Common use of Issue of Securities Clause in Contracts

Issue of Securities. SECTION 3.01. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. The Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company; (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authentication.

Issue of Securities. SECTION 3.01(a) On or before the Closing, DIMAC Holdings will have authorized the original issue and sale to the Purchasers, in the respective amounts set forth on Schedule 1.1 hereto, of (i) $30,000,000 aggregate principal amount of its 15 1/2% Senior Notes due October 22, 2009, Series A (the "Series A Notes"), (ii) 20,000 shares (the "Shares") of its Common Stock, par value $.001 per share ("Common Stock"), and (iii) warrants (the "Warrants") to purchase an aggregate of 28,205 shares of Common Stock, pursuant to a Warrant Agreement in the form attached hereto as Annex A (the "Warrant Agreement"). At The Series A Notes will be issued pursuant to an indenture in the form attached hereto as Annex B (the "Indenture"), to be dated as of October 22, 1998, between DIMAC Holdings and Wilmington Trust Company, a Delaware banking corporation, as trustee (the "Trustee"). Each Holder of Series A Notes will have certain registration rights as set forth in the Registration Rights Agreement in the form attached hereto as Annex C (the "Notes Registration Rights Agreement"). Pursuant to the Notes Registration Rights Agreement, the DIMAC Holdings will agree, among other things, to file with the SEC (i) a registration statement under the Securities Act (the "Exchange Offer Registration Statement") relating to, among other things, the 15 1/2% Senior Notes due October 22, 2009, Series B, of DIMAC Holdings (the "Series B Notes" and, together with the Series A Notes, the "Notes"), identical in all material respects to the Series A Notes (except that the Series B Notes shall have been registered pursuant to such registration statement and shall not be subject to any time and from time registration rights of the holders thereof) to time after be offered in exchange for the execution Series A Notes (such offer to exchange being referred to as the "Registered Exchange Offer") and/or (ii) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the "Shelf Registration Statement") relating to the resale by certain holders of the Series A Notes. In addition, on or before the Closing, DIMAC Holdings shall authorize the issue and delivery of this IndenturePIK Notes pursuant to Section 1 of the Notes. The aggregate principal amount of the Notes outstanding at any time may not exceed $30,000,000 plus the aggregate principal amount of PIK Notes issued pursuant to Section 1 of the Notes. The Notes, the Company may deliver Securities of any series executed by Shares and the Company Warrants shall each individually be referred to herein as a "Security" and collectively referred to herein as the Trustee for authentication. The Trustee shall thereupon authenticate "Securities." Upon original issuance thereof, and deliver until such Securities to or upon time as the written order same is no longer required under the applicable requirements of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such SecuritiesSecurities Act, the Trustee Series A Notes shall be entitled to receivebear the following legend: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) AS PERMITTING RESALES BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DIMAC HOLDINGS, INC. (THE "ISSUER") OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) EXCEPT (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS PURCHASING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. Upon original issuance thereof and (subject to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to until such resolution, certified by time as is no longer required under the Secretary or an Assistant Secretary applicable requirements of the Company;Internal Revenue Code of 1986, as amended, the Notes shall bear the following legend: THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR PURPOSES OF SECTIONS 1271 ET. SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS NOTE IS OCTOBER 22, 1998. FOR INFORMATION REGARDING THE ISSUE PRICE, AMOUNT OF OID PER $1,000 OF PRINCIPAL AMOUNT AND YIELD TO MATURITY FOR PURPOSES OF THE OID RULES, PLEASE CONTACT THE CHIEF FINANCIAL OFFICER OF THE ISSUER AT 0000 XXXXXXXXX XXXXXXXX XXXX, XXXXX X-000, XXXXXXX, XX, XXXXXXXX NO. (404) 705-9929. (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared Each Warrant shall be substantially in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture attached as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled Exhibit A to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issuedWarrant Agreement. Each Security Warrant shall be dated the date of its authenticationissuance. The Warrants will be exercisable, in the manner provided in the Warrant Agreement and the Warrants, for a number of shares of Common Stock as provided in the Warrant Agreement (the "Warrant Shares"). Each Holder of Shares or Warrant Shares will have certain registration rights and other rights and obligations with respect to the Shares and the Warrant Shares, as provided in the Stockholders' Agreement (and the related supplemental letter from DIMAC Holdings, XxXxxx De Leeuw & Co. XX, L.P. and XxXxxx De Leeuw & Co. IV Associates, L.P.) in the form attached hereto as Annex D (such Stockholders' Agreement, as supplemented and modified by such letter, being referenced herein as the "Stockholders' Agreement"). The terms and provisions contained in the Notes, the Notes Registration Rights Agreement, the Stockholders' Agreement, the Warrants and the Warrant Agreement shall constitute, and are hereby expressly made, a part of this Agreement and, to the extent applicable, the parties hereto, by their execution and delivery of this Agreement, expressly agree to such terms and provisions and to be bound thereby.

Issue of Securities. SECTION 3.01. At any time and from time to time after On or before the execution and delivery of this IndentureClosing (as hereinafter defined), the Company may deliver Securities will have authorized the issuance of any series executed by its 12% Senior Subordinated Notes due February 1, 2002 (the Company to "Senior Subordinated Notes"), in the Trustee for authentication. The Trustee shall thereupon authenticate and deliver such Securities to or upon aggregate principal amount of $20,000,000, the written order issuance, at the option of the Company, signed by its Chairmanof Secondary Notes (as defined below) and the issuance, any Vice Chairmanat the option of the Purchasers, its President or any Vice Presidentof up to $4,000,000 of additional Senior Subordinated Notes (the "Incremental Notes") due February 1, without any further action by 2002 as provided in Section 1.9 hereof, each to be issued in the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securitiesform attached hereto as Annex A. The Senior Subordinated Notes, the Trustee shall be entitled Secondary Notes and the Incremental Notes are collectively referred to receiveherein as the "Notes." On or before the Closing, and the Company will have authorized the issuance of its warrants (subject the "Initial Warrants") to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, purchase an appropriate record aggregate of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary 6,616,367 shares of the Company; (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation Common Stock of the Company, enforceable $0.0001 par value ("Common Stock"), and the issuance of Incremental Warrants (as defined in accordance with its termsSection 1.9 hereof), subject pursuant to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company a Warrant Agreement in the manner form attached hereto as Annex B (the "Warrant Agreement"). The Initial Warrants and subject the Incremental Warrants are collectively referred to any conditions herein as the "Warrants." Capitalized terms used herein without definition shall have the meanings specified in such Opinion Section 7 hereof. The Notes, the Subsidiary Guarantees (as defined below) and the Warrants are collectively referred to herein as the "Securities." Each Note will be in the principal amount of Counsel$100,000 or integral multiples of $50,000 in excess thereof, will constitute valid and legally binding obligations except that Secondary Notes may be issued in denominations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, than $100,000; and will be entitled dated as provided in Section 1.2 or 1.9 hereof, as applicable, or, in the case of Secondary Notes, will be dated as of the interest payment date on which such Secondary Notes were issued. The Notes will be guaranteed by the Subsidiary Guarantors, each of whom shall execute a guarantee in the form attached hereto as Annex C (the "Subsidiary Guarantees"). The Company may, at its option, elect to pay interest on the benefits Notes in additional Notes ("Secondary Notes") in lieu of this Indenture; (4) that the Company has payment of up to one-half of the corporate power to issue such Securities, and has duly taken all necessary corporate action interest in cash as provided in the 7 Notes. Each issuance of Secondary Notes in lieu of any cash interest payment on the Notes shall be made pro rata with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of outstanding Notes, and the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline aggregate amounts of interest payable in the form of Secondary Notes to authenticate a Holder of outstanding Notes and deliver any Securities under this issue to such Holder a single Secondary Note in payment thereof. Each Warrant will be dated as provided in Section if 1.2 hereof and will otherwise be in the issue form of such Securities pursuant the Warrant attached as Exhibit A to this Indenture the Warrant Agreement. The Warrants will affect be exercisable, in the Trustee's own rightsmanner provided in the Warrant Agreement and the Warrants, duties or immunities under for a number of shares of Common Stock as provided for in the Securities Warrant Agreement (the "Warrant Shares" and this Indenture or otherwise together with the Warrants, the "Equity Securities"). You will have certain registration rights with respect to the Warrant Shares as provided in a manner which is not reasonably acceptable to Registration Rights Agreement in the Trustee. Notwithstanding form attached hereto as Annex D (the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authentication"Registration Rights Agreement").

Issue of Securities. SECTION 3.01(a) On or before the Closing, DEC will have authorized the original issue and sale to the Purchasers, in the respective amounts set forth on the signature pages hereof, of $35,000,000 aggregate principal amount of its 121/2% Senior Notes due April 24, 2003 (the "Notes"), to be substantially in the form attached hereto as Annex A, and an aggregate of 210,868 shares (the "Closing Shares") of its Class A Common Stock, par value $0.0001 per share (the "Class A Common Stock"). At In addition, on or before the Closing, DEC shall authorize the issue and delivery of PIK Notes pursuant to Section 1 of the Notes and the issue and delivery of additional shares of Class A Common Stock (the "Additional Class A Shares" and together with the Closing Shares, the "Class A Shares") pursuant to the Share Price Adjustment Agreement in the form attached hereto as Annex B (the "Share Price Adjustment Agreement"). The aggregate principal amount of the Notes outstanding at any time may not exceed $35,000,000 plus the aggregate principal amount of PIK Notes issued pursuant to Section 1 of the Notes. The Notes and from time the Class A Shares shall each individually be referred to time after herein as a "Security" and collectively referred to herein as the "Securities." (b) Each Holder of Class A Shares will have certain registration rights as set forth in the Amended and Restated Registration Rights Agreement in the form attached hereto as Annex C (the "Registration Rights Agreement") and other rights and obligations with respect to the Class A Shares, as provided in the Amended and Restated Stockholders' Agreement in the form attached hereto as Annex D (the "Stockholders' Agreement"). The terms and provisions pertaining to the Class A Shares and contained in the Share Price Adjustment Agreement shall constitute, and are hereby expressly made, a part of this Agreement and, to the extent applicable, DEC and the Holders, by their execution and delivery of this IndentureAgreement, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. The Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation expressly agree to such Securities, the Trustee shall be entitled to receive, terms and (subject to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company; (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authenticationthereby.

Issue of Securities. SECTION 3.01. At any time and from time to time after (a) On or before the execution and delivery of this IndentureClosing, the Company may deliver Securities will have authorized the original issue and sale to the Purchasers, in the respective amounts set forth on Schedule 1.1 hereto, of any series executed by (i) up to $80,000,000 aggregate principal amount of its 11.0% Senior Notes due 2014 (the “Notes”) and (ii) warrants (the “Warrants”) to purchase up to an aggregate of 688,913 shares of common stock, par value $0.01 per share, of the Company to the Trustee for authentication(“Common Stock”). The Trustee Notes and the Warrants shall thereupon authenticate each individually be referred to herein as a “Security” and deliver such Securities collectively referred to or upon herein as the written order of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by the Company. In authenticating such “Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company;.” (b) an executed supplemental indentureThe Securities will be offered and sold to the Purchasers (the “Offering”) pursuant to (i) the exemption from registration afforded by Section 4(a)(2) of the Securities Act or Regulation S under the Securities Act and (ii) the Company’s offering memorandum dated October 9, if any;2012, as revised by the revised offering memorandum dated October 10, 2012 (the “Offering Memorandum”). (c) The Notes will be issued pursuant to an Officers' Certificate; and (d) an Opinion of Counsel prepared indenture in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture attached hereto as permitted by Section 13.01(gAnnex A (the “Indenture”), or by both such resolution or resolutions and such supplemental indentureto be dated as of the Closing Date, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by between the Company and U.S. Bank National Association as trustee (the “Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued”). Each Security Note shall be dated the date of its authenticationissuance. (d) The Warrants will be issued pursuant to a warrant agreement substantially in the form attached as Annex B hereto (the “Warrant Agreement”). Each Warrant shall be dated the date of its issuance. The Warrants will be exercisable, in the manner provided in the Warrants, for a number of shares of Common Stock as provided in the Warrants (the “Warrant Shares”). Each Holder of Warrants or Warrant Shares will have certain registration rights with respect to Warrant Shares and other rights and obligations with respect to Warrants and Warrant Shares, as provided herein and in the Warrant Agreement. (e) The terms and provisions contained in the Indenture, the Notes, the Warrant Agreement and the Warrants shall constitute, and are hereby expressly made, a part of this Agreement and, to the extent applicable, the parties hereto, by their execution and delivery of this Agreement, expressly agree to such terms and provisions and to be bound thereby. (f) Upon original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Securities shall bear the following legend: THIS OFFER AND SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS IN THE CASE OF RULE 144A SECURITIES: ONE YEAR (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144 OR ITS SUCCESSOR RULE AS PERMITTING RESALES BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT RESTRICTION); OR IN THE CASE OF REGULATION S SECURITIES: [40 DAYS]1 [ONE YEAR]2 AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH HARVEST NATURAL RESOURCES, INC. (THE “ISSUER”) OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) EXCEPT (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS PURCHASING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW 1 To be included only with respect to debt securities. 2 To be included only with respect to equity securities. TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE [TRUSTEE’S]3 [WARRANT AGENT’S]4 RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE [TRUSTEE]5 [WARRANT AGENT]6. [EACH HOLDER AGREES NOT TO ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARDS TO THE WARRANTS OR WARRANT SHARES UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.]7 THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. Upon original issuance thereof and until such time as is no longer required under the applicable requirements of the Internal Revenue Code, the Notes shall bear the following legend: THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTIONS 1271 ET. SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR INFORMATION REGARDING THE ISSUE DATE, ISSUE PRICE, AMOUNT OF OID PER $1,000 OF PRINCIPAL AMOUNT AND YIELD TO MATURITY FOR PURPOSES OF THE OID RULES, PLEASE CONTACT THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT 0000 XXXXXXX XXXXXXX, XXXXX 000, XXXXXXX, XXXXX 00000, FAX: (000) 000-0000.

Issue of Securities. SECTION 3.01. At any time (a) On or before the Closing Date, (i) the Issuer will have authorized the issue and sale of $60,000,000 aggregate principal amount of the Bridge Notes; and (ii) the Issuer will have authorized the issuance of the Warrants pursuant to a Warrant Agreement, substantially in the form attached hereto as Exhibit E (as amended, supplemented or otherwise modified from time to time after in accordance with the execution and delivery of this Indentureterms thereof, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication"Warrant Agreement"). The Trustee Notes and the Warrants shall thereupon authenticate individually be referred to herein as a "Security" and deliver such Securities collectively referred to or upon herein as the written order of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by the Company. In authenticating such "Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company;". (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared The Bridge Notes shall be substantially in accordance with Section 14.03, which shall also state: (1) that the form attached hereto as Exhibit A and terms of shall include such Securities have been established notations, legends or endorsements set forth therefor or required by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issuedlaw. Each Security Bridge Note shall be dated the date of its authenticationissuance. The aggregate principal amount of the Bridge Notes shall be due and payable on the Bridge Note Maturity Date. The terms and provisions contained in the Bridge Notes shall constitute, and are hereby expressly made, a part of this Agreement and, to the extent applicable, the Issuer and the Purchasers, by their execution and delivery of this Agreement, expressly agree to such terms and provisions and to be bound thereby. (c) Each Warrant shall be evidenced by a certificate substantially in the form attached as Exhibit A to the Warrant Agreement (each such certificate being referred to herein as a "Warrant Certificate"). Each Warrant Certificate shall be dated the date of its issuance. The Warrants will be exercisable, in the manner provided in the Warrant Agreement and the applicable Warrant Certificate, for a number of shares of Common Stock as provided therein (the "Warrant Shares"). The Holders of Warrant Shares will have certain registration rights with respect to the Warrant Shares as set forth in the Warrant Registration Rights. The terms and provisions contained in the Warrant Agreement and the Warrant Certificates shall constitute, and are hereby expressly made, a part of this Agreement and, to the extent applicable, the Purchasers, by their execution and delivery of this Agreement, expressly agree to such terms and provisions and to be bound thereby.

Issue of Securities. SECTION 3.01. At any time (a) On or before the Closing Date, (i) the Company will have authorized the issue and sale of U.S.$[_______] aggregate principal amount of the Notes; and (ii) the Company will have authorized the issue and sale of the Warrants pursuant to an Amended and Restated Warrant Agreement substantially in the form attached hereto as Exhibit B (as amended or otherwise modified from time to time after in accordance with the execution and delivery of this Indentureterms thereof, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication"Warrant Agreement"). The Trustee Notes and the Warrants shall thereupon authenticate individually be referred to herein as a "Security" and deliver such Securities collectively referred to or upon herein as the written order of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by the Company. In authenticating such "Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company;". (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared The Notes shall be substantially in accordance with Section 14.03, which shall also state: (1) that the form attached hereto as Exhibit A and terms of shall include such Securities have been established notations, legends or endorsements set forth therefor or required by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issuedlaw. Each Security Note shall be dated the date of its authenticationissuance. The aggregate principal amount of the Notes shall be due and payable on the Stated Maturity Date. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Agreement and, to the extent applicable, the Company and the Purchasers, by their execution and delivery of this Agreement, expressly agree to such terms and provisions and to be bound thereby. (c) Each Warrant shall be evidenced by a certificate substantially in the form attached as Exhibit A to the Warrant Agreement (each such certificate being referred to herein as a "Warrant Certificate"). Each Warrant Certificate shall be dated the date of its issuance. The Warrants will be exercisable, in the manner provided in the Warrant Agreement and the applicable Warrant Certificate, for a number of shares of Common Stock as provided therein (the "Warrant Shares"). The Holders of Warrant Shares will have certain rights with respect to the Warrant Shares as provided in the Registration Rights Agreement. The terms and provisions contained in the Warrant Agreement and the Warrant Certificates shall constitute, and are hereby expressly made, a part of this Agreement and, to the extent applicable, the Company and the Purchasers, by their execution and delivery of this Agreement, expressly agree to such terms and provisions and to be bound thereby.

Issue of Securities. SECTION 3.01. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee or the Authenticating Agent for authentication. The Trustee or the Authenticating Agent shall thereupon authenticate and deliver such Securities to or upon the written order of the Company, signed by its Chairman, any Vice ChairmanChairman of the Board of Directors, its President or any a Vice President, without any further action by the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 10.02315 of the Trust Indenture Act) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company; (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee or the Authenticating Agent and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the TrusteeTrustee or the Authenticating Agent, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authentication.execution

Issue of Securities. SECTION 3.01Holding and the Issuer have authorized the issuance of 70,000 units (the "UNITS") consisting of $1,000 principal amount of the Notes and one Warrant (the "OFFERING"). At any time The Notes are to be issued pursuant to the Indenture and from time the Warrants are to time after be issued pursuant to the execution Warrant Agreement. The Units, Notes and delivery Warrants are referred to herein as the "SECURITIES". Each Note will be substantially in the form of this the Note set forth as Exhibit A to the Indenture. Each Warrant will be substantially in the form of the Warrant set forth as Exhibit A to the Warrant Agreement. The Securities will be offered and sold to the Initial Purchaser without being registered under the Act, in reliance on exemptions therefrom. The Securities are being offered in connection with a Merger Agreement dated June 5, 1997 (as amended through the date hereof and together with all ancillary agreements entered into therewith, the Company may deliver Securities "MERGER AGREEMENT"). Pursuant to the Merger Agreement, (i) the net proceeds of any series executed the Offering, together with the proceeds from an equity contribution of up to $15,000,000 (the "EQUITY CONTRIBUTION") from Holding, will be used by the Issuer to acquire all of the outstanding capital stock of Glasstech, Inc. ("GLASSTECH") from its existing stockholders and (ii) the Issuer will be merged with and into Glasstech (the "MERGER"), with Glasstech surviving the Merger (the "SURVIVING COMPANY"). In addition, concurrently with the consummation of the Merger, the Surviving Company to will execute and deliver a credit agreement (the Trustee for authentication"CREDIT AGREEMENT") con- sisting of a $10.0 million revolving credit facility (the "REVOLVING CREDIT FACILITY"). The Trustee shall thereupon authenticate and deliver such Securities to or upon the written order time of consummation of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by Merger is referred to herein as the Company. In authenticating such Securities, and accepting "EFFECTIVE TIME." At the additional responsibilities under this Indenture in relation to such SecuritiesEffective Time, the Trustee shall be entitled to receive, and (subject to Section 10.02) shall be fully protected in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company; (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Surviving Company and the Trustee, Trustee will constitute enter into a valid and legally binding obligation first supplemental indenture to the Indenture (the "SUPPLEMENTAL INDENTURE") providing for the express assumption by the Surviving Company of the Companycovenants, enforceable agreements and undertakings of the Issuer in accordance the Indenture and under the Notes. In connection with its terms, subject to bankruptcy, insolvency, reorganization and other laws the sale of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such the Securities, when authenticated Holding, the Issuer and delivered by Glasstech (collectively, the Trustee "GLASSTECH ENTITIES") have prepared a preliminary offering memorandum dated June 10, 1997 (the "PRELIMINARY MEMORANDUM") and issued by prepared a final offering memorandum dated June 27, 1997 (the Company in the manner and subject to any conditions specified in such Opinion of Counsel"FINAL MEMORANDUM" and, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file together with the Securities and Exchange Commission is outstanding; and (6Preliminary Memorandum, the "MEMORANDUM") that all requirements setting forth or including a description of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the TrusteeNotes, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenturethe Offering, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery a description of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate Glasstech Entities and deliver Glasstech's Subsidiaries and any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable material developments relating to the Trustee. Notwithstanding the provisions of Section 2.02 Glasstech Entities and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated Glasstech's Subsidiaries occurring after the date of its authenticationthe most recent financial statements included therein.

Issue of Securities. SECTION 3.01(a) Subject to the satisfaction (or waiver) of the conditions set forth herein and subject to the teens and conditions of articles L. 228-38 and seq. At any time and from time to time after of the execution and delivery of this IndentureFrench commercial code, the Company may deliver Securities of any series executed by the Company shall issue to the Trustee for authenticationPurchaser, and the Purchaser agrees to subscribe, on the Initial Closing Date (as defined below), to a total of 10,000 Bonds, each Bond having a nominal value of $100 (as converted into Euros). The Trustee shall thereupon authenticate and deliver such Securities to or upon consideration for the written order subscription of the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any entirety of the Bonds shall be the aggregate amount of $1,000,000 (as converted into Euros) (the “Principal Amount”). The terms and conditions of the Bonds are further action by the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture set out in relation to such Securities, the Trustee Exhibit B. (b) The Purchaser shall be entitled to receivedemand by written request, at any time following the date hereof (and before the Maturity Date (subject as defined in Exhibit B) of the Bonds), that the Company undertake to Section 10.02) convene as soon as possible following such demand, an extraordinary meeting of its shareholders, such convening notice being accompanied by an agenda proposing, inter alia, resolutions authorizing the amendment of the terms and conditions of the Bonds such that the Bonds become the Convertible Bonds (the “Resolutions”). The Company shall be fully protected in relying upon: use its best efforts to obtain the approval of the Resolutions by the shareholders. Notwithstanding the foregoing, if (ai) a Board Resolution relating thereto and, if applicable, an appropriate record notice of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary a meeting of the Company; ’s shareholders in connection with the vote for approval of the Resolutions is not delivered to the Company’s shareholders within ten (b10) an executed supplemental indenturebusiness days of the execution hereof, (ii) a meeting of the Company’s shareholders in connection with the vote for approval of the Resolutions does not occur within forty-five (45) days of the execution hereof, or (iii) the Company’s shareholders do not approve the Resolutions; then the Purchaser shall be entitled to demand the early redemption of the Bonds, it being provided that the Company can repay the applicable redemption amount by issuing the Repayment Shares, in one or several times at the Purchaser’s option, for a total issuance price of $1,100,000 (as converted into Euros), each ordinary share being issued at price equal to 90% of the average VWAP (as defined below) in the five (5) Trading Days immediately preceding the issuance date, such average price being calculated on the basis of the trading prices published’ on the NYSE Euronext website; it being provided that if any;the result of the above calculation is a number with decimals, such number shall be rounded down to the nearest whole number; further provided, that if the result of the calculation of the price of the Repayment Shares is a number below the then applicable Nominal Value (as defined below), the Company shall owe to the Purchaser the True Up Receivable (as defined below) and the True Up Shares (as defined below) in accordance with the terms of Sections 1.1 (d)(i) and (ii), which shall apply mutatis mutandis. (c) an Officers' Certificate; andUnder the Convertible Bonds, the Purchaser shall be entitled to obtain, in one or several times, the conversion of all or part of the Convertible Bonds into, at the Purchaser’s option, either (i) Bond Shares or (ii) DSR Preferred Shares. The terms and conditions of the Convertible Bonds are further set out in Exhibit C. (d) an Opinion If converted into Bond Shares, each Convertible Bond shall be converted into a number of Counsel prepared in accordance with Section 14.03, which shall also state: Bond Shares (1N) calculated as follows (it being provided that if the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(g), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding obligation result of the Companybelow calculation is a number with decimals, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will number shall be entitled rounded down to the benefits of this Indenture; (4) that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance; (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file with the Securities and Exchange Commission is outstanding; and (6) that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the Trustee, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authentication.nearest whole number):

Issue of Securities. SECTION 3.01The Company has authorized the issuance of $85,000,000 aggregate principal amount of the Notes which are to be issued pursuant to the Indenture. At any time and from time Each Note will be substantially in the form of the Note set forth as Exhibit A to time after the execution and delivery Indenture. Notes issued in book-entry form will be issued in the name of Cede & Co., as nominee of The Depository Trust Company (the "Depositary") pursuant to a letter of representations, to be dated as of the date of the Closing (as defined in Section 2.2 of this IndentureAgreement) (the "DTC Letter of Representations"), the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. The Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of among the Company, signed by its Chairman, any Vice Chairman, its President or any Vice President, without any further action by the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such SecuritiesGuarantors, the Trustee shall be entitled to receiveand the Depositary. The payment of principal of, premium and Additional Interest (subject to Section 10.02) shall be fully protected as defined in relying upon: (a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, certified by the Secretary or an Assistant Secretary of the Company; (b) an executed supplemental indenture, if any; (c) an Officers' Certificate; and (d) an Opinion of Counsel prepared in accordance with Section 14.03, which shall also state: (1) that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental indenture as permitted by Section 13.01(gIndenture), or by both such resolution or resolutions and such supplemental indenture, in conformity with the provisions of this Indenture; (2) that the supplemental indenture, if any, when executed and delivered interest on the Notes and the Exchange Notes will be fully and unconditionally guaranteed on a senior subordinated basis, jointly and severally by the Company and Guarantors, pursuant to their guarantees (the Trustee, will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (3"Guarantees") that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any the terms and conditions specified set forth in such Opinion of Counselthe Indenture and the exhibits and attachments thereto. The Notes and the Guarantees attached thereto are herein collectively referred to as the "Securities"; and the Exchange Notes and the Guarantees attached thereto are herein collectively referred to as the "Exchange Securities." The Securities will be offered and sold to the Initial Purchasers without being registered under the Act, will constitute valid and legally binding obligations in reliance on exemptions therefrom. In connection with the sale of the CompanySecurities, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of this Indenture; (4) that the Company has prepared a preliminary offering memorandum dated March 20, 2003 (the corporate power to issue such Securities"Preliminary Memorandum") and prepared a final offering memorandum dated March 20, and has duly taken all necessary corporate action with respect to such issuance; 2003 (5) that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any law or regulation or of any indenture"Final Memorandum" and, mortgage or other agreement by which the Company is bound and under which long-term debt of the Company as reflected in its latest financial statements on file together with the Securities and Exchange Commission is outstanding; and (6Preliminary Memorandum, the "Memorandum") that all requirements setting forth or including a description of this Indenture applicable to the Company in respect of the execution and delivery by the Company of such Securities and of such supplemental indenture, if any, have been complied with and that, assuming (a) all requisite corporate authorization on the part of the Trustee, (b) continued compliance by the Trustee with the terms of the Indenture specifically applicable to the TrusteeSecurities, and (c) due authentication and delivery of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms of this Indenturethe offering, and that, other than compliance with federal and state securities laws, no authorization, approval or consent by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental indenture or for the creation, issuance, authentication and delivery a description of the Securities pursuant to this Indenture. The Trustee shall have the right to decline to authenticate Company and deliver its subsidiaries and any Securities under this Section if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable material developments relating to the Trustee. Notwithstanding the provisions of Section 2.02 Company and of this Section 3.01, if all the Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate or supplemental indenture otherwise required pursuant to Section 2.02 or the written order of the Company, Officers' Certificate and Opinion of Counsel required pursuant to this Section 3.01 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated its subsidiaries occurring after the date of its authenticationthe most recent financial statements included therein.