closing Sale Price of the Common Stock is greater than $6.00 (subject to adjustment for any stock dividend, stock split, stock combination, reclassification or other transactions after the Issue Date as set forth in Section 4.05) for each of 20 of any 30 consecutive Trading Days preceding the applicable Optional Redemption Notice (“Pricing Condition”) , then 100% of the Principal Amount plus accrued and unpaid Interest on such Principal, Late Charges on such Principal and Interest, and Interest Make-Whole, if any, (ii) if the Optional Redemption Date is on or after September 30, 2010 and prior to September 30, 2011, then if the Pricing Condition is satisfied, 100%, otherwise, 105%, of the Principal Amount

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as designated in the Optional Redemption Notice plus accrued and unpaid Interest on such Principal, and Late Charges on such Principal and Interest, if any, and (iii) if the Optional Redemption Date is on or after September 30, 2011 and prior to September 30, 2012, then if the Pricing Condition is satisfied, 100%, otherwise, 102.5% of the Principal Amount as designated in the Optional Redemption Notice, plus accrued and unpaid Interest on such Principal, and Late Charges on such Principal and Interest, if any, subject to the right of Holders of record on the relevant regular record date to receive Interest due on an Interest Payment Date that is on or prior to the Optional Redemption Date.

Section 3.08.                Offer to Purchase by Application of Excess Proceeds.

In the event that, pursuant to Section 5.10 hereof, the Company shall be required to commence an offer to all Holders of Notes to purchase the maximum Principal Amount of Notes that may be purchased out of the Excess Proceeds (an “Excess Proceeds Offer”), it shall follow the procedures specified below.

The Excess Proceeds Offer shall remain open for a period of at least 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). As promptly as practicable and no later than three Business Days after the termination of the Offer Period (the “Excess Proceeds Redemption Date“), the Company shall purchase the Principal Amount of Notes required to be purchased pursuant to Section 5.10 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made in the same manner as Interest payments are made and shall be paid on the Excess Proceeds Redemption Date.

If the Excess Proceeds Redemption Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid Interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date.

Upon the commencement of an Excess Proceeds Offer, the Company shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The Excess Proceeds Offer shall be made to all Holders. The notice which shall govern the terms of the Excess Proceeds Offer (the “Excess Proceeds Notice”) shall state:

(a)           that the Excess Proceeds Offer is being made pursuant to this Section 3.08 and Section 5.10 hereof and the length of time the Excess Proceeds Offer shall remain open;

(b)           the Offer Amount, the Excess Proceeds Redemption Price and the Excess Proceeds Redemption Date;

(c)           that any Note not tendered or accepted for payment shall continue to accrue Interest;

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(d)           that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue Interest after the Excess Proceeds Redemption Date;

(e)           that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer may elect to have Notes purchased in integral multiples of $1,000 only;

(f)            that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice no later than the expiration of the Offer Period prior to the Excess Proceeds Redemption Date;

(g)           that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the Principal Amount of the Note the Holder delivered for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased;

(h)           that, if the aggregate Principal Amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and

(i)            that Holders whose Notes were purchased only in part shall be issued new Notes equal in Principal Amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

On or before the Excess Proceeds Redemption Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.08. If the aggregate Principal Amount of Notes tendered into such Excess Proceeds Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on pro rata basis. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than three Business Days after the Excess Proceeds Redemption Date) mail or deliver to each tendering Holder an amount equal to the Excess Proceeds Redemption Price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a Principal Amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Excess Proceeds Offer on the Excess Proceeds Redemption Date.

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The Company shall comply with the requirements of Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to any Excess Proceeds Offer.

Section 3.09.                Offer to Repurchase Upon Election of Holder.

(a)           Subject to receipt of the Repurchase Notice (as defined in Section 3.09(c) hereof), all or any portion of the Notes of any Holder equal to $1,000 or an integral multiple of $1,000 shall be repurchased by the Company, at the option of such Holder, on September 30, 2010 (the “Holder Optional Redemption Date”) at a purchase price in cash equal to 100% of the Principal Amount of the Notes to be repurchased together with Interest and Late Charges, if any, accrued and unpaid to, but excluding, the Holder Optional Redemption Date (the “Holder Optional Redemption Price”); provided, however, if the Holder Optional Redemption Date falls after a regular record date but on or before the related Interest Payment Date, then the Interest on the Notes payable on such date shall be payable to the Holders in whose name the Notes were registered at the close of business on such regular record date.

(b)           Not more than 60 days and not less than 30 days prior to the Holder Optional Redemption Date, the Company, or, at the written request and expense of the Company, the Trustee, shall mail a written notice of the Holder Optional Redemption Date (the “Holder Optional Redemption Notice”) to the Trustee (if the Trustee does not mail such notice) and to each Holder. The Holder Optional Redemption Notice shall include the form of a repurchase notice to be completed by the Holder and shall state:

(i)            the date by which a Repurchase Notice pursuant to this Section 3.09 must be given;

(ii)           the Holder Optional Redemption Date;

(iii)          the Holder Optional Redemption Price;

(iv)          the Holder’s right to require the Company to repurchase the Notes;

(v)           briefly, the conversion rights of the Notes;

(vi)          the name and address of each Paying Agent and Conversion Agent;

(vii)         the Conversion Price (including any adjustments thereto);

(viii)        that, the Notes as to which a Holder Optional Redemption Notice has been given may be converted into Cash and Common Stock (if any) pursuant to Article 4 of this Indenture only to the extent that the Holder Optional Redemption Notice has been withdrawn in accordance with the terms of this Indenture;

(ix)           that, unless the Company defaults in making the payment of the Redemption Price, interest on Notes called for repurchase shall cease to accrue on and after the Redemption Date and the only remaining right of the Holder shall be to receive payment of the

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Redemption Price payable to such Holder upon presentation and surrender to a Paying Agent of the Notes;

(x)            the procedures that the Holder must follow to exercise rights under this Section 3.09;

(xi)           the procedures for withdrawing a Repurchase Notice, including a form of notice of withdrawal;

(xii)          that the Holder must satisfy the requirements set forth in the Notes and Article 4 hereof in order to convert the Notes; and

(xiii)         the CUSIP and/or ICIN numbers of the Notes.

If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Notes.

(c)           A Holder may exercise its rights specified in this Section 3.09 (a “Holder Optional Redemption”) upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Notes, may be delivered electronically or by other means in accordance with the Depositary’s customary procedures) of the exercise of such rights (a “Repurchase Notice”) to any Paying Agent at any time prior to the close of business on the second Trading Day next preceding the Holder Optional Redemption Date.

(i)            The delivery of such Note to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Holder Optional Redemption Price therefor.

(ii)           The Company shall only be obliged to repurchase, pursuant to this Section 3.09, a portion of a Note if the Principal Amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.

(iii)          Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the Repurchase Notice contemplated by Section 3.09(c) shall have the right to withdraw such Repurchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to 5:00 p.m., New York City time, on the second Trading Day next preceding the Holder Optional Redemption Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.11.

(iv)          A Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Notice or written withdrawal thereof.

(v)           Anything herein to the contrary notwithstanding, in the case of Global Notes, any Repurchase Notice may be delivered or withdrawn and such Notes may be

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surrendered or delivered for repurchase in accordance with the applicable procedures as in effect from time to time.

(d)           The Company shall deliver the applicable Holder Optional Redemption Price to the Holder on the Holder Optional Redemption Date. In the event of a redemption of less than all of the Principal Amount of any Note, the Company shall promptly cause to be issued and delivered to the Holder a new Note representing the outstanding Principal Amount which has not been redeemed.

Section 3.10.                Failure of Company to Pay the Applicable Redemption Price.

In the event that the Company does not pay the applicable Redemption Price to the Holder within the time period required, at any time thereafter and until the Company pays such unpaid Redemption Price in full, the Holder shall have the option, in lieu of redemption, to require the Company to promptly return to the Holder all or any portion of this Note representing the Principal Amount that was submitted for redemption and for which the applicable Redemption Price (together with any Late Charges thereon) has not been paid. Upon the Company’s receipt of such notice, (x) the applicable Redemption Notice shall be null and void with respect to such Principal Amount, (y) the Company shall immediately return the Note, or issue a new Note (which shall be authenticated by the Trustee) to the Holder representing such Conversion Amount to be redeemed and (z) subject to Section 4.05(2)(c) hereof, the Conversion Price of the Note or such new Notes shall be adjusted in accordance with written instructions of the Company to the lesser of (A) the Conversion Price as in effect on the date on which the applicable Redemption Notice is voided and (B) the lowest Closing Sale Price of the Common Stock during the period beginning on and including the date on which the applicable Redemption Notice is delivered to the Company and ending on and including the date on which the applicable Redemption Notice is voided. The Holder’s delivery of a notice voiding a Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments of Late Charges which have accrued prior to the date of such notice with respect to the Principal Amount subject to such notice.

ARTICLE 4.
CONVERSION

Section 4.01.                Conversion Privilege.

(a)           Conversion at the Option of the Holder. Subject to the further provisions of this Article 4 and paragraph 8 in the Form of Note, at any time or times after the Issue Date and until the Stated Maturity, a Holder of a Note may convert the Conversion Amount of such Note (or any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof) into such number (rounded to the nearest whole number) of validly issued, fully paid and nonassessable shares of Common Stock of the Company as is set forth in Section 4.01(b); provided, however, that if such Note is to be redeemed pursuant to Section 3.07 or presented for purchase pursuant to Section 3.08 or Section 5.15, such conversion right shall terminate at the date such Note is redeemed or purchased pursuant to an Excess Proceeds Offer or a Change of Control Offer, as the case may be, for such Note or such earlier date as the Holder presents such Note for redemption or purchase (unless the Company shall default in paying the applicable

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Redemption Price when due, in which case the conversion right shall terminate at the close of business on the date such Default is cured and such Note is redeemed or purchased) subject to paragraph (c) below.

(b)           The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to this Section 4.01 shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).

“Conversion Amount” means the sum of (A) the portion of the Principal Amount to be converted, redeemed or otherwise with respect to which this determination is being made, (B) accrued and unpaid Interest with respect to such Principal Amount, (C) accrued and unpaid Late Charges, if any, and (D) the Interest Make-Whole, if applicable.

“Conversion Price” means, as of any Conversion Date (as defined below) or other date of determination, initially $3.66 as of the date of this Indenture, subject to adjustment from time to time pursuant to this Article 4.

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

(d)           A Note in respect of which a Holder has delivered an “Option of Holder to Elect Purchase” form exercising the option of such Holder to require the Company to purchase such Note pursuant to an Excess Proceeds Offer, a Change of Control Offer or a Redemption pursuant to Section 3.09 hereof may be converted only if such form is withdrawn by a written notice of withdrawal delivered to a Paying Agent no later than the expiration of the offer period in accordance with Section 3.08, or Section 5.15, or at any time prior to 5:00 p.m., New York City time, on the second Trading Day immediately preceding the applicable Redemption Date, as the case may be, specifying the Principal Amount of the Note or portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof) with respect to which such notice of withdrawal is being submitted, as applicable.

(e)           For any Interest Payment Date occurring after the fourth semi-annual Interest Payment Date due on September 30, 2009, if a Note is converted on or after a record date for an interest payment but prior to the corresponding Interest Payment Date, the Holder will be required to pay the Company, at the time it surrenders such Note for conversion, the amount of Interest on such Notes it will receive on the Interest Payment Date corresponding to the period commencing on such conversion date and ending on such Interest Payment Date. Notwithstanding the foregoing and the provisions of Section 4.01(b) hereof, if a Note is converted prior to payment of the fourth semi-annual interest payment due on September 30, 2009, and (i) if the Holder indicates on the applicable Conversion Notice that the applicable Conversion Amount shall not include any Interest Make-Whole, then such Holder shall receive, in addition to the Company’s Common Stock (or other securities or assets as provided for in this Section 4.01) issuable upon such conversion, the LC Amount applicable to such Note or portion of such Note released and delivered by the LC Agent, and (ii) if the Holder indicates on the applicable Conversion Notice that the applicable Conversion Amount shall include the Interest Make-Whole, then the Letter of Credit shall be reduced by the LC Amount applicable to such

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Note or portion of such Note; provided, however, that if the conversion is in connection with a Change of Control in which Additional Shares are required to be paid by the Company, then the Letter of Credit shall be reduced by the LC Amount applicable to such Note or portion of such Note.

(f)            A Holder of Notes is not entitled to any rights of a holder of Common Stock until such Holder has converted its Notes to Common Stock in compliance with the procedures set forth in this Article 4, and only to the extent such Notes are deemed to have been converted into Common Stock pursuant to this Article 4.

Section 4.02.                Conversion Procedure.

To convert a Note (or portion thereof) into shares of Common Stock on any date (the “Conversion Date”), a Holder must (a) complete and manually sign the conversion notice on the back of the Note and transmit by facsimile (or otherwise deliver) such notice to a Conversion Agent and the Conversion Agent shall have received such notice, on or prior to 5:00 p.m., New York City time, on such date, (b) surrender the Notes to be converted to the Conversion Agent as soon as practicable on or following such date (or an indemnification undertaking with respect to any such Notes in the case of its loss, theft or destruction), (c)  furnish appropriate endorsements and transfer documents if required by a Registrar or a Conversion Agent, and (d) pay any transfer or similar tax, if required. As soon as practicable after the Conversion Date, but in no event later than three Trading Days following delivery of a Conversion Notice (the “Share Delivery Due Date”) the Company shall deliver to the Holder through a Conversion Agent a certificate for the number of whole shares of Common Stock (or Conversion Securities, if applicable) issuable upon the conversion and shall, (x) provided the Company’s transfer agent is participating in The DTC’s Fast Automated Securities Transfer Program, cause its transfer agent to credit such aggregate number of shares of Common Stock to which each such Holder shall be entitled to the Holder’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system or (y) if such transfer agent is not participating in DTC’s Fast Automated Securities Transfer Program, execute, and shall deliver, to the address as specified in the Conversion Notice, a certificate, registered in the name of the converting holder or its designee, for the number of shares of Common Stock to which such holder shall be entitled.

The Person or Persons entitled to receive such Common Stock upon such conversion shall be treated for all purposes as the holder or holders of such Common Stock, as of the close of business on the applicable Conversion Date; provided, however, that no surrender of a Note on any date when the stock transfer books of the Company shall be closed shall be effective to constitute the Person or Persons entitled to receive the shares of Common Stock upon such conversion as the holder or holders of such shares of Common Stock on such date, but such surrender shall be effective to constitute the Person or Persons entitled to receive such shares of Common Stock as the holder or holders thereof for all purposes at the close of business on the next succeeding day on which such stock transfer books are open; provided further that such conversion shall be at the Conversion Price in effect on the Conversion Date as if the stock transfer books of the Company had not been closed. Upon conversion in full of a Note, such Person shall no longer be a Holder of such Note.

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Upon surrender of a Note that is converted in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder, a new Note equal in Principal Amount to the unconverted portion of the Note surrendered.

The Company shall not effect any conversion of a Note, and no Holder shall have the right to convert any portion of such Note, to the extent that after giving effect to such conversion, such Holder (together with such Holder’s affiliates) would beneficially own in excess of 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to such conversion (the “Conversion Limitation”). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its affiliates shall include the number of shares of Common Stock issuable upon conversion of a Note with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted portion of any Note beneficially owned by such Holder or any of its affiliates and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of this Section 4.02, in determining the number of outstanding shares of Common Stock, such Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent annual, quarterly or current report on Form 10-KSB, 10-QSB or Form 8-K, respectively, as the case may be; (y) a more recent public announcement by the Company or (z) any other notice by the Company setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a Holder, the Company shall within two Business Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including any Note, by such Holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, any Holder may increase or decrease the Conversion Limitation to any other percentage not in excess of 9.99% specified in such notice; provided that (i) any such increase will not be effective until the 61st day after such notice is delivered to the Company, and (ii) any such increase or decrease will apply only to the Holder sending such notice and not to any other Holder of Notes. Notwithstanding the foregoing, the Conversion Limitation shall not be applicable (i) on any of the ten Trading Days up to and including the Stated Maturity, or (ii) on any of the ten Trading Days up to and including the effective date of such Change of Control or (iii) during the period between the date that the Change of Control notice is sent and the Change of Control Redemption Date.

Section 4.03.                Taxes on Conversion.

If a Holder converts a Note, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of shares of Common Stock (or Conversion Securities, as applicable) upon such conversion. However, the Holder shall pay any such tax which is due because the Holder requests the securities to be issued in a name other than the Holder’s name.

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Section 4.04.                Company to Reserve Stock; Related Covenants.

(a)           Reservation of Shares. The Company initially shall reserve out of its authorized and unissued Common Stock a number of shares of Common Stock for each Note not less than 120% of the Conversion Rate with respect to the Conversion Amount of each such Note as of the Issue Date. So long as any Notes are outstanding, the Company shall take all action necessary to reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Notes, 120% of the number of shares of Common Stock as shall from time to time be necessary to effect the conversion of all of the outstanding Notes (without regard to any limitations on conversions) (the “Required Reserve Amount”). The initial number of shares of Common Stock reserved for conversions of the Notes and each increase in the number of shares so reserved shall be allocated pro rata among the Holders based on the Principal Amount of the Notes held by each Holder on the Issue Date or increase in the number of reserved shares, as the case may be (the “Authorized Share Allocation”). In the event that a Holder shall sell or otherwise transfer any of such ▇▇▇▇▇▇’s interests in any Notes, each transferee shall be allocated a pro rata portion of such Holder’s Authorized Share Allocation.

(b)           Insufficient Authorized Shares. If at any time while any of the Notes remain outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Notes at least a number of shares of Common Stock equal to the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the outstanding Notes. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than 60 days after the occurrence of such Authorized Share Failure, the Company shall call a meeting of its shareholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each shareholder with a proxy statement and shall use its reasonable best efforts to solicit its shareholders’ approval of such increase in authorized shares of Common Stock and to cause its Board of Directors to recommend to the shareholders that they approve such proposal.

(c)           Validity. All shares of Common Stock (or Conversion Securities, as applicable) delivered upon conversion of the Notes shall be newly issued shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim.

(d)           Compliance with Applicable Laws; Additional Listing Application. The Company will comply with all federal and state securities laws regulating the offer and delivery of shares of Common Stock (or Conversion Securities, as applicable) upon conversion of Notes, if any, and will list or cause to have quoted such shares of Common Stock (or Conversion Securities, as applicable) on each national securities exchange or on over-the-counter market or such other market on which the Common Stock (or Conversion Securities, as applicable) is then listed or quoted.

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(e)           Conversion Delay. The Company understands that a delay in the delivery of the certificates representing the Common Stock issuable upon conversion of the Notes could result in economic loss to the Holder. In addition to any other rights of Holders, as compensation to the Holder for such late delivery of Common Stock upon conversion of this Note the amount of $50 per Business Day for each $10,000 of Common Stock (measured by the relevant Conversion Price as of the Conversion Date and prorated for amounts other than $10,000) after the Share Delivery Due Date and continuing until the date on which the certificate representing such Common Stock is delivered to the Holder (or its designee) or the obligation to deliver such certificate is terminated as set forth below. The Company shall pay any payments incurred under this paragraph in immediately available funds upon demand.

In addition, if, on or after the Share Delivery Due Date (i) the certificate for such shares of Common Stock has not been delivered by the Company to the Holder and (ii) the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of shares of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Business Days after the Holder’s written request (which request shall include evidence of the purchase and a breakdown of the purchase price) and in such Holder’s discretion, either (x) pay cash to such Holder in an amount equal to such Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver such certificate (and to issue such shares of Common Stock) shall terminate, or (y) promptly honor its obligation to deliver to such Holder a certificate or certificates representing such Common Stock and pay cash to such Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) the Closing Sale Price on the Conversion Date.

Section 4.05.                Adjustment of Conversion Price.

The Conversion Price shall be adjusted from time to time by the Company as follows other than as a result of, or in connection with, the issuance of Excluded Securities:

(1)           Dividends; Distributions; Subdivisions; Combinations. In case the Company shall (A) pay a dividend on its Common Stock in shares of Common Stock, (B) make a distribution on its Common Stock in shares of Common Stock, (C) subdivide its outstanding Common Stock into a greater number of shares, or (D) combine its outstanding Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have owned had such Note been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (1) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision or combination.

(2)           Issuances Below Issue Date Closing Sale Price; Issuances Below Conversion Price.

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(a)           In case the Company shall issue or sell, or is deemed to have issued or sold, equity or equity-linked securities for a consideration per share of Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock):

(i)            at a price per share (or having a conversion, exercise or exchange price per share) less than $2.70 (subject to adjustment for stock splits, combinations, dividends and other customary adjustments), or

(ii)           following September 30, 2009, at a price per share (or having a conversion, exercise or exchange price per share) less than the lesser of (A) the then current Conversion Price and (B) $2.70 (subject to adjustment for stock splits, combinations, dividends and other customary adjustments),

(treating the conversion, exercise or exchange price per share of the securities convertible into or exercisable or exchangeable for Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into or exercisable or exchangeable for Common Stock and (ii) any additional consideration payable upon the conversion of such security into or exercise or exchange of such security for Common Stock divided by (y) the number of shares of Common Stock underlying such security), the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which:

(A)          the numerator shall be the number of shares of Common Stock outstanding on the close of business on the relevant record date (or if no record date is fixed, the date immediately prior to the date of announcement of such issuance), plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion, exercise or exchange price of the securities so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion, exercise or exchange of such securities by the applicable conversion, exercise or exchange price per share of Common Stock pursuant to the terms of such securities) would purchase at the Conversion Price per share of Common Stock on such record date; and

(B)           the denominator shall be the number of shares of Common Stock outstanding on the close of business on such record date with respect to such issuance (or if no record date is fixed, the date immediately prior to the date of announcement of such issuance), plus the number of additional shares of Common Stock offered (or into which the securities so offered are convertible, exchangeable or exercisable).

(b)          Change in Exercise/Conversion Price or Rate of Conversion. If the purchase price provided for in any equity-linked securities, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any equity-linked securities, or the rate at which any equity-linked securities are convertible into or exchangeable or exercisable for Common Stock changes at any time, the Conversion Price in effect at the time of such change shall be adjusted to the Conversion Price which would have been in effect at such time had such equity-linked securities provided for such changed purchase price, additional consideration or changed conversion rate, as the case may be, at the time initially granted, issued or sold. For

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purposes of this Section 4.05(2)(b), if the terms of any equity-linked security that was outstanding as of the Issue Date are changed in the manner described in the immediately preceding sentence, then such equity-linked security and the Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such change.

(c)           Limitations & Interpretations.

Notwithstanding anything to the contrary in this Indenture (including, without limitation, Section 3.10, this Section 4.05(2), Section 4.06 and Section 4.10), unless the Company shall have received Stockholder Approval, the Conversion Price or Conversion Rate shall not be adjusted beyond the amount that the total number of shares issuable upon conversion of the Notes would exceed 22,008,800 shares (as adjusted for stock splits, reverse stock splits, stock combinations, reclassifications and reorganizations) which represents 19.99% of the Company’s Common Stock outstanding as of the close of the Trading Day immediately preceding the date of the Indenture without shareholder approval or as otherwise required pursuant to the listing requirements of the American Stock Exchange or such other national securities exchange on which the Common Stock is then listed.

For purposes of this subsection 4.05(2), if the consideration of such additional shares of Common Stock, other Capital Stock or equity-linked securities consists in whole or in part of property other than cash, the portion of the non-cash consideration shall be computed as the Fair Market Value of such property, as determined in good faith by the Board of Directors of the Company.

For the avoidance of doubt, any adjustment to be made pursuant to this Section 4.05(2) shall be made on a weighted average basis to give effect to the size and price of the capital stock issued that gives or is to give rise to the antidilution protection intended by this Section, rather than on a so-called “full ratchet basis” or by attributing no consideration to the applicable proceeds raised.

Any adjustment required by this Section 4.05(2) shall be made successively whenever any such equity or equity-linked security are issued, and shall become effective immediately after such record date. If at the end of the period during which such equity-linked security are exercisable not all such securities shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).

Notwithstanding the foregoing, if the application of this Section 4.05(2) shall result in an increase in the Conversion Price, no adjustment shall be made for such issuances of equity or equity-linked securities.

(3)           Distributions of Capital Stock, Indebtedness or Other Non-Cash Assets. (i) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any person other than the Company

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but excluding (A) dividends or distributions paid exclusively in cash or (B) dividends or distributions referred to in subsection (1) of this Section 4.05), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (excluding those rights and warrants referred to in subsection (2) of this Section 4.05) and also excluding the distribution of rights to all holders of Common Stock pursuant to a Rights Plan (as defined below) adopted before the date of this Indenture), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price by a fraction of which:

(A)          the numerator shall be Current Market Price per share of the Common Stock on the record date mentioned below less the Fair Market Value on such record date (as determined by the Board of Directors in good faith, whose determination shall be conclusive evidence of such Fair Market Value and which shall be evidenced by an Officers’ Certificate delivered to the Trustee) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights, options or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the record date); and

(B)           the denominator shall be the Current Market Price per share of the Common Stock on such record date.

Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution.

(ii)           In the event the then Fair Market Value of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made prior to the time the foregoing adjustment could otherwise be made in a writing delivered to the Trustee and the Holders so that each Holder of a Note shall have the right to receive upon conversion the amount of capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants such Holder would have received had such holder converted each Note on such record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.05(3) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock.

Notwithstanding the foregoing, if the securities distributed by the Company to all or substantially all holders of its Common Stock consist of capital stock of, or similar equity interests in, a Subsidiary or other business unit, the Conversion Price shall be decreased so that the same shall be equal to the price determined by multiplying the Conversion Price in effect on the record date with respect to such distribution by a fraction:

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(A)          the numerator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period (as defined below), such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which “ex-dividend trading” commences; and

(B)           the denominator of which shall be the sum of (x) the average Closing Price of one share of Common Stock over the ten consecutive Trading Day period (the “Spinoff Valuation Period“) commencing on and including the fifth Trading Day after the date on which “ex-dividend trading” commences on the Common Stock on the American Stock Exchange or such other national or regional exchange or market on which the Common Stock is then listed or quoted and (y) the average Closing Price over the Spinoff Valuation Period of the portion of the securities so distributed applicable to one share of Common Stock.

In lieu of the foregoing, the Company may at the time of the public announcement of such distribution elect in a writing provided to the Trustee and the Holders to reserve the pro rata portion of such Notes so that each Holder of securities shall have the right to receive upon conversion the amount of such shares of capital stock or similar equity interests of such Subsidiary or business unit that such Holder of Notes would have received if such Holder of Notes had converted such Notes on the record date with respect to such distribution.

(iii)          With respect to any rights (the “Rights”) that may be issued or distributed pursuant to any rights plan of the Company (any Rights that may be issued pursuant to any rights plan being referred to as, a “Rights Plan”), upon conversion of the Notes into Common Stock, to the extent that such Rights Plan is in effect upon such conversion, the holders of Notes will receive, in addition to the Common Stock, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in any such Rights Plan. If the Rights Plan provides that upon separation of rights under such plan from the Common Stock that the Holders would not be entitled to receive any such rights in respect of the Common Stock issuable upon conversion of the Notes, the Conversion Price will be adjusted as provided in this Section 4.05 (with such separation deemed to be the distribution of such rights), subject to readjustment in the event of the expiration, termination or redemption of the rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.05(3).

(iv)          Rights, options or warrants (other than rights issued pursuant to a Rights Plan) distributed by the Company to all or substantially all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”):  (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock (including issuances of Common Stock upon conversion of the Notes), shall be deemed not to have been distributed for purposes of this Section 4.05 (and no adjustment to the Conversion Price under this Section 4.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been

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distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this Section 4.05(3). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights, options or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 4.05 was made, (1) in the case of any such rights, options or warrants which shall all have been redeemed, purchased by the Company or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption, purchase by the Company or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all or substantially all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights, options or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued.

(4)           Distributions of Cash. In case the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all or substantially all holders of its Common Stock cash, the Company may, at its sole option, (x) make a payment in cash to each Holder equal to the product of the amount of the Triggering Distribution per share of Common Stock multiplied by result of dividing the aggregate Principal Amount of Notes held by such Holder by the then applicable Conversion Price or (y) decrease the Conversion Price so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the Business Day immediately preceding the day on which such Triggering Distribution is declared (a “Determination Date”) by a fraction of which:

(A)          the numerator shall be the Current Market Price per share of the Common Stock (as determined in accordance with subsection (6) of this Section 4.05) on the Determination Date less the sum of the Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date); and

(B)           the denominator shall be such Current Market Price per share of the Common Stock (as determined in accordance with subsection (6) of this Section 4.05) on the Determination Date.

Such decrease to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid.

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(5)                                  Purchases of Common Stock by Tender Offer. In case the Company or any of its Subsidiaries shall purchase any shares of the Common Stock by means of tender offer, then immediately prior to the opening of business on the day after the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Expiration Date by a fraction of which:

(A)                              the numerator shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) immediately prior to the Expiration Time multiplied by the Current Market Price per share of the Common Stock (as determined in accordance with subsection (6) of this Section 4.05) on the Trading Day next succeeding the Expiration Date; and

(B)                                the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury of the Company) immediately prior to the Expiration Time and the Current Market Price per share of Common Stock on the Trading Day next succeeding the Expiration Date.

For purposes of this Section 4.05(5), the aggregate consideration in any such tender offer shall equal the sum of the aggregate amount of cash consideration and the aggregate Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent) of any other consideration payable in such tender offer. Such decrease will become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.05(5)(B) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.05(5)(B). For purposes of this Section 4.05(5), the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.

(6)                                  For the purpose of any computation under this Indenture, the current market price (the “Current Market Price”) per share of Common Stock on any date shall

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be deemed to be the average of the daily closing prices for the 10 consecutive Trading Days commencing 11 Trading Days before (A) the Determination Date or the Expiration Date, as the case may be, with respect to distributions or tender offers or (B) the record date with respect to distributions, issuances or other events requiring such computation under. The closing price (the “Closing Price”) for each day shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the American Stock Exchange or, if the Common Stock is not listed or admitted to trading on the American Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on the American Stock Exchange or any national securities exchange, the average of the closing bid and asked prices as quoted on the Nasdaq OTC Bulletin Board System or any comparable system or, if the Common Stock is not quoted on the Nasdaq OTC Bulletin Board System or any comparable system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. If no such prices are available, the Current Market Price per share shall be the fair value of a share of Common Stock as reasonably determined by the Board of Directors (which shall be evidenced by an Officers’ Certificate delivered to the Trustee), in consultation with a financial advisor the Company determines in good faith is reasonably proficient in valuing equity interests.

(7)                                  In any case in which this Section 4.05 shall require that an adjustment be made following a record date or a Determination Date or Expiration Date, as the case may be, established for purposes of this Section 4.05, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.05) issuing to the Holder of any Note converted after such record date or Determination Date or Expiration Date the shares of Common Stock and other capital stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Company of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by the Company for any reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.

For purposes of this Section 4.05, “record date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, security or other property (whether or not such date is fixed by the Board of Directors or by statute, contract or otherwise).

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Section 4.06.                                                 Adjustment of Conversion Price Upon a Non-Stock Change of Control

(a)                                  Subject to Section 4.12 hereof, if and only to the extent a Holder elects to convert Notes at any time during the Change of Control Conversion/Repurchase Period (as defined below in Section 5.15), the Company shall increase the Conversion Rate applicable to such converted Notes by a number of additional shares of Common Stock (the “Additional Shares”) as set forth below. The number of Additional Shares shall be determined by reference to the table below, based on the effective date of the Non-Stock Change of Control and the price (the “Stock Price”) paid per share for the Common Stock in the Non-Stock Change of Control. If holders of Common Stock receive only cash in the Non-Stock Change of Control, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the arithmetic average of the Closing Sale Prices of the Common Stock for the five Trading Days prior to but not including the Effective Date of such Non-Stock Change of Control.

The numbers of Additional Shares set forth in the table below shall be adjusted as of any date on which the Conversion Rate is adjusted in the same manner in which the Conversion Rate is adjusted. The Stock Prices set forth in the table below shall be adjusted, as of any date on which the Conversion Rate is adjusted, to equal the Stock Price applicable immediately prior to such adjustment multiplied by a fraction, of which

(i)                                     the numerator shall be the Conversion Rate immediately prior to the adjustment, and

(ii)                                  the denominator shall be the Conversion Rate as so adjusted.

The following table (the “Make-Whole Premium Table”) sets forth the Stock Price and number of Additional Shares by which the Conversion Rate shall be increased:

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Additional Shares Required to be Issued (per $1,000 principal amount of Notes)

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If the Stock Price and Effective Date are not set forth on the table above and the Stock Price is:

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

(ii)                                  in excess of $6.50 per share (subject to adjustment in the same manner as and as of any date on which the Stock Prices are adjusted in the table above) (the “Stock Price Threshold”), no Additional Shares of Common Stock shall be issued upon conversion; or

(iii)                               less than $2.00 per share (subject to adjustment in the same manner as and as of any date on which the Stock Prices are adjusted in the table above) (the “Stock Price Cap”), no Additional Shares shall be issued upon conversion.

(b)                                 Promptly after determination of the Additional Shares to be issued, the Company shall publish a notice containing this information in a newspaper published in the English language, customarily published each Business Day and of general circulation in The City of New York or publish such information on the Company’s web site or through such other public medium as the Company may use at that time.

(c)                                  Whenever the Conversion Price shall be adjusted from time to time by the Company pursuant to Section 4.05, the Stock Price Threshold and the Stock Price Cap shall be adjusted and each of the Stock Prices set forth in the Make-Whole Premium Table shall be adjusted. The adjusted Stock Price Threshold, Stock Price Cap and Stock Prices set forth in the Make-Whole Premium Table shall equal the Stock Price Threshold, the Stock Price Cap and such Stock Prices, as the case may be, immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Price as so adjusted and the denominator of which is the Conversion Price immediately prior to the adjustment giving rise to such adjustment subject to the limitations set forth in Sections 4.05(2)(c) hereof. Each of the share amounts set forth in the body of the Make-Whole Premium Table shall also be adjusted in the same manner and at the same time.

(d)                                 Notwithstanding the foregoing, the adjustments to Conversion Price or Conversion Rate provided in this Section 4.06 shall be subject to the limitations set forth in Sections 4.05(2)(c) hereof.

Section 4.07.                                                 Conversion After a Public Acquirer Change of Control

(1)                                  In the event of a Public Acquirer Change of Control, the Company may, in lieu of adjusting the Conversion Rate pursuant to 4.12, elect to adjust its conversion obligation and the Conversion Rate such that from and after the Effective Date of such Public Acquirer Change of Control, the Conversion Rate in effect immediately before the Public Acquirer Change of Control shall be adjusted by multiplying it by a fraction:

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(A)                              the numerator of which shall be (A) in the case of a consolidation, merger or binding share exchange, pursuant to which the Common Stock is converted solely into cash, the value of such cash paid or payable per share of Common Stock or (B) in the case of any other Public Acquirer Change of Control, the average of the closing sale prices of the Common Stock for the five consecutive Trading Days prior to but excluding the Effective Date of such Public Acquirer Change of Control; and

(B)                                the denominator of which shall be the arithmetic average of Weighted Average Price of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the Trading Day next succeeding the Effective Date of such Public Acquirer Change of Control.

(2)                                  At least thirty-five (35) Trading Days prior to the expected effective date of such Public Acquirer Change of Control and not later than concurrently with the applicable notice of such Change of Control, the Company shall provide a notice (a “Public Acquirer Change of Control Notice”) to all the Holders, the Trustee and the Paying Agent stating whether the Company elects (i) to adjust the Conversion Rate as set forth in this Section 4.07 or (ii) does not elect to so adjust the Conversion Rate, in which case the Holders will have the right to convert the Notes and, if applicable, receive any Additional Shares as set forth in Section 4.06. In addition, upon a Public Acquirer Change of Control, in lieu of converting securities, the Holders can, subject to certain conditions, require the Company to repurchase all of a portion of the Notes pursuant to Section 5.15.

(3)                                  If the Company elects to make the adjustment to the Conversion Rate described in Section 4.07(1) in the event of a Public Acquirer Change of Control, (i)  Section 4.12 will not apply to such transaction; and (ii) the Company and the acquirer or other issuer of Public Acquirer Common Stock shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture, if such supplemental indenture is then required to so comply) providing that such Notes shall, without the consent of any Holders of Notes, be convertible into shares of Public Acquirer Common Stock at the adjusted Conversion Rate as specified above (subject to the conditions relating to conversion of Debentures specified herein. Such supplemental indenture shall provide for adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 4, as determined in good faith by the Company or the Public Acquirer.

Section 4.08.                                                 Adjustment for Tax Purposes.

The Company shall be entitled to make such decreases in the Conversion Price, in addition to those required by Section 4.05, as it in its discretion shall determine to be advisable in order that any stock dividends, subdivisions of shares, distributions of rights to purchase stock or securities or distributions of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable.

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Section 4.09.                                                 No Adjustment.

No adjustment need be made for a change in the par value or a change to no par value of the Common Stock.

Section 4.10.                                                 Conversion Price Reset.

Effective as of September 30, 2009, the Conversion Price shall be reset so as to equal the lower of (A) the then current Conversion Price and (B) the arithmetic average of the Weighted Average Price of the Common Stock for the 30 consecutive trading days preceding September 30, 2009 (the “Reset Trading Average”), provided that, in no event, shall the Conversion Price be reset to a conversion price below $3.24 per share (subject to adjustment in the same manner and as of any date as Section 4.05 hereof), as adjusted to give effect to any adjustments to the Conversion Price or Conversion Rate that would have been made prior to September 30, 2009 had Section 4.05(2)(a) been in effect prior to September 30, 2009.

For the avoidance of doubt, in no event will the Conversion Price be adjusted upwards pursuant to this Section 4.10.

Section 4.11.                                                 Notice of Conversion Price Adjustment & Election.

In the event that:

(1)                                  the Company takes any action which would require, or there is otherwise required, an adjustment in the Conversion Price or Conversion Rate;

(2)                                  the Company consolidates or merges with, or transfers all or substantially all of its property and assets to, another corporation and shareholders of the Company must approve the transaction; or

(3)                                  there is a dissolution or liquidation of the Company; or

(4)                                  any election contemplated by Section 4.07(b),

then Company shall mail to Holders and file with the Trustee a notice stating (i) the change or adjustment and (ii) the proposed record or effective date, as the case may be, and deliver to the Trustee an Officers’ Certificate briefly stating the facts requiring the adjustment or election and the manner of computing it. The Company shall mail the notice at least ten Business Days before such date. Failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in this Section 4.12. Unless and until the Trustee receives any such Officers’ Certificate, it may assume without inquiry that the Conversion Price or Conversion Rate has not been adjusted and that the last Conversion Price or Conversion Rate of which it has knowledge remains in effect.

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Section 4.12.                                                 Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege.

Subject to the further provisions of this Article 4 and paragraph 9 in the terms of the Form of Note, in the event the Company (i) reclassifies or changes its Common Stock (other than changes resulting from a subdivision or combination) or (ii) consolidates or combines with or merges into any Person or sells or conveys to another Person all or substantially all of its property and assets, and the holders of the Company’s Common Stock receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for their Common Stock, the Holders will thereby have the continuing right to convert their Notes into the consideration they would have received if they had converted their Notes immediately prior to such re-classification, change, consolidation, merger, sale or conveyance (the “Conversion Securities”).

If any of the following shall occur, namely:  (a) any reclassification or change of shares of Common Stock issuable upon conversion of the Notes (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination, or any other change for which an adjustment is provided in Section 4.05); (b) any consolidation or merger or combination to which the Company is a party other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination) in, outstanding shares of Common Stock; or (c) any sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to any person, then the Company, or such successor, purchasing or transferee corporation, as the case may be, shall, as a condition precedent to such reclassification, change, combination, consolidation, merger, sale or conveyance, execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Note then outstanding shall have the right to convert such Note into the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, change, combination, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock deliverable upon conversion of such Note immediately prior to such reclassification, change, combination, consolidation, merger, sale or conveyance. Such supplemental indenture shall provide for adjustments of the Conversion Price which shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Price provided for in this Article 4. If, in the case of any such consolidation, merger, combination, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock include shares of stock or other securities and property of a person other than the successor, purchasing or transferee corporation, as the case may be, in such consolidation, merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.12 shall similarly apply to successive reclassifications, changes, combinations, consolidations, mergers, sales or conveyances.

In the event the Company shall execute a supplemental indenture pursuant to this Section 4.12, the Company shall promptly file with the Trustee (x) an Officers’ Certificate briefly stating

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the reasons therefor, the kind or amount of shares of stock or other securities or property (including cash) receivable by Holders of the Notes upon the conversion of their Notes after any such reclassification, change, combination, consolidation, merger, sale or conveyance, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and (y) an Opinion of Counsel that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders.

Section 4.13.                                                 Trustee’s Disclaimer.

The Trustee shall have no duty to determine when an adjustment under this Article 4 should be made, how it should be made or what such adjustment should be, but may accept as conclusive evidence of that fact or the correctness of any such adjustment, and shall be protected in relying upon, an Officers’ Certificate including the Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 4.12. The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of Notes, and the Trustee shall not be responsible for the Company’s failure to comply with any provisions of this Article 4.

The Trustee shall not be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture executed pursuant to Section 4.12, but may accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying upon, the Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 4.12.

ARTICLE 5.
COVENANTS

Section 5.01.                                                 Payment of Notes.

The Company shall pay or cause to be paid the Principal of, premium, if any, Redemption Price, if applicable, Interest and any other amounts to be paid on the Notes on the dates and in the manner provided in this Indenture and the Notes. Principal, premium, if any, Redemption Price, if applicable, Interest and any other amounts to be paid shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all Principal of, premium, if any, Redemption Price, if applicable, Interest and any other amounts to be paid then due.

The Company shall pay Late Charges (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue Principal to the extent lawful; it shall pay Late Charges (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of Interest (without regard to any applicable grace period) at the same rate to the extent lawful.

Section 5.02.                                                 Maintenance of Office or Agency.

The Company shall maintain in the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or

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

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

The Company hereby designates the corporate trust office of the Trustee, presently located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ as one such office or agency of the Company in accordance with Section 2.03.

Section 5.03.                                                 Reports.

(a)                                  Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company shall furnish to the Holders of Notes or cause the Trustee to furnish to the Holders if not filed electronically with the SEC and will post on the Company’s website for public availability, within the time periods specified in the SEC’s then existing rules and regulations, all quarterly and annual consolidated financial statements that would be required to be filed with the SEC on Form 10-Q or Form 10-QSB and on Form 10-K or Form 10-KSB and all information and/or financial statements on Form 8-K if the Company were required to file such reports. All such financial statements will be prepared in all material respects in accordance with SEC Regulation S-X and will be accompanied by:  (i) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in substantially the form that would be required if filed with the SEC with a Form 10-Q or Form 10-QSB or Form 10-K or Form 10-KSB, as the case may be; (ii) a certification by the Company’s chief financial officer that no Default has occurred and is continuing under this Indenture; and (iii) in the case of annual financial statements, an audit report thereon by the Company’s independent public accountants.

If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

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(b)                                 If, at any time the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in this Section 5.03 with the SEC within the time periods specified above unless the SEC will not accept such a filing. The Company will not take any action for the purpose of causing the SEC not to accept any such filings.

(c)                                  For so long as any Notes remain outstanding, the Company shall

(1)                                  subject to Section 5.03(d) below, post on the Company’s website for public availability all material information about the Company and its Subsidiaries that the Company has provided to any Holder or beneficial holder of Notes or other securities of the Company after the date of this Indenture (other than a Holder who after the date of this Indenture has entered into a confidentiality or non-disclosure agreement with the Company); and

(2)                                  furnish to the Holders, beneficial holders of Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

(d)                                 Notwithstanding this Section 5.03, the Company shall not be required to publicly disclose any information to the extent that it is subject to a confidentiality, non-disclosure or other similar agreement prohibiting such disclosure; provided, however, that the Company shall use commercially reasonable efforts not to enter into any such confidentiality agreements that would prevent its compliance with the other provisions of this Section 5.03.

Section 5.04.                                                 Compliance Certificate.

(a)                                  The Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate, one of the signatories of which is the Company’s Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer, stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company and each obligor under the Notes and this Indenture has kept, observed, performed and fulfilled its obligations under this Indenture, the Note Guarantee, the Pledge Agreement and the Collateral Documents, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company and each such obligor has kept, observed, performed and fulfilled each and every covenant contained in this Indenture, the Notes, the Note Guarantees, the Pledge Agreement and the Collateral Documents and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture, the Notes, the Note Guarantees, the Pledge Agreement and the Collateral Documents (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company or such obligor is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the Principal of, Interest or any other amounts due, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company or such obligor is taking or proposes to take with respect thereto.

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(b)                                 The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware of any Event of Default, an Officers’ Certificate specifying such Event of Default and what action the Company is taking or proposes to take with respect thereto.

Section 5.05.                                                 Taxes.

The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

Section 5.06.                                                 Stay, Extension and Usury Laws.

The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.