Exhibit 4.14


 


SATCON TECHNOLOGY CORPORATION,

as Issuer,


 


and


 


                                 ,

as Trustee


 


INDENTURE


 


Dated as of               ,
20    


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  6

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  6

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO THE SECURITIES

  	
  7

  
	
   

  	
   

  
	
  Section 2.01.

  	
  Issuable in Series

  	
  7

  
	
  Section 2.02.

  	
  Establishment of Terms of Series of Securities

  	
  7

  
	
  Section 2.03.

  	
  Execution and Authentication

  	
  9

  
	
  Section 2.04.

  	
  Registrar and Paying Agent

  	
  10

  
	
  Section 2.05.

  	
  Paying Agent to Hold Assets in Trust

  	
  10

  
	
  Section 2.06.

  	
  Holder Lists

  	
  11

  
	
  Section 2.07.

  	
  Transfer and Exchange

  	
  11

  
	
  Section 2.08.

  	
  Replacement Securities

  	
  11

  
	
  Section 2.09.

  	
  Outstanding Securities

  	
  12

  
	
  Section 2.10.

  	
  Treasury Securities

  	
  12

  
	
  Section 2.11.

  	
  Temporary Securities

  	
  12

  
	
  Section 2.12.

  	
  Cancellation

  	
  13

  
	
  Section 2.13.

  	
  Defaulted Interest

  	
  13

  
	
  Section 2.14.

  	
  Global Securities

  	
  13

  
	
  Section 2.15.

  	
  CUSIP and ISIN Numbers

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE REDEMPTION

  	
  14

  
	
   

  	
   

  
	
  Section 3.01.

  	
  Notices to Trustee

  	
  14

  
	
  Section 3.02.

  	
  Selection of Securities to be Redeemed

  	
  14

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  15

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  15

  
	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
  15

  
	
  Section 3.06.

  	
  Securities Redeemed in Part

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR COVENANTS

  	
  16

  
	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Principal and Interest

  	
  16

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  16

  
	
  Section 4.03.

  	
  Corporate Existence

  	
  16

  
	
  Section 4.04.

  	
  Compliance Certificate

  	
  16

  
	
  Section 4.05.

  	
  Waiver of Stay, Extension or Usury Laws

  	
  17

  
	
  Section 4.06.

  	
  SEC Reports

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE SUCCESSOR CORPORATION

  	
  17

  
	
   

  	
   

  
	
  Section 5.01.

  	
  Merger, Consolidation, or Sale of Assets

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX DEFAULT AND REMEDIES

  	
  18

  
	
   

  	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
  18

  



 


i

















 


	
  Section 6.02.

  	
  Acceleration

  	
  19

  
	
  Section 6.03.

  	
  Other Remedies

  	
  20

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
  20

  
	
  Section 6.05.

  	
  Control by Majority

  	
  20

  
	
  Section 6.06.

  	
  Limitation on Suits

  	
  20

  
	
  Section 6.07.

  	
  Rights of Holders to Receive Payment

  	
  21

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
  21

  
	
  Section 6.09.

  	
  Trustee May File Proofs of Claim

  	
  21

  
	
  Section 6.10.

  	
  Priorities

  	
  21

  
	
  Section 6.11.

  	
  Undertaking for Costs

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN TRUSTEE

  	
  22

  
	
   

  	
   

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
  22

  
	
  Section 7.02.

  	
  Rights of Trustee

  	
  23

  
	
  Section 7.03.

  	
  Individual Rights of Trustee

  	
  24

  
	
  Section 7.04.

  	
  Trustee’s Disclaimer

  	
  24

  
	
  Section 7.05.

  	
  Notice of Default

  	
  24

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders

  	
  24

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
  24

  
	
  Section 7.08.

  	
  Replacement of Trustee

  	
  25

  
	
  Section 7.09.

  	
  Successor Trustee by Merger, Etc

  	
  26

  
	
  Section 7.10.

  	
  Eligibility; Disqualification

  	
  26

  
	
  Section 7.11.

  	
  Preferential Collection of Claims Against the Issuer

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE

  	
  26

  
	
   

  	
   

  
	
  Section 8.01.

  	
  Termination of the Issuer’s Obligations

  	
  26

  
	
  Section 8.02.

  	
  Legal Defeasance and Covenant Defeasance

  	
  27

  
	
  Section 8.03.

  	
  Conditions to Legal Defeasance or Covenant
  Defeasance

  	
  28

  
	
  Section 8.04.

  	
  Application of Trust Money

  	
  29

  
	
  Section 8.05.

  	
  Repayment to the Issuer

  	
  29

  
	
  Section 8.06.

  	
  Reinstatement

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS

  	
  30

  
	
   

  	
   

  
	
  Section 9.01.

  	
  Without Consent of Holders

  	
  30

  
	
  Section 9.02.

  	
  With Consent of Holders

  	
  31

  
	
  Section 9.03.

  	
  Compliance with the Trust Indenture Act

  	
  32

  
	
  Section 9.04.

  	
  Revocation and Effect of Consents

  	
  32

  
	
  Section 9.05.

  	
  Notation on or Exchange of Securities

  	
  32

  
	
  Section 9.06.

  	
  Trustee To Sign Amendments, Etc

  	
  32

  
	
  Section 9.07.

  	
  Trustee Protected

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN MISCELLANEOUS

  	
  33

  
	
   

  	
   

  
	
  Section 10.01.

  	
  Trust Indenture Act Controls

  	
  33

  
	
  Section 10.02.

  	
  Notices

  	
  33

  
	
  Section 10.03.

  	
  Communications by Holders with Other Holders

  	
  34

  
	
  Section 10.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  34

  
	
  Section 10.05.

  	
  Statements Required in Certificate or Opinion

  	
  34

  
	
  Section 10.06.

  	
  Rules by Trustee and Agents

  	
  35

  
	
  Section 10.07.

  	
  Legal Holidays

  	
  35

  
	
  Section 10.08.

  	
  Governing Laws

  	
  35

  
	
  Section 10.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  35

  
	
  Section 10.10.

  	
  No Recourse Against Others

  	
  35

  



 


ii

















 


	
  Section 10.11.

  	
  Successors

  	
  35

  
	
  Section 10.12.

  	
  Duplicate Originals

  	
  35

  
	
  Section 10.13.

  	
  Severability

  	
  36

  
	
  Section 10.14.

  	
  Securities in a Foreign Currency or in ECU

  	
  36

  
	
  Section 10.15.

  	
  Judgment Currency

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN SINKING FUNDS

  	
  37

  
	
   

  	
   

  
	
  Section 11.01.

  	
  Applicability of Article

  	
  37

  
	
  Section 11.02.

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
  37

  
	
  Section 11.03.

  	
  Redemption of Securities for Sinking Fund

  	
  37

  



 


iii

















 


CROSS-REFERENCE TABLE


 


	
  Trust
  Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
  § 310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  Not
  Applicable

  
	
  (a)(4)

  	
   

  	
  Not
  Applicable

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  Not
  Applicable

  
	
  § 311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  Not
  Applicable

  
	
  § 312(a)

  	
   

  	
  2.06

  
	
  (b)

  	
   

  	
  10.03

  
	
  (c)

  	
   

  	
  10.03

  
	
  § 313(a)

  	
   

  	
  7.06

  
	
  (b)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06

  
	
  (d)

  	
   

  	
  7.06

  
	
  § 314(a)

  	
   

  	
  4.04,
  4.06; 10.05

  
	
  (b)

  	
   

  	
  Not
  Applicable

  
	
  (c)(1)

  	
   

  	
  10.04

  
	
  (c)(2)

  	
   

  	
  10.04

  
	
  (c)(3)

  	
   

  	
  Not
  Applicable

  
	
  (d)

  	
   

  	
  Not
  Applicable

  
	
  (e)

  	
   

  	
  10.05

  
	
  (f)

  	
   

  	
  Not
  Applicable

  
	
  § 315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  §316(a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  Not
  Applicable

  
	
  (a)(last sentence)

  	
   

  	
  2.10

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  9.04

  
	
  §317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.05

  
	
  § 318(a)

  	
   

  	
  10.01

  



 


Note:     This
Cross-Reference Table shall not, for any purpose, be deemed to be a part of
this Indenture.


 


iv

















 


INDENTURE dated as of                      ,
20      between Satcon
Technology Corporation, a Delaware corporation, as Issuer (the “Issuer”), and                                        ,
as trustee (the “Trustee”).


 


THIS INDENTURE WITNESSETH


 


Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Securities issued under this Indenture:


 


ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.          Definitions.


 


Set forth below are certain defined terms used in
this Indenture.


 


“Additional Amounts”
means any additional amounts which are required hereby or by any Security,
under circumstances specified herein or therein, to be paid by the Issuer in
respect of certain taxes imposed on Holders specified herein or therein and
which are owing to such Holders.


 


“Affiliate” of
any Person means any other Person which directly or indirectly controls or is
controlled by, or is under direct or indirect common control with, the referent
Person. For purposes of this definition, “control” of a
Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and “controlling,” “controlled by,” and “under common control”
shall have correlative meanings.


 


“Agent” means
any Registrar, Paying Agent or Service Agent.


 


“amend” means to
amend, supplement, restate, amend and restate or otherwise modify; and “amendment” shall have a correlative meaning.


 


“asset” means
any asset or property.


 


“Attributable Indebtedness,”
when used with respect to any Sale and Leaseback Transaction, means, as at the
time of determination, the present value (discounted at a rate equivalent to
the Issuer’s then-current weighted average cost of funds for borrowed money as
at the time of determination, compounded on a semi-annual basis) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in any such Sale and Leaseback Transaction.


 


“Authorized Newspaper”
means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five (5) days in
each calendar week and of general circulation in the place in connection with
which the term is used. If it shall be impractical in the opinion of the
Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof that is made or
given by the Trustee shall constitute a sufficient publication of such notice.


 


“Bankruptcy Law”
means Title 11 of the United States Code, as amended, or any similar federal or
state law for the relief of debtors.


 


“Bearer Security”
means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.


 


“Board of Directors”
shall mean, with respect to any Person, (i) in the case of any
corporation, the board of directors of such Person, (ii) in the case of
any limited liability company, the board of managers of such Person, (iii) in
the case of any partnership, the Board of Directors of the general partner of
such Person, and (iv) in any other case, the functional equivalent of the
foregoing.


 

















 


“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Issuer to have been adopted by the Board of Directors of the
Issuer or pursuant to authorization by the Board of Directors of the Issuer and
to be in full force and effect on the date of the certificate and delivered to the
Trustee.


 


“Business Day”
means, unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate for a particular Series of
Securities, a day other than a Saturday, Sunday or other day on which banking
institutions in the City of New York, New York are authorized or required by
law to close.


 


“Capitalized Lease”
means a lease required to be capitalized for financial reporting purposes in
accordance with GAAP.


 


“Capitalized Lease
Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under a Capitalized Lease, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“Corporate Trust Office”
means the corporate trust office of the Trustee located at                                         , or
such other office, designated by the Trustee by written notice to the Issuer,
at which at any particular time its corporate trust business shall be
administered.


 


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


 


“Default” means (1) any
Event of Default or (2) any event, act or condition that, after notice or
the passage of time or both, would be an Event of Default.


 


“Depository”
means, with respect to the Securities of any Series issuable or issued in
whole or in part in the form of one or more Global Securities, the Person
designated as Depository for such Series by the Issuer, which Depository
shall be a clearing agency registered under the Exchange Act, and if at any
time there is more than one such Person, “Depository” as
used with respect to the Securities of any Series shall mean the
Depository with respect to the Securities of such Series.


 


“Discount Security”
means any Security that provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.02.


 


“Dollars” and “$” means the currency of The United States of America.


 


“ECU” means the
European Currency Unit as determined by the Commission of the European Union.


 


“Equity Interests”
of any Person means (1) any and all shares or other equity interests
(including common stock, preferred stock, limited liability company interests
and partnership interests) in such Person and (2) all rights to purchase,
warrants or options (whether or not currently exercisable), participations or
other equivalents of or interests in (however designated) such shares or other
interests in such Person.


 


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


 


“Fair Market Value”
means, with respect to any asset, the price (after taking into account any
liabilities relating to such assets) that would be negotiated in an arm’s-length
transaction for cash between a willing seller and a willing and able buyer,
neither of which is under any compulsion to complete the transaction, as such
price is determined in good faith by the Board of Directors of the Issuer or a
duly authorized committee thereof, as evidenced by a resolution of such Board
of Directors or committee.


 


“Foreign Currency”
means any currency or currency unit issued by a government other than the
government of The United States of America.


 


2

















 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, as in effect from time to time, unless otherwise provided for in
a particular Series of Securities by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate.


 


“Global Security”
or “Global Securities” means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.02
evidencing all or part of a Series of Securities, issued to the Depository
for such Series or its nominee, and registered in the name of such
Depository or nominee.


 


“guarantee”
means a direct or indirect guarantee by any Person of any Indebtedness of any
other Person and includes any obligation, direct or indirect, contingent or
otherwise, of such Person: (1) to purchase or pay (or advance or supply
funds for the purchase or payment of) Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services (unless such
purchase arrangements are on arm’s-length terms and are entered into in the
ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise); or (2) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), and “guarantee,” when used as a verb,
and “guaranteed” have correlative meanings.


 


“Hedging Obligations”
of any Person means the obligations of such Person pursuant to (1) any
interest rate swap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to alter the risks to that Person arising
from fluctuations in interest rates, (2) agreements or arrangements
designed to alter the risks to that Person arising from fluctuations in foreign
currency exchange rates in the conduct of its operations, or (3) any
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices, in each case entered into in the ordinary
course of business for bona fide hedging purposes and not for the purpose of
speculation.


 


“Holder” means a
Person in whose name a Security is registered or the holder of a Bearer
Security.


 


“incur” means,
with respect to any Indebtedness or Obligation, incur, create, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to such Indebtedness or Obligation.


 


“Indebtedness”
of any Person at any date means, without duplication:


 


(1)           all
liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof);


 


(2)           all
obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments;


 


(3)           all
reimbursement obligations of such Person in respect of letters of credit,
letters of guaranty, bankers’ acceptances and similar credit transactions;


 


(4)           all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except (i) trade payables and accrued expenses
incurred by such Person in the ordinary course of business in connection with
obtaining goods, materials or services and (ii) customary adjustments of
purchase price, contingent payments, earnout payments or similar obligations of
such Person arising under any of the documents pertaining to any acquisition of
any Person or assets or Equity Interests of any Person or any sale, transfer or
other disposition of assets to any Person;


 


(5)           all
Capitalized Lease Obligations of such Person;


 


3

















 


(6)           all
Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person;


 


(7)           all
Indebtedness of others guaranteed by such Person to the extent of such
guarantee; provided, however,
that Indebtedness of the Issuer or its Subsidiaries that is guaranteed by the
Issuer or the Issuer’s Subsidiaries shall only be counted once in the
calculation of the amount of Indebtedness of the Issuer and its Subsidiaries on
a consolidated basis;


 


(8)           all
Attributable Indebtedness;


 


(9)           to
the extent not otherwise included in this definition, Hedging Obligations of
such Person, determined as the net amount of all payments that would be
required to be made in respect thereof in the event of a termination (including
an early termination) on the date of determination; and


 


(10)         all
obligations of such Person under conditional sale or other title retention
agreements relating to assets purchased by such Person.


 


The amount of any Indebtedness which is incurred at
a discount to the principal amount at maturity thereof as of any date shall be
deemed to have been incurred at the accreted value thereof as of such date. The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above, the
maximum liability of such Person for any such contingent obligations at such
date and, in the case of clause (6), the lesser of (a) the Fair Market
Value of any asset subject to a Lien securing the Indebtedness of others on the
date that the Lien attaches and (b) the amount of the Indebtedness
secured.


 


“Indenture”
means this Indenture, as amended, supplemented or otherwise modified from time
to time in accordance with the terms hereof, and shall include the form and
terms of particular Series of Securities established as contemplated
hereunder.


 


“interest” with
respect to any Discount Security which by its terms bears interest only after a
Maturity Date, means interest payable after such Maturity Date.


 


“Issuer” means
the party named as such above until a successor replaces it and thereafter
means the successor.


 


“Issuer Order”
means a written order signed in the name of the Issuer by an Officer, who must
be the Issuer’s principal executive officer, principal financial officer or
principal accounting officer.


 


“Lien” means,
with respect to any asset, any mortgage, deed of trust, lien (statutory or
other), pledge, lease, easement, restriction, charge, security interest or
other encumbrance of any kind or nature 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, and any lease in the
nature thereof.


 


“Maturity Date,”
when used with respect to any Security or installment of principal thereof,
means the date on which the principal of such Security or such installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, notice
of option to elect repayment or otherwise.


 


“Obligation”
means any principal, interest, penalties, fees, indemnification, reimbursements,
costs, expenses, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Officer” means
any of the following of the Issuer: the Chairman of the Board of Directors, the
Chief Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary.


 


4














 


“Officers’ Certificate”
means a certificate signed by two Officers (on behalf of the Issuer in their
representative capacities, and not in their individual capacities).


 


“Opinion of Counsel”
means a written opinion from legal counsel who is reasonably acceptable to the
Trustee. The counsel may (but need not) be an employee of, or counsel to, the
Issuer or the Trustee.


 


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


 


“Plan of Liquidation,”
with respect to any Person, means a plan that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously, in phases or otherwise): (1) the sale,
lease, conveyance or other disposition of all or substantially all of the
assets of such Person otherwise than as an entirety or substantially as an
entirety; and (2) the distribution of all or substantially all of the
proceeds of such sale, lease, conveyance or other disposition of all or
substantially all of the remaining assets of such Person to holders of Equity
Interests of such Person.


 


“principal” of a
Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.


 


“redeem” means
to redeem, repurchase, purchase, defease, retire, discharge or otherwise
acquire or retire for value, and “redemption” has
a correlative meaning.


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer in the Corporate
Trust Office or equivalent office, group or department of the Trustee to whom
any corporate trust matter is referred because of such officer’s knowledge of
and familiarity with the particular subject and shall also mean any officer who
shall have direct responsibility for the administration of this Indenture.


 


“Sale and Leaseback
Transactions” means with respect to any Person an arrangement with
any bank, insurance company or other lender or investor or to which such lender
or investor is a party, providing for the leasing by such Person of any asset
of such Person which has been or is being sold or transferred by such Person to
such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such asset.


 


“SEC” means the
U.S. Securities and Exchange Commission.


 


“Securities”
means the debentures, notes or other debt instruments of the Issuer of any Series authenticated
and delivered under this Indenture.


 


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


 


“Series” or “Series of Securities” means each series of debentures,
notes or other debt instruments of the Issuer created pursuant to Sections 2.01
and 2.02 hereof.


 


“Stated Maturity”
means, with respect to any installment of interest or principal on any
Indebtedness, the date on which such payment of interest or principal is
scheduled to be paid in the documentation governing such Indebtedness, and
shall not include any contingent obligations to repay, redeem or repurchase any
such interest or principal prior to the date originally scheduled for the
payment thereof.


 


“Subsidiary”
means, with respect to any Person:


 


(1)           any
corporation, limited liability company, association or other business entity of
which more than 50% of the total voting power of the Equity Interests entitled
(without regard to the occurrence of any contingency) to vote in the election
of the Board of Directors thereof are at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and


 


5

















 


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


 


Unless otherwise specified, “Subsidiary”
refers to a Subsidiary of the Issuer.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended.


 


“Trustee” means
the Person named as the “Trustee” in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any Series shall mean the
Trustee with respect to Securities of that Series.


 


“U.S. Government
Obligations” means direct, non-callable 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.


 


Section 1.02.          Other Definitions.


 




	
  Term

  	
   

  	
  Defined in Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Journal”

  	
   

  	
  10.14

  	
   

  
	
  “Judgment Currency”

  	
   

  	
  10.15

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “mandatory sinking fund payment”

  	
   

  	
  11.01

  	
   

  
	
  “Market Exchange Rate”

  	
   

  	
  10.14

  	
   

  
	
  “New York Banking Day”

  	
   

  	
  10.15

  	
   

  
	
  “optional sinking fund payment”

  	
   

  	
  11.01

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.04

  	
   

  
	
  “Registrar”

  	
   

  	
  2.04

  	
   

  
	
  “Required Currency”

  	
   

  	
  10.15

  	
   

  
	
  “Service Agent”

  	
   

  	
  2.04

  	
   

  
	
  “Successor”

  	
   

  	
  5.01

  	
   

  






 


Section 1.03.          Incorporation by Reference of Trust
Indenture Act.


 


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


 


“indenture securities” means the Securities.


 


“indenture security holder” means a Holder.


 


“indenture to be qualified” means this Indenture.


 


“indenture trustee” or “institutional trustee” means
the Trustee.


 


“obligor” on the indenture securities means the
Issuer and any other obligor on the Securities.


 


All other Trust Indenture Act terms used in this
Indenture that are defined by the Trust Indenture Act, defined by Trust
Indenture Act reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.


 


6

















 


Section 1.04.                            Rules of
Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3)           references
to “generally accepted accounting principles” and “GAAP” shall mean generally
accepted accounting principles or GAAP in effect as of the time and for the
period as to which such accounting principles are to be applied;


 


(4)           “or”
is not exclusive;


 


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


 


(6)           all
references in this Indenture to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and provisions of this Indenture,
unless otherwise indicated;


 


(7)           provisions
apply to successive events and transactions;


 


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


 


(9)           the
words “including,” “includes” and similar words shall not be limiting and shall
be deemed to be followed by “without limitation.”


 


ARTICLE TWO




THE SECURITIES


 


Section 2.01.                            Issuable in
Series.


 


The aggregate principal amount of Securities that
may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more Series. All Securities of a Series shall
be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution. In the case
of Securities of a Series to be issued from time to time, the Board
Resolution, supplemental indenture or Officers’ Certificate detailing the adoption
of the terms thereof pursuant to authority granted under a Board Resolution may
provide for the method by which specified terms (such as interest rate,
maturity date, record date or date from which interest shall accrue) are to be
determined. Securities may differ between Series in respect of any
matters, provided that all Series of Securities shall be equally and
ratably entitled to the benefits of this Indenture.


 


Section 2.02.                            Establishment
of Terms of Series of Securities.


 


At or prior to the issuance of any Securities within
a Series, the following shall be established (as to the Series generally,
in the case of Section 2.02(a), and either as to such Securities within
the Series or as to the Series generally in the case of Sections 2.02(a) through
2.02(y)) by or pursuant to a Board Resolution, and set forth or determined in
the manner provided in a Board Resolution, a supplemental indenture hereto or
an Officers’ Certificate pursuant to authority granted under a Board
Resolution:


 


(a)           the title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other
Series);


 


7

















 


(b)           the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities of the Series will be
issued;


 


(c)           any limit upon the aggregate principal amount of the
Securities of the Series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant
to Section 2.07, 2.08, 2.11, 3.06 or 9.05);


 


(d)           the date or dates on which the principal of the Securities
of the Series is payable;


 


(e)           the rate or rates (which may be fixed or variable) per
annum or, if applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index, stock exchange
index or financial index) at which the Securities of the Series shall bear
interest, if any, the date or dates from which such interest, if any, shall
accrue, the date or dates on which such interest, if any, shall commence and be
payable and any regular record date for the interest payable on any interest
payment date;


 


(f)            the place or places where the principal of and interest,
if any, on the Securities of the Series shall be payable, where the
Securities of such Series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Issuer in respect of
the Securities of such Series and this Indenture may be served, and the
method of such payment, if by wire transfer, mail or other means;


 


(g)           if applicable, the period or periods within which, the
price or prices at which and the other detailed terms and conditions upon which
the Securities of the Series may be redeemed, in whole or in part, at the
option of the Issuer;


 


(h)           the obligations, if any, of the Issuer to redeem or
purchase the Securities of the Series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the date or dates
on which or period or periods within which, the price or prices at which and
the other detailed terms and provisions upon which Securities of the Series shall
be redeemed or purchased, in whole or in part, pursuant to such obligations;


 


(i)            if other than denominations of $1,000 and integral
multiples thereof, the denominations in which the Securities of the Series shall
be issuable;


 


(j)            the forms of the Securities of the Series in bearer
or fully registered form (and, if in fully registered form, whether the
Securities will be issuable as Global Securities);


 


(k)           if other than the principal amount thereof, the portion of
the principal amount of the Securities of the Series that shall be payable
upon acceleration or declaration of acceleration of the maturity thereof
pursuant to Section 6.02;


 


(l)            the currency of denomination of the Securities of the
Series, which may be in Dollars or any Foreign Currency;


 


(m)          the designation of the currency, currencies or currency
units in which payment of the principal of and interest, if any, on the
Securities of the Series will be made;


 


(n)           if payments of principal of or interest, if any, on the
Securities of the Series are to be made in one or more currencies or
currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such
payments will be determined;


 


(o)           the terms, if any, of subordination of the Securities of
the Series;


 


(p)           the terms, if any, of any guarantee of the Securities of
the Series by any of the Issuer’s Subsidiaries, whether any such guarantee
shall be made on a senior or subordinated basis and, if applicable, the terms
of subordination of any such guarantee;


 


8

















 


(q)           any provisions relating to any security provided for the
Securities of the Series or any guarantees by any of the Issuer’s
Subsidiaries (including any security to be provided by any such Subsidiary
guarantor);


 


(r)            any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 6.02;


 


(s)           any addition to or change in the covenants set forth in
Articles Four or Five which applies to Securities of the Series;


 


(t)            the provisions, if any, relating to conversion of any
Securities of such Series into Equity Interests, including if applicable,
the conversion price, the conversion period, provisions as to whether
conversion will be mandatory, at the option of the Holders thereof or at the
option of the Issuer, the events requiring an adjustment of the conversion
price and provisions affecting conversion if such Series of Securities are
redeemed;


 


(u)           any exchange features of the Securities of such Series;


 


(v)           any addition to or change in the provisions relating to
satisfaction and discharge of Obligations under this Indenture with respect to
the Securities of such Series, or in the provisions relating to legal
defeasance or covenant defeasance under this Indenture with respect to the
Securities of such Series;


 


(w)          any addition to or change in the provisions relating to
modification of this Indenture both with and without the consent of Holders of
the Securities of such Series;


 


(x)            any other terms or provisions of the Securities of the Series (which
may amend, supplement, modify or delete any provision of this Indenture insofar
as it applies to such Series); and


 


(y)           any registrars, paying agents, service agents,
depositories, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other
than those appointed herein.


 


All Securities of any one Series need not be
issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture or Officers’ Certificate referred to above,
and the authorized principal amount of any Series may not be increased to
provide for issuances of additional Securities of such Series, unless otherwise
provided in such Board Resolution, supplemental indenture or Officers’
Certificate.


 


Section 2.03.          Execution and Authentication.


 


One Officer of the Issuer (who shall have been duly
authorized by all requisite corporate actions) shall sign the Securities for
the Issuer by manual or facsimile signature.


 


If an Officer whose signature is on a Security was
an Officer at the time of such execution but no longer holds that office at the
time the Security is authenticated, the Security shall nevertheless be valid.


 


A Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent. The signature
shall be conclusive evidence that the Security has been authenticated under
this Indenture.


 


The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in the principal amount
provided in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, upon receipt by the Trustee of an Issuer Order. Such Issuer Order
may authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing. Each Security shall be
dated the date of its authentication unless otherwise provided by a Board Resolution,
a supplemental indenture hereto or an Officers’ Certificate.


 


9

















 


The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture or
Officers’ Certificate delivered pursuant to Section 2.02, except as
provided in Section 2.08.


 


Prior to the issuance of Securities of any Series,
the Trustee shall have received and (subject to Section 7.02) shall be
fully protected in relying on: (i) the Board Resolution, supplemental
indenture or Officers’ Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the
Securities of that Series or of Securities within that Series, (ii) an
Officers’ Certificate complying with Section 10.05, and (iii) an
Opinion of Counsel complying with Section 10.05.


 


The Trustee may appoint an authenticating agent
reasonably acceptable to the Issuer to authenticate Securities. Unless
otherwise provided in the appointment, an authenticating agent may authenticate
Securities 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 the Issuer
and Affiliates of the Issuer. The Trustee shall have the right to decline to
authenticate and deliver any Securities of such Series if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
or if the Trustee in good faith by shall determine that such action would
expose the Trustee to personal liability.


 


Section 2.04.          Registrar and Paying Agent.


 


The Issuer shall maintain, with respect to each Series of
Securities, at the place or places specified with respect to such Series pursuant
to Section 2.02, an office or agency where (a) Securities of such Series may
be surrendered for registration of transfer or exchange (“Registrar”),
(b) Securities of such Series may be presented or surrendered for
payment (“Paying Agent”) and (c) notices and
demands to or upon the Issuer in respect of the Securities of such Series and
this Indenture may be served (“Service Agent”).
The Issuer may act as Registrar or Paying Agent. The Registrar shall keep a
register with respect to each Series of Securities and to their transfer
and exchange. The term “Registrar”
includes any co-registrar; the term “Paying Agent”
includes any additional paying agent; and the term “Service
Agent” includes any additional service agent. The Issuer hereby
appoints the Trustee the initial Registrar, Paying Agent and Service Agent for
each Series unless another Registrar, Paying Agent or Service Agent, as
the case may be, is appointed prior to the time Securities of that Series are
first issued. The Issuer will give prompt written notice to the Trustee of the
name and address, and any change in the name or address, of each Registrar,
Paying Agent or Service Agent. If at any time the Issuer shall fail to maintain
any such required Registrar, Paying Agent or Service Agent or shall fail to
furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.


 


The Issuer shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Issuer shall notify the Trustee, in advance, of the name and address of any
such Agent. If the Issuer fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.


 


The Issuer may also from time to time designate one
or more co-registrars, additional paying agents or additional service agents
and may from time to time rescind such designations; provided,
however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligations to
maintain a Registrar, Paying Agent and Service Agent in each place so specified
pursuant to Section 2.02 for Securities of any Series for such
purposes. The Issuer will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the name or address of any such
co-registrar, additional paying agent or additional service agent.


 


Section 2.05.          Paying Agent to Hold Assets in
Trust.


 


The Issuer shall require each Paying Agent other
than the Trustee or the Issuer or any Subsidiary to agree in writing that each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, or interest
on, the Securities (whether such assets have been distributed to it by the
Issuer or any other obligor on the Securities), and shall notify the Trustee of
any Default by the Issuer (or any other obligor on the Securities) in making
any such payment. The Issuer at any time may require a 


 


10

















 


Paying Agent to distribute
all assets held by it to the Trustee and account for any assets disbursed, and
the Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered
by the Issuer to the Paying Agent, the Paying Agent shall have no further
liability for such assets. If the Issuer or a Subsidiary of the Issuer acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders of any Series of Securities all money held by it as
Paying Agent.


 


Section 2.06.          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 the Holders of each Series of Securities and shall otherwise
comply with Trust Indenture Act § 312(a). If the Trustee is not the Registrar,
the Issuer shall furnish to the Trustee at least ten (10) days before each
interest payment date with respect to any Series of Securities and at such
other times as the Trustee may request in writing a list, in such form and as
of such date as the Trustee may reasonably require, of the names and addresses
of the Holders of such Series of Securities, which list may be conclusively
relied upon by the Trustee.


 


Section 2.07.          Transfer and Exchange.


 


Subject to Section 2.14, where Securities of a Series are
presented to the Registrar with a request to register a transfer or to exchange
them for an equal principal amount of Securities of the same Series, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Registrar, duly executed by
the Holder thereof or his or her attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Securities at the Registrar’s request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Issuer may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06 or
9.05).


 


Without the prior written consent of the Issuer, the
Registrar shall not be required to register the transfer of or exchange
Securities of any Series (i) during the period beginning at the
opening of business fifteen (15) days before the mailing of a notice of
redemption of Securities of that Series selected for redemption and ending
at the close of business on the day of such mailing, or (ii) selected,
called or being called for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of such Securities, if any.


 


Section 2.08.          Replacement Securities.


 


If a mutilated Security is surrendered to the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate
and deliver a replacement Security of the same Series if the requirements
of Section 8-405 of the Uniform Commercial Code are met and the Holder
satisfies any other reasonable requirements of the Trustee. If required by the
Trustee or the Issuer, such Holder shall furnish an indemnity bond sufficient
in the judgment of the Issuer and the Trustee to protect the Issuer, the
Trustee or any Agent from any loss which any of them may suffer if a Security
is replaced. The Issuer and the Trustee may each charge such Holder for its
reasonable out-of-pocket expenses in replacing a Security pursuant to this Section 2.08,
including reasonable fees and expenses of counsel and of the Trustee.


 


Every replacement Security of any Series issued
pursuant to this Section in lieu of any lost, destroyed or wrongfully
taken Security shall constitute an original additional contractual obligation
of the Issuer, whether or not the lost, destroyed or wrongfully taken Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that Series duly issued hereunder.


 


11

















 


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


 


The provisions of this Section 2.08 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of lost, destroyed or
wrongfully taken Securities.


 


Section 2.09.          Outstanding Securities.


 


Subject to Section 2.10, the Securities
outstanding at any time are all the Securities authenticated by the Trustee
except those cancelled by it, those delivered to it for cancellation, those
reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as
not outstanding. Subject to Section 2.10, a Security does not cease to be
outstanding because the Issuer or any of its Affiliates holds the Security.


 


If a Security is replaced pursuant to Section 2.08
(other than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless a Responsible Officer of the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.


 


If the Paying Agent (other than the Issuer, a
Subsidiary of the Issuer or an Affiliate of the Issuer) holds on the Maturity
Date of Securities of a Series money sufficient to pay such Securities
payable on that date, then on and after that date such Securities of the Series cease
to be outstanding and interest on them ceases to accrue.


 


In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity Date thereof pursuant to Section 6.02.


 


If the principal amount of any Security is
considered paid under Section 4.01, it ceases to be outstanding and
interest ceases to accrue. If on any redemption date or the Maturity Date the
Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds
cash in Dollars or U.S. Government Obligations, or a combination thereof, in
amounts sufficient to pay all of the principal and interest due on the
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.


 


Section 2.10.          Treasury Securities.


 


In determining whether the Holders of the required
principal amount of Securities of a Series have concurred in any request,
demand, authorization, direction, notice, consent or waiver Securities of a Series owned
by the Issuer or an Affiliate of the Issuer shall be disregarded, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such request, demand, authorization, direction, notice, consent
or waiver only Securities of a Series that the Trustee knows are so owned
shall be so disregarded.


 


Section 2.11.          Temporary Securities.


 


Until definitive Securities of a Series are
ready for delivery, the Issuer may prepare and the Trustee shall authenticate
temporary Securities upon an Issuer Order. Temporary Securities shall be
substantially in the form of definitive Securities of the same Series but
may have variations that the Issuer considers appropriate for temporary
Securities. Without unreasonable delay, the Issuer shall prepare and the
Trustee shall authenticate definitive Securities of the same Series and
Maturity Date in exchange for temporary Securities. Until such exchange,
temporary Securities shall be entitled to the same rights, benefits and privileges
as definitive Securities of the same Series.


 


12














 


Section 2.12.                            Cancellation.


 


The Issuer at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the Registrar or the
Paying Agent (other than the Issuer or a Subsidiary), and no one else, shall
cancel and, at the written direction of the Issuer, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation in
accordance with its customary procedures. Certification of the destruction of
all cancelled Securities shall be delivered to the Issuer upon request by the
Issuer. Subject to Section 2.08, the Issuer may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation. If the Issuer or any of its Subsidiaries shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the same
are surrendered to the Trustee for cancellation pursuant to this Section 2.12.


 


Section 2.13.                            Defaulted
Interest.


 


If the Issuer defaults in a payment of interest on
the Securities of any Series, it shall pay the defaulted interest, plus (to the
extent lawful) any interest payable on the defaulted interest, in any lawful
manner. The Issuer may pay the defaulted interest to the Persons who are the
Holders of the Securities of such Series on a subsequent special record
date, which date shall be the fifteenth (15th) day next preceding the date
fixed by the Issuer for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least fifteen
(15) days before any such subsequent special record date, the Issuer (or, upon
the written request of the Issuer, the Trustee in the name and at the expense
of the Issuer) shall mail to each Holder, with a copy to the Trustee, a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest, and interest payable on such defaulted interest, if any,
to be paid.


 


Section 2.14.                            Global
Securities.


 


(a)                                  Terms of
Securities. A Board Resolution, a supplemental indenture hereto or an Officers’
Certificate shall establish whether the Securities of a Series shall be
issued in whole or in part in the form of one or more Global Securities and the
Depository for such Global Security or Securities.


 


(b)                                 Transfer and
Exchange. Notwithstanding any provisions to the contrary contained in Section 2.07
of this Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.07 of this Indenture for Securities
registered in the names of Holders other than the Depository for such Security
or its nominee only if (i) such Depository notifies the Issuer that it is
unwilling or unable to continue as Depository for such Global Security or if at
any time such Depository ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Issuer fails to appoint a successor
Depository registered as a clearing agency under the Exchange Act within ninety
(90) days of such event, (ii) the Issuer executes and delivers to the
Trustee an Officers’ Certificate to the effect that such Global Security shall
be so exchangeable or (iii) an Event of Default with respect to the
Securities represented by such Global Security shall have happened and be
continuing. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the
Depository shall direct in writing in an aggregate amount equal to the
principal amount of the Global Security with like tenor and terms. Except as
provided in this Section 2.14(b), a Global Security may not be transferred
except as a whole by the Depository with respect to such Global Security to a
nominee of such Depository, by a nominee of such Depository to such Depository
or another nominee of such Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such a successor Depository.


 


(c)                                  Legend. Any
Global Security issued hereunder shall bear a legend in substantially the
following form:


 


“This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is exchangeable for
Securities registered in the name of a Person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository.”


 


13

















 


(d)                                 Acts of
Holders. The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder is entitled
to give or take under this Indenture.


 


(e)                                  Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified
as contemplated by Section 2.02, payment of the principal of and interest,
if any, on any Global Security shall be made to the Holder thereof.


 


(f)                                    Consents,
Declaration and Directions. Except as provided in Section 2.09 (last
sentence), the Issuer, the Trustee and any Agent shall treat a Person as the
Holder of such principal amount of outstanding Securities of such Series represented
by a Global Security as shall be specified in a written statement of the
Depository with respect to such Global Security, for purposes of obtaining any
consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.


 


Section 2.15.                             CUSIP and ISIN
Numbers.


 


The Issuer in issuing the Securities may use “CUSIP”
or “ISIN” numbers, and if so, the Trustee shall use the “CUSIP” or “ISIN”
numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that
any such notice may state that no representation is made as to the correctness
or accuracy of the “CUSIP” or “ISIN” numbers printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Issuer will promptly notify the Trustee
of any change in the “CUSIP” or “ISIN” numbers.


 


ARTICLE THREE




REDEMPTION


 


Section 3.01.                             Notices to
Trustee.


 


The Issuer may, with respect to any Series of
Securities, reserve the right to redeem and pay the Series of Securities
or may covenant to redeem and pay the Series of Securities or any part thereof
prior to the Stated Maturity thereof at such time and on such terms as provided
for in such Securities. If a Series of Securities is redeemable and the
Issuer wants or is obligated to redeem prior to the Stated Maturity thereof all
or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the
principal amount of Series of Securities to be redeemed. The Issuer shall
give the notice of redemption to the Trustee at least forty-five (45) days
before the redemption date (unless a shorter notice shall be agreed to by the
Trustee in writing), together with such documentation and records as shall
enable the Trustee to select the Securities to be redeemed.


 


Section 3.02.                             Selection of Securities
to be Redeemed.


 


Unless otherwise indicated for a particular Series by
a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be
redeemed as follows:


 


(1)                                  if such Securities are
listed on a national securities exchange, in compliance with the requirements
of the principal national securities exchange on which such Securities are
listed; or


 


(2)                                  if such Securities are not
so listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate.


 


In the event of partial redemption, the Trustee
shall make the selection from Securities of the Series outstanding not
previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of the Series that have
denominations larger than $1,000. Securities of the Series and portions of
them it selects shall be in amounts of $1,000 or integral multiples of $1,000
or, with respect to Securities of any Series issuable in other
denominations pursuant to Subsection 2.02(i), the minimum principal
denomination for each Series 


 


14

















 


and integral multiples
thereof. Provisions of this Indenture that apply to Securities of a Series called
for redemption also apply to portions of Securities of that Series called
for redemption.


 


Section 3.03.                            Notice of
Redemption.


 


Unless otherwise indicated for a particular Series by
a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, at least thirty (30) days but not more than sixty (60) days before
a redemption date, the Issuer shall mail, or cause to be mailed, a notice of
redemption by first-class mail, postage prepaid, to each Holder whose
Securities are to be redeemed and if any Bearer Securities are outstanding,
publish on one occasion a notice in an Authorized Newspaper (except that a
redemption referred to in Article Eight may be more than sixty (60) days
before the applicable redemption date). At the Issuer’s request, the Trustee
shall forward the notice of redemption in the Issuer’s name and at the Issuer’s
expense. Each notice for redemption shall identify the Securities of the Series to
be redeemed (including the CUSIP or ISIN number, if any) and shall state:


 


(1)                                  the date fixed for the
redemption of such Securities;


 


(2)                                  the price fixed for the
redemption of such securities;


 


(3)                                  the name and address of the
Paying Agent;


 


(4)                                  that Securities of the Series called
for redemption must be surrendered to the Paying Agent to collect the
redemption price therefor;


 


(5)                                  that interest on Securities
of the Series called for redemption shall cease to accrue on and after the
redemption date thereof, and the only remaining right of the Holders of such
Securities shall be to receive payment of the redemption price therefor upon
surrender to the Trustee or Paying Agent of the Securities to be redeemed; and


 


(6)                                  any other information as may
be required by the terms of the particular Series or the Securities of a Series being
redeemed.


 


At the Issuer’s request, the Trustee shall give the
notice of redemption in the Issuer’s name and at its expense.


 


Section 3.04.                            Effect of
Notice of Redemption.


 


Once notice of redemption is mailed or published as
provided in accordance with Section 3.03, Securities of a Series called
for redemption shall become due and payable on the redemption date and at the
redemption price therefor. A notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price plus accrued interest to the redemption date; provided
that installments of interest whose Stated Maturity is on or prior to the
redemption date shall be payable to the Holders of such Securities (or one or
more predecessor Securities) registered at the close of business on the
relevant record date therefor according to their terms and the terms of this
Indenture.


 


Section 3.05.                            Deposit of
Redemption Price.


 


On or before 10:00 a.m. New York time on the
redemption date, the Issuer shall deposit with the Paying Agent funds
sufficient to pay the redemption price of and accrued and unpaid interest, if
any, on all Securities to be redeemed on that date.


 


Section 3.06.                            Securities
Redeemed in Part.


 


Upon surrender of a Security that is to be redeemed
in part, the notice of redemption that relates to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security or
Securities of the same Series and the same Maturity Date equal in
principal amount to the unredeemed portion of the original 


 


15

















 


Security shall be issued in
the name of the Holder thereof upon surrender and cancellation of the original
Security surrendered.


 


ARTICLE FOUR




COVENANTS


 


Section 4.01.                             Payment of
Principal and Interest.


 


The Issuer shall pay or cause to be paid the
principal of and interest on the Securities of each Series in the manner
provided in such Securities and this Indenture. An installment of principal of,
or interest on, Securities shall be considered paid on the date it is due if
the Trustee or the Paying Agent (other than the Issuer or an Affiliate thereof)
holds on that date funds designated for and sufficient to pay the installment.
The Paying Agent shall return to the Issuer promptly, and in any event, no
later than five (5) Business Days following the date of payment, any money
(including accrued interest) that exceeds such amount of principal and interest
paid on the Securities. If a payment date is not a Business Day, at a place of
payment, payment may be made at that place on the next succeeding day that is a
Business Day, and no interest shall accrue on such payment for the intervening
period.


 


Section 4.02.                             Maintenance of
Office or Agency.


 


The Issuer covenants and agrees for the benefit of
the Holders of each Series of Securities that it will maintain in the
Borough of Manhattan, The City of New York, New York the office or agency
(which may be an office or drop facility of the Trustee, the Registrar or the
Service Agent, as applicable, for such Securities or an Affiliate of such
Trustee, the Registrar or the Service Agent, as applicable, for such
Securities) where such Securities may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Issuer in
respect of such Securities and this Indenture may be served. The Issuer will
give prompt written notice to the Trustee for such Securities of the location,
and any change in the location, of such office or agency. If at any time the
Issuer shall fail to maintain any such required office or agency or shall fail
to furnish such Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of such Trustee.


 


The Issuer may also from time to time designate one
or more other offices or agencies where Holders of a Series of Securities
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations. The Issuer will give prompt written notice
to the Trustee for such Series of Securities of any such designation or
rescission and of any change in the location of any such other office or agency.


 


With respect to each Series of Securities, the
Issuer hereby designates the Corporate Trust Office of the Trustee for such
Securities as one such office or agency of the Issuer in accordance with Section 2.05
hereof.


 


Section 4.03.                             Corporate
Existence.


 


Except as otherwise permitted by Article Five
and the other provisions of this Indenture, the Issuer shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and its material rights (charter and statutory) and
material franchises; provided, however, that the Issuer shall not be required to preserve
any such right or franchise if the Board of Directors of the Issuer shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Issuer and its Subsidiaries, taken as a whole, or if the
failure so to preserve would not reasonably be expected to have a material
adverse effect on the Issuer and its Subsidiaries, taken as a whole.


 


Section 4.04.                             Compliance
Certificate.


 


The Issuer and each guarantor of any Series of
Securities (to the extent that such guarantor is so required under the Trust
Indenture Act) shall deliver to the Trustee with respect to such Series, within
one hundred twenty (120) days after the end of each fiscal year of the Issuer,
an Officers’ Certificate stating that, in the course of the performance by the
signers of their duties as Officers of the Issuer, they would normally have
knowledge of any 


 


16

















 


Default and whether or not
the signers know of any Default that occurred during such fiscal year. If they
do know of such a Default, the certificate shall describe the Default, its
status and what action, if any, the Issuer is taking or proposes to take with
respect thereto. The Issuer also shall comply with Trust Indenture Act §
314(a)(4).


 


Section 4.05.                            Waiver of Stay,
Extension or Usury Laws.


 


The Issuer and each guarantor, if any, of any Series of
Securities covenants (to the extent permitted by applicable law) that it will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive such Issuer or such guarantor from
paying all or any portion of the principal of and/or interest on such
Securities or the guarantee, if any, of any such guarantor as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture, and (to the extent
permitted by applicable law) each hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


Section 4.06.                            SEC Reports.


 


(a)                                  Whether or not
required by the SEC’s rules and regulations, so long as any Securities of
any Series are outstanding, the Issuer will furnish to the Holders of such
Securities, cause the Trustee with respect to such Securities to furnish to the
Holders of such Securities, or file electronically with the SEC through the SEC’s
Electronic Data Gathering, Analysis and Retrieval System (or any successor
system), within the time periods (including any extensions thereof) specified
in the SEC’s rules and regulations:


 


(1)                                  all quarterly and annual
financial information that would be required to be contained in a filing with the
SEC on Forms 10-Q and 10-K (or any successor forms) if the Issuer were required
to file these Forms, including a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and, with respect to the annual
information only, a report on the annual financial statements by the Issuer’s
independent accountants; and


 


(2)                                  all current reports that
would be required to be filed with the SEC on Form 8-K (or any successor
form) if the Issuer were required to file these reports.


 


(b)                                 In addition,
whether or not required by the SEC’s rules and regulations, the Issuer
will file a copy of all of the information and reports referred to in clauses
(a)(1) and (a)(2) above with the SEC for public availability within
the time periods applicable to the Issuer under Section 13(a) or 15(d) of
the Exchange Act (unless the SEC will not accept the filing, in which case the
Issuer shall make the information available to securities analysts and
prospective investors upon request). The Issuer also shall comply with the
other provisions of Trust Indenture Act § 314(a).


 


ARTICLE FIVE




SUCCESSOR CORPORATION


 


Section 5.01.                            Merger,
Consolidation, or Sale of Assets.


 


(a)                                  The Issuer will
not, directly or indirectly, in a single transaction or a series of related transactions,
(1) consolidate or merge with or into any other Person (other than a
merger with an Affiliate of the Issuer solely for the purpose of changing the
Issuer’s jurisdiction of incorporation to another State of the United States or
forming a direct holding company of the Issuer), or sell, lease, transfer,
convey or otherwise dispose of or assign all or substantially all of the assets
of the Issuer or the Issuer and its Subsidiaries (taken as a whole) to any
other Person or (2) effect a Plan of Liquidation, unless, in either case:


 


(1)                                  either:


 


17

















 


(i)                                     the Issuer will be the
surviving or continuing corporation; or


 


(ii)                                  the Person formed by or
surviving such consolidation or merger (if not the Issuer) or to which such
sale, lease, conveyance or other disposition shall be made (or, in the case of
a Plan of Liquidation, any Person to which assets are transferred)
(collectively, the “Successor”) is a corporation organized and existing under
the laws of any State of the United States of America or the District of
Columbia, and the Successor expressly assumes, by a supplemental indenture
hereto in form and substance satisfactory to the Trustee, all of the
Obligations of the Issuer under the Securities and this Indenture; and


 


(2)                                  immediately after giving
effect to such transaction and the assumption of the obligations as set forth
in clause (a)(1) above, if applicable, and the incurrence of any
Indebtedness to be incurred in connection therewith, no Default shall have
occurred and be continuing.


 


(b)                                 For purposes of
the foregoing, the sale, lease, transfer, conveyance or other disposition or
assignment of all or substantially all of the assets of one or more of the
Issuer’s Subsidiaries, the Equity Interests of which constitute all or
substantially all of the assets of the Issuer, will be deemed to be the
transfer of all or substantially all of the assets of the Issuer.


 


(c)                                  Upon any
consolidation, combination or merger of the Issuer, or any sale, lease,
transfer, conveyance or other disposition or assignment of all or substantially
all of the assets of the Issuer in accordance with the foregoing, in which the
Issuer is not the continuing obligor under the Securities and this Indenture,
the surviving entity formed by such consolidation or into which the Issuer is
merged or the entity to which the sale, lease, transfer, conveyance, or other
disposition or assignment is made will succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under the Securities and this
Indenture with the same effect as if such surviving entity had been named
therein as the Issuer, and, except in the case of such a lease, the Issuer will
be released from its Obligations under the Securities and this Indenture.


 


(d)                                 This Section 5.01
shall not apply to (i) any sale, lease, transfer, conveyance or other
disposition or assignment of assets between or among (A) the Issuer and
any of its Subsidiaries or (B) two or more Subsidiaries of the Issuer, or (ii) any
merger or consolidation between the Issuer and any of its Subsidiaries or
between any two Subsidiaries of the Issuer.


 


ARTICLE SIX




DEFAULT AND REMEDIES


 


Section 6.01.                            Events of
Default.


 


“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of
the following events, unless in the establishing Board Resolution, supplemental
indenture or Officers’ Certificate, it is provided that such Series shall
not have the benefit of said Event of Default:


 


(1)                                  failure by the Issuer to pay
interest on any of Security of that Series when it becomes due and payable
and the continuance of any such failure for thirty (30) consecutive days;


 


(2)                                  failure by the Issuer to pay
the principal on any Security of that Series when it becomes due and
payable, whether at Stated Maturity, upon redemption, upon purchase, upon
acceleration or otherwise;


 


(3)                                  failure to deposit any
sinking fund payment, when and as due in respect of any Security of that
Series;


 


(4)                                  failure by the Issuer to
comply with any other agreement or covenant in this Indenture and the
continuance of any such failure for sixty (60) consecutive days after notice of
such failure has been 


 


18

















 


given to the Issuer by the Trustee or by the Holders of at least
twenty-five percent (25%) of the aggregate principal amount of the Securities
of that Series then outstanding;


 


(5)                                  the Issuer pursuant to or
within the meaning of any Bankruptcy Law:


 


(i)                                     commences a voluntary case,


 


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


 


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


 


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


 


(6)                                  a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(i)                                     is for relief against the
Issuer as debtor in an involuntary case,


 


(ii)                                  appoints a Custodian of the
Issuer or for all or substantially all of its assets, or


 


(iii)                               orders the liquidation of
the Issuer, and the order or decree remains unstayed and in effect for ninety
(90) days; or


 


(7)                                  any other Event of Default
provided with respect to Securities of that Series, which is specified in a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate,
in accordance with Section 2.02(r).


 


Section 6.02.                            Acceleration.


 


If an Event of Default specified in Section 6.01(5) or
Section 6.01(6) with respect to the Issuer occurs, all outstanding
Securities shall become immediately due and payable without any further action
or notice. If an Event of Default (other than an Event of Default specified in Section 6.01(5) or
Section 6.01(6) with respect to the Issuer) shall have occurred and
be continuing under this Indenture and the Securities of any Series, the
Trustee, by notice to the Issuer, or the Holders of at least twenty-five
percent (25%) in aggregate principal amount of the Securities of such Series then
outstanding by notice to the Issuer and the Trustee, may declare all amounts
owing under such Securities of such Series to be due and payable
immediately. Upon such acceleration or declaration of acceleration, the
aggregate principal (or, if any Securities of that Series are Discount
Securities, such portion of the principal as may be specified in the terms of
such Securities) of and accrued and unpaid interest on the outstanding
Securities of such Series shall immediately become due and payable; provided, however, that
after such acceleration or declaration of acceleration, but before a judgment
or decree based on acceleration or declaration of acceleration, the Holders of
a majority in aggregate principal amount of such outstanding Securities of such
Series may rescind and annul such acceleration or declaration of acceleration:


 


(1)                                  if the rescission would not
conflict with any judgment or decree;


 


(2)                                  if all existing Defaults
have been cured or waived (except nonpayment of principal and interest that has
become due solely because of this acceleration);


 


(3)                                  to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
overdue principal, which has become due (otherwise than by such declaration of
acceleration), has been paid;


 


(4)                                  if the Issuer has paid to
the Trustee its reasonable compensation and reimbursed the Trustee of its
expenses, disbursements and advances; and


 


19

















 


(5)                                  in the event of a cure or
waiver of a Default of the type set forth in Section 6.01(5) or Section 6.01(6),
the Trustee shall have received an Officers’ Certificate and an Opinion of
Counsel that such Default has been cured or waived.


 


No such rescission shall affect any subsequent
Default or impair any right consequent thereto.


 


Section 6.03.                            Other Remedies.


 


If a Default with respect to Securities of any Series at
the time outstanding occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, or interest on, such Securities or to enforce the performance of
any provision of such Securities or this Indenture.


 


The Trustee for such Securities may maintain a
proceeding even if it does not possess any of such Securities or does not
produce any of them in the proceeding. A delay or omission by the Trustee or
any Holder of Securities in exercising any right or remedy accruing upon a
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Default. No remedy is exclusive of any other remedy. All
remedies are cumulative to the extent permitted by law.


 


Section 6.04.                            Waiver of Past
Defaults.


 


Holders of at least a majority in aggregate
principal amount of the then outstanding Securities of any Series (which
may include consents obtained in connection with a tender offer or exchange
offer of such Securities), by notice to the Trustee for such Securities, may,
on behalf of all of the Holders of such Securities, waive an existing Default
with respect to such Securities and its consequences, except a Default in the
payment of principal or interest on such Securities; provided,
however, that the Holders of a majority
in aggregate principal amount of the then outstanding Securities of any Series may,
on behalf of all of the Holders of such Securities, rescind an acceleration of
such Securities and its consequences, including any related payment Default
that resulted from such acceleration. When a Default is waived, it is cured and
ceases.


 


Section 6.05.                            Control by
Majority.


 


(a)                                  The Holders of
at least a majority in aggregate principal amount of the outstanding Securities
of any Series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee of such Series or
exercising any trust or power conferred on it with respect to such Series.
Subject to Section 7.01, however, the Trustee may refuse to follow any
direction that conflicts with any law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Holder, or that
may involve the Trustee in personal liability; provided,
however, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.


 


(b)                                 In the event
the Trustee takes any action or follows any direction pursuant to this
Indenture, the Trustee shall be entitled to indemnification against any loss or
expense caused by taking such action or following such direction.


 


Section 6.06.                            Limitation on
Suits.


 


(a)                                  Subject to Section 6.07,
no Holder of any Securities of any Series will have any right to institute
any proceeding with respect to this Indenture or such Securities for any remedy
thereunder, unless the Trustee for such Securities:


 


(1)                                  has failed to act for a
period of sixty (60) consecutive days after receiving notice of a continuing
Event of Default from such Holder and a request to act by Holders of at least
twenty-five percent (25%) in aggregate principal amount of the outstanding
Securities of such Series;


 


(2)                                  has been offered indemnity
satisfactory to it in its reasonable judgment; and


 


20

















 


(3)                                  has not received from the
Holders of a majority in aggregate principal amount of the outstanding
Securities of such Series a direction inconsistent with such request.


 


(b)                                 A Holder of any
Securities of any Series may not use this Indenture to prejudice the
rights of another Holder of such Securities of such Series or to obtain a
preference or priority over another Holder of Securities of such Series.


 


Section 6.07.                            Rights of Holders
to Receive Payment.


 


Notwithstanding any other provision of this
Indenture, the right of any Holder of any Securities of any Series to
receive payment of principal of, and interest on, such Securities, on or after
the respective due dates expressed in such Securities (including, if
applicable, in connection with an offer to purchase or redeem), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.


 


Section 6.08.                            Collection Suit
by Trustee.


 


If a Default specified in Section 6.01(1), 6.01(2) or
6.01(3) with respect to Securities of any Series occurs and is
continuing, the Trustee for such Securities may recover judgment in its own
name and as trustee of an express trust against the Issuer or any other obligor
on such Securities for the whole amount of principal and accrued interest and
fees remaining unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by such
Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel.


 


Section 6.09.                            Trustee May File
Proofs of Claim.


 


The Trustee for each Series of Securities may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of such Trustee (including any claim for
the compensation, expenses, disbursements and advances of such Trustee, its
agents and counsel) and the Holders of the Securities for which it acts as
trustee allowed in any judicial proceedings relating to the Issuer (or any
other obligor upon such Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any monies or other
property payable or deliverable on any such claims, and any Custodian in any
such judicial proceeding is hereby authorized by each Holder of such Securities
to make such payments to such Trustee and, in the event that such Trustee shall
consent to the making of such payments directly to such Holders, to pay to such
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel, and any
other amounts due such Trustee under this Indenture. Nothing herein contained
shall be deemed to authorize such Trustee to authorize or consent to or accept
or adopt on behalf of any Holder for which it acts as trustee any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of such Holder, or to authorize such Trustee to vote in respect
of the claim of any such Holder in any such proceeding. The Trustee shall be
entitled to participate as a member of any official committee of creditors in
the matters as it deems necessary or advisable.


 


Section 6.10.                            Priorities.


 


If the Trustee for any Series of Securities
collects any money or property pursuant to this Article Six, it shall pay
out the money or property in the following order:


 


First: to the Trustee, its agents
and attorneys for amounts due under this Indenture, including payment of all
reasonable compensation, expenses and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;


 


Second: to Holders of such
Securities for interest accrued on such Securities, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for interest; and


 


21














 


Third: to Holders of
such Securities for principal amounts due and unpaid on such Securities,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal; and


 


Fourth: to the
Issuer or, if applicable, any guarantors with respect to such Securities, as
their interests may appear, or to such other Person or Persons as a court of
competent jurisdiction shall direct.


 


The Trustee, upon prior notice to the Issuer,
may fix a record date and payment date for any payment to Holders of Securities
pursuant to this Section 6.10.


 


Section 6.11.          Undertaking for Costs.


 


In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against any Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in aggregate principal amount of
the then outstanding Securities of any Series.


 


ARTICLE SEVEN


 


TRUSTEE


 


Section 7.01.          Duties of Trustee.


 


(a)           If a Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of his or her own affairs.


 


(b)           Except during the continuance of a
Default:


 


(1)           The Trustee need perform only those duties as are
specifically set forth herein or in the Trust Indenture Act, and no duties,
covenants, responsibilities or obligations shall be implied in this Indenture
against the Trustee.


 


(2)           In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates (including Officers’
Certificates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.


 


(c)           Notwithstanding anything to the
contrary herein, the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(1)           This paragraph does not limit the effect of Section 7.01(b).


 


(2)           The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.


 


(3)           The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05.


 


22

















 


(d)           No provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or to
take or omit to take any action under this Indenture or take any action at the
request or direction of Holders if it shall have reasonable grounds for
believing that repayment of such funds is not assured to it.


 


(e)           Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.


 


(f)            The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Issuer. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.


 


(g)           In the absence of bad faith,
negligence or willful misconduct on the part of the Trustee, the Trustee shall
not be responsible for the application of any money by any Paying Agent other
than the Trustee.


 


Section 7.02.          Rights of Trustee.


 


Subject to Section 7.01:


 


(a)           The Trustee may rely conclusively on
any resolution, certificate (including any Officers’ Certificate), statement,
instrument, opinion (including any Opinion of Counsel), notice, request,
direction, consent, order, bond, debenture, or other paper or document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in such document.


 


(b)           Before the Trustee acts or refrains
from acting, it may require an Officers’ Certificate and an Opinion of Counsel,
which shall conform to the provisions of Section 10.05. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers’ Certificate or Opinion of Counsel.


 


(c)           The Trustee may act through its
attorneys and agents and shall not be responsible for the misconduct or
negligence of any agent (other than an agent who is an employee of the Trustee)
appointed with due care.


 


(d)           The Trustee shall not be liable for
any action it takes or omits to take in good faith which it reasonably believes
to be authorized or within its rights or powers under this Indenture.


 


(e)           The Trustee may consult with counsel
of its selection and the advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.


 


(f)            The Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Holders pursuant to
the provisions of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby.


 


(g)           The Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate (including any Officers’ Certificate), statement, instrument,
opinion (including any Opinion of Counsel), notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon reasonable notice
to the Issuer, to examine the books, records, and premises of the Issuer,
personally or by agent or attorney at the sole cost of the Issuer.


 


(h)           The Trustee shall not be required to
give any bond or surety in respect of the performance of its powers and duties
hereunder.


 


23

















 


(i)            The permissive rights of the Trustee
to do things enumerated in this Indenture shall not be construed as duties.


 


(j)            Except with respect to Section 4.01
and Section 4.04, the Trustee shall have no duty to inquire as to the
performance of the Issuer with respect to the covenants contained in Article Four.
In addition, the Trustee shall not be deemed to have knowledge of any Default
except (i) any Default occurring pursuant to Section 4.01, Section 4.04,
Section 6.01(1), Section 6.01(2) or Section 6.01(3) or
(ii) any Default of which the Trustee shall have received written
notification.


 


(k)           The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act for it hereunder.


 


Section 7.03.          Individual Rights of Trustee.


 


The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal
with the Issuer or an Affiliate of the Issuer with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.


 


Section 7.04.          Trustee’s Disclaimer.


 


The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Issuer’s use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its authentication.


 


Section 7.05.          Notice of Default.


 


If a Default occurs and is continuing with
respect to the Securities of any Series and the Trustee receives written
notice of such Default, the Trustee shall mail to each Holder of the Securities
of that Series and, if any Bearer Securities are outstanding, publish on
one occasion in an Authorized Newspaper, notice of a Default within thirty (30)
days after it occurs or, if later, after a Responsible Officer of the Trustee
has knowledge of such Default. Except in the case of a Default in payment of
principal of or interest on any Security of any Series, the Trustee may
withhold the notice if and so long as the Board of Directors, the executive
committee, or a trust committee of directors and/or Responsible Officers, of
the Trustee in good faith determines that withholding the notice is in the
interests of Holders of that Series.


 


Section 7.06.          Reports by Trustee to Holders.


 


Within sixty (60) days after each January 1,
beginning with January 1, 20___, the Trustee shall, to the extent that any
of the events described in Trust Indenture Act § 313(a) occurred within
the previous twelve months, but not otherwise, mail to each Holder a brief
report dated as of such date that complies with Trust Indenture Act § 313(a).
The Trustee also shall comply with Trust Indenture Act §§ 313(b), 313(c) and
313(d).


 


A copy of each report at the time of its
mailing to Holders of any Series shall be filed with the SEC and each
stock exchange on which the Securities of that Series are listed. The
Issuer shall promptly notify the Trustee when Securities of any Series are
listed on any stock exchange.


 


The Issuer shall notify the Trustee if the
Securities of any Series become listed on any securities exchange or of
any delisting thereof, and the Trustee shall comply with Trust Indenture Act §
313(d).


 


Section 7.07.          Compensation and Indemnity.


 


The Issuer shall pay to the Trustee from time
to time such compensation as the Issuer and the Trustee shall from time to time
agree in writing for its services hereunder. The Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Issuer shall reimburse the Trustee upon request for all 


 


24

















 


reasonable
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee’s negligence, bad faith or willful misconduct. Such
expenses shall include the reasonable fees and expenses of the Trustee’s agents
and counsel.


 


The Issuer shall indemnify each of the
Trustee or any predecessor Trustee and its agents for, and hold them harmless
against, any and all loss, damage, claims (including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee)), liability
or expense incurred by them arising out of or in connection with the acceptance
or administration of this trust (including the reasonable costs and expenses of
defending themselves against or investigating any claim or liability in
connection with the exercise or performance of any of the Trustee’s rights,
powers or duties hereunder), except in each of the foregoing cases to the
extent caused by any negligence, bad faith or willful misconduct on their part.
The Trustee shall notify the Issuer promptly of any claim asserted against the
Trustee or any of its agents for which it may seek indemnity. The Issuer may,
subject to the approval of the Trustee (which approval shall not be
unreasonably withheld), defend the claim and the Trustee shall cooperate in the
defense. The Trustee and its agents subject to the claim may have separate
counsel and the Issuer shall pay the reasonable fees and expenses of such
counsel; provided, however,
that the Issuer will not be required to pay such fees and expenses if, subject
to the approval of the Trustee (which approval shall not be unreasonably
withheld), it assumes the Trustee’s defense and there is no conflict of
interest between the Issuer and the Trustee and its agents subject to the claim
in connection with such defense as reasonably determined by the Trustee. The
Issuer need not pay for any settlement made without its written consent. The
Issuer need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.


 


When the Trustee incurs expenses or renders
services after a Default specified in Section 6.01(5) or Section 6.01(6) occurs,
such expenses and the compensation for such services shall be paid to the
extent allowed under any Bankruptcy Law.


 


Notwithstanding any other provision in this
Indenture, the foregoing provisions of this Section 7.07 shall survive the
satisfaction and discharge of this Indenture or the appointment of a successor
Trustee.


 


Section 7.08.          Replacement of Trustee.


 


The Trustee may resign with respect to the
Securities of one or more Series by so notifying the Issuer at least
thirty (30) days prior to the date of the proposed resignation. The Holders of
a majority in principal amount of the Securities of any Series may remove
the Trustee with respect to that Series by so notifying the Issuer and the
Trustee and may appoint a successor Trustee. The Issuer may remove the Trustee
with respect to Securities of one or more Series if:


 


(1)           the Trustee fails to comply with Section 7.10;


 


(2)           the Trustee is adjudged a bankrupt or an insolvent;


 


(3)           a receiver or other public officer takes charge of the
Trustee or its property; or


 


(4)           the Trustee becomes incapable of acting.


 


If the Trustee retires, whether by
resignation or removal, or if a vacancy exists in the office of Trustee for any
reason, the Issuer shall notify each Holder of such event and shall promptly
appoint a successor Trustee. Within one (1) year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuer.


 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Issuer.
Immediately after that, after payment of all sums then owing to the Trustee
pursuant to Section 7.07, the retiring Trustee shall transfer all property
held by it as Trustee to the successor Trustee, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties 


 


25

















 


of the Trustee
with respect to each Series of Securities for which it is acting as
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of each such Series and, if any Bearer
Securities are outstanding, publish such notice on one occasion in an
Authorized Newspaper.


 


If a successor Trustee with respect to the
Securities of any one or more Series does not take office within sixty
(60) days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Issuer or the Holders of at least ten percent (10%) in principal
amount of the Securities of the applicable Series may petition any court
of competent jurisdiction for the appointment of a successor Trustee at the
expense of the Issuer.


 


If the Trustee fails to comply with Section 7.10,
any Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.


 


Notwithstanding the appointment of a
successor Trustee pursuant to this Section 7.08, the Issuer’s obligations
under Section 7.07 shall continue for the benefit of the retiring Trustee.


 


Section 7.09.          Successor Trustee by Merger, Etc.


 


If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or
transferee corporation is otherwise eligible hereunder, be the successor
Trustee; provided, however,
that such corporation shall be otherwise qualified and eligible under this Article Seven.


 


Section 7.10.          Eligibility; Disqualification.


 


The Trustee shall at all times satisfy the
requirements of Trust Indenture Act §§ 310(a)(1), 310(a)(2) and 310(a)(5).
The Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition. The
Trustee shall comply with Trust Indenture Act § 310(b); provided,
however, that there shall be excluded
from the operation of Trust Indenture Act § 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Issuer are outstanding, if the
requirements for such exclusion set forth in Trust Indenture Act § 310(b)(1) are
met. The provisions of Trust Indenture Act § 310 shall apply to the Issuer and
any other obligor of the Securities.


 


Section 7.11.          Preferential Collection of Claims
Against the Issuer.


 


The Trustee, in its capacity as Trustee
hereunder, shall comply with Trust Indenture Act § 311(a), excluding any
creditor relationship listed in Trust Indenture Act § 311(b). A Trustee who has
resigned or been removed shall be subject to Trust Indenture Act § 311(a) to
the extent indicated.


 


ARTICLE EIGHT


 


DISCHARGE OF
INDENTURE; DEFEASANCE


 


Section 8.01.          Termination of the Issuer’s
Obligations.


 


Except as otherwise provided in the last
paragraph of this Section 8.01, this Indenture will be discharged and will
cease to be of further effect as to a Series of Securities issued
hereunder, when either:


 


(a)           all such Securities that have been
authenticated (except lost, stolen or destroyed Securities that have been
replaced or paid and Securities for whose payment money has been deposited in
trust or segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from this trust), have been delivered to the Trustee
for cancellation, or


 


(b)           (1) all such Securities that
have not been delivered to the Trustee for cancellation have become due and
payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Issuer has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in 


 


26

















 


trust solely
for the benefit of the Holders of such Securities cash in Dollars or U.S.
Government Obligations, or a combination thereof, in amounts sufficient
(without reinvestment) to pay and discharge the entire Indebtedness (including
all principal and accrued interest) on such Securities not theretofore
delivered to the Trustee for cancellation to the date of maturity or
redemption;


 


(2)           the Issuer or any guarantor of such Securities has paid or
caused to be paid all other sums payable by the Issuer under this Indenture;
and


 


(3)           the Issuer has delivered irrevocable instructions to the
Trustee for such Securities under this Indenture to apply the deposited money
toward the payment of such Securities at maturity or on the date of redemption,
as the case may be.


 


In addition, the Issuer must deliver an
Officers’ Certificate and an Opinion of Counsel to the Trustee for such
Securities stating that all conditions precedent to satisfaction and discharge
have been complied with.


 


In the case of clause (b) of this Section 8.01,
and subject to the next sentence and notwithstanding the foregoing paragraph,
the Issuer’s obligations in Sections 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 4.03
(as to legal existence of the Issuer only), 7.07, 8.05 and 8.06 shall survive
until such Securities are no longer outstanding pursuant to the last paragraph
of Section 2.09. In addition, nothing in this Section 8.01 shall be
deemed to discharge the obligations in Section 7.07, 8.04(a), 8.05 or
8.06, all of which shall survive the satisfaction and discharge of this
Indenture.


 


After such delivery or irrevocable deposit,
the Trustee upon request by the Issuer shall acknowledge in writing the
discharge of the Issuer’s obligations under such Securities and this Indenture
except for the surviving obligations specified above.


 


Section 8.02.          Legal Defeasance and Covenant
Defeasance.


 


(a)           The Issuer may at any time, at the
option of its Board of Directors evidenced by a resolution set forth in an
Officers’ Certificate, elect to have either Section 8.02(b) or 8.02(c) applied
to all outstanding Securities of any Series upon compliance with the
conditions set forth below in this Article Eight.


 


(b)           Upon the Issuer’s exercise under Section
8.02(a) of the option applicable to this Section 8.02(b), the Issuer and each
guarantor, if any, of such Securities will, subject to the satisfaction of the
conditions set forth in Section 8.03, be deemed to have been discharged from
its or their obligations with respect to all outstanding Securities of such Series
(including the related guarantees, if any) on the date the conditions set forth
below are satisfied (hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Issuer and such guarantors,
if any, will be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities of such Series (including the related
guarantees, if any), which will thereafter be deemed to be “outstanding” only
for the purposes of Section 8.04 and the other Sections of this Indenture
referred to in clauses (1) and (2) below, and to have satisfied all its or
their other obligations under such Securities, such guarantees, if any, and
this Indenture (and the Trustee for such Securities, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:


 


(1)           the rights of Holders of outstanding Securities of such Series to
receive, solely from the trust fund described in Section 8.04, and as more
fully set forth in Section 8.04, payments in respect of the principal of
or interest on, such Securities when such payments are due;


 


(2)           the Issuer’s obligations with respect to such Securities
under Article Two and Section 4.02 hereof;


 


(3)           the rights, powers, trusts, duties and immunities of the
Trustee for such Securities hereunder and the Issuer’s and the guarantors’, if
any, obligations in connection therewith; and


 


27

















 


(4)           the provisions of this Article Eight applicable to
Legal Defeasance (including Sections 8.04, 8.05 and 8.06).


 


Subject to compliance with this Article Eight,
the Issuer may exercise its option under this Section 8.02(b) notwithstanding
the prior exercise of its option under Section 8.02(c) hereof.


 


(c)           Upon the Issuer’s exercise under Section 8.02(a) hereof
of the option applicable to this Section 8.02(c), the Issuer and each of
the guarantors, if any, will, subject to the satisfaction of the conditions set
forth in Section 8.03 hereof, be released from each of their or its
obligations under the covenants specified in a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, in accordance with Section 2.02(v),
with respect to the outstanding Securities of the applicable Series on and
after the date the conditions set forth in Section 8.03 hereof are satisfied
(hereinafter, “Covenant Defeasance”), and such
Securities shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders of such Securities
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Securities shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Securities of such Series, the Issuer may omit to
comply with and shall have no obligation or liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default under Section 6.01, but, except as specified above, the remainder
of this Indenture and such Securities will be unaffected thereby. In addition,
upon the Issuer’s exercise under Section 8.02(a) of the option
applicable to this Section 8.02(c), subject to the satisfaction of the
conditions set forth in Section 8.03, clause (4) of Section 6.01
shall not constitute an Event of Default.


 


Section 8.03.          Conditions to Legal Defeasance or
Covenant Defeasance.


 


In order to exercise either Legal Defeasance
under Section 8.02(b) or Covenant Defeasance under Section 8.02(c) with
respect to Securities of any Series:


 


(1)           the Issuer must irrevocably deposit with the Trustee for
such Securities, in trust, for the benefit of the Holders of such Securities,
money or U.S. Government Obligations or a combination thereof, in such amounts
as will be sufficient (without reinvestment), in the opinion of a nationally
recognized firm of independent public accountants selected by the Issuer, to
pay the principal of and interest on, and any mandatory sinking fund payments
in respect of, the outstanding Securities of such Series on the stated
date for payment thereof or on the applicable redemption date, as the case may
be, and the Issuer must specify whether such Securities are being defeased to
such stated date for payment or to a particular redemption date;


 


(2)           in the case of Legal Defeasance, the Issuer shall have
delivered to the Trustee for such Securities an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that:


 


(i)            the Issuer has received from, or there has been published
by, the Internal Revenue Service, a ruling, or


 


(ii)           since the date of this Indenture, there has been a change
in the applicable U.S. federal income tax law,


 


in either case to the effect that, and based
thereon, the Holders of the outstanding Securities of such Series will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such Legal Defeasance and will be subject to U.S. federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;


 


(3)           in the case of Covenant Defeasance, the Issuer shall have
delivered to the Trustee for such Securities an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming 


 


28

















 


that the Holders of such Securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such Covenant Defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;


 


(4)           no Default with respect to such Securities shall have
occurred and be continuing on the date of such deposit (other than a Default
resulting from the borrowing of funds to be applied to such deposit);


 


(5)           the Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument to which the Issuer or any of its Subsidiaries is a
party or by which the Issuer or any of its Subsidiaries is bound (other than
any such default resulting solely from the borrowing of funds to be applied to
such deposit and the grant of any Lien on such deposit in favor of the Trustee
and/or the Holders);


 


(6)           the Issuer shall have delivered to the Trustee for such
Securities an Officers’ Certificate stating that the deposit was not made by
the Issuer with the intent of preferring the Holders of such Securities over
any other creditors of the Issuer or with the intent of defeating, hindering,
delaying or defrauding any other of its creditors; and


 


(7)           the Issuer shall have delivered to the Trustee for such
Securities an Officers’ Certificate and an Opinion of Counsel, stating, in the
case of the Officers’ Certificate, clauses (1) through (6) of this Section 8.03,
as applicable, have been complied with and stating, in the case of the Opinion
of Counsel, that the conditions provided for in clause (2) or (3), as
applicable, and clause (5) of this Section 8.03 have been complied
with.


 


Section 8.04.          Application of Trust Money.


 


(a)           The Trustee or Paying Agent shall
hold in trust all money and U.S. Government Obligations (including the proceeds
thereof) deposited with it pursuant to this Article Eight in respect of
the outstanding Securities of any Series, and shall apply the deposited money
and U.S. Government Obligations (including any proceeds thereof) in accordance
with this Indenture to the payment of the principal of and the interest on such
Securities. The Trustee shall be under no obligation to invest said money and
U.S. Government Obligations (including any proceeds thereof), except as it may
agree with the Issuer.


 


(b)           The Issuer will pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
money or U.S. Government Obligations (including any proceeds thereof) deposited
pursuant to Section 8.03, or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Securities of the applicable
Series.


 


(c)           Anything in this Article Eight
to the contrary notwithstanding, the Trustee shall promptly deliver or pay to
the Issuer from time to time upon the request of the Issuer any money or U.S.
Government Obligations held by it as provided in Section 8.03 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.05.          Repayment to the Issuer.


 


Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of the
principal of, premium, if any, or interest on, any Series of Securities
and remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Issuer on its request
or (if then held by the Issuer) will be discharged from such trust; and the
Holders of such Securities will thereafter be permitted to look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustee
thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may 


 


29

















 


at the expense
of the Issuer cause to be published once, in the New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than thirty (30)
days from the date of such notification or publication, any unclaimed balance
of such money then remaining will be repaid to the Issuer.


 


Section 8.06.          Reinstatement.


 


If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article Eight
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuer’s and any applicable guarantors’ Obligations under this Indenture and
the applicable Securities and the guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Eight until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with this Article Eight; provided, however, that if the Issuer has made any payment of interest
on, or principal of, any such Securities following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.


 


ARTICLE NINE


 


AMENDMENTS,
SUPPLEMENTS AND WAIVERS


 


Section 9.01.          Without Consent of Holders.


 


Subject to Section 9.02 of this
Indenture, the Issuer and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any Holder:


 


(1)           to cure any ambiguity, defect or inconsistency;


 


(2)           to provide for uncertificated Securities in addition to or
in place of certificated Securities;


 


(3)           to provide for the assumption of the Issuer’s or a
guarantor’s obligations to the Holders of the Securities in the case of a
merger, consolidation or sale of all or substantially all of the assets, in
accordance with Article Five;


 


(4)           to add guarantees with respect to the Securities of any
Series;


 


(5)           to release any guarantor from its guarantee or any of its
other obligations under this Indenture (to the extent permitted by this
Indenture);


 


(6)           to make any change that would provide any additional
rights or benefits to the Holders of Securities or that does not adversely
affect the legal rights hereunder of any Holder;


 


(7)           to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the Trust Indenture Act;


 


(8)           to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this
Indenture; or


 


(9)           to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more Series and
to add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee.


 


Upon the request of the Issuer accompanied by
a resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents 


 


30

















 


described in Section 7.02(b),
the Trustee will join with the Issuer in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee will not be obligated to enter into such
amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.


 


Section 9.02.          With Consent of Holders.


 


(a)           The Issuer and the Trustee may enter
into a supplemental indenture hereto with the written consent of the Holders of
at least a majority in aggregate principal amount of the outstanding Securities
of each Series affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for the Securities
of such Series), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture hereto or of modifying in any manner the rights of the
Holders of each such Series. Subject to Section 6.07, the Holders of at
least a majority in aggregate principal amount of the outstanding Securities of
each Series by notice to the Trustee (including waivers obtained in
connection with a tender offer or exchange offer for the Securities of such
Series) may waive compliance by the Issuer with any provision of this Indenture
or the Securities with respect to such Series without notice to any other
Holders.


 


(b)           Notwithstanding Section 9.02(a),
without the consent of each Holder affected, no amendment or waiver may (with
respect to any Securities held by a non-consenting Holder):


 


(1)           reduce the principal or change the Stated Maturity of any
Security or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;


 


(2)           reduce the rate of or extend the time for payment of
interest on any Security;


 


(3)           reduce the principal amount of Discount Securities payable
upon acceleration of the maturity thereof;


 


(4)           waive a redemption payment with respect to any Security or
change any of the provisions with respect to the redemption of any Securities,
except as specifically set forth in the Board Resolution, supplemental
indenture or Officers’ Certificate delivered pursuant to Section 2.02;


 


(5)           make the principal of or interest, if any, on any Security
payable in money or currency other than that stated in the Security;


 


(6)           if the Securities of such Holder are entitled to the
benefit of any guarantee, release any guarantor of such Securities other than
as provided in this Indenture or modify the guarantee in any manner adverse to
such Holder;


 


(7)           waive a Default in the payment of principal of or interest
on any Security (except a rescission of acceleration of the Securities of any Series by
the Holders of at least a majority in principal amount of the outstanding Securities
of such Series and a waiver of the payment Default that resulted from such
acceleration);


 


(8)           change the amount of Securities whose Holders must consent
to an amendment, supplement or waiver; or


 


(9)           make any change in Section 6.07, this Section 9.02(b),
Section 10.14 or Section 10.15.


 


(c)           It shall not be necessary for the
consent of the Holders of Securities under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance thereof.


 


31














 


(d)           A consent to any amendment,
supplement or waiver under this Indenture by any Holder given in connection
with an exchange (in the case of an exchange offer) or a tender (in the case of
a tender offer) of such Holder’s Securities will not be rendered invalid by
such tender or exchange.


 


(e)           After an amendment, supplement or
waiver under this Section 9.02 becomes effective, the Issuer shall mail,
or cause to be mailed, to the Holders of Securities affected thereby and, if
any Bearer Securities affected thereby are outstanding, publish on one occasion
in an Authorized Newspaper, a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuer to mail or publish such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.


 


Section 9.03.          Compliance with the Trust Indenture
Act.


 


Every amendment to this Indenture or the
Securities of one or more Series shall be set forth in a supplemental
indenture hereto that complies with the Trust Indenture Act as then in effect.


 


Section 9.04.          Revocation and Effect of Consents.


 


Until an amendment, supplement or waiver
becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security, even
if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security before the date on which the Trustee receives an Officers’
Certificate certifying that the Holders of the requisite Securities have
consented (and not theretofore revoked such consent) to the amendment, supplement
or waiver.


 


The Issuer may, but shall not be obligated
to, fix a record date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver, which record date shall be at
least thirty (30) days prior to the first solicitation of such consent. If a
record date is fixed, then notwithstanding the last sentence of the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than ninety (90) days after such record date. The Issuer shall inform the
Trustee in writing of the fixed record date if applicable.


 


After an amendment, supplement or waiver
becomes effective, it shall bind every Holder, unless it makes a change
described in any of clauses (1) through (9) of Section 9.02(b),
in which case, the amendment, supplement or waiver shall bind only each Holder
of Securities who has consented to it and every subsequent Holder of a
Securities or portion of Securities that evidences the same debt as the
consenting Holder’s Securities; provided, however, that no such amendment, supplement or waiver shall
impair or affect the right of any Holder to receive payment of principal of,
and interest on, a Security, on or after the respective due dates therefor, or
to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.


 


Section 9.05.          Notation on or Exchange of
Securities.


 


If an amendment, supplement or waiver changes
the terms of a Security, the Issuer may require the Holder of the Security to
deliver it to the Trustee. The Issuer shall provide the Trustee with an
appropriate notation on the Security about the changed terms and cause the
Trustee to return it to the Holder at the Issuer’s expense. Alternatively, if
the Issuer or the Trustee so determines, the Issuer in exchange for the
Security shall issue, and the Trustee shall authenticate, a new Security that
reflects the changed terms. Failure to make the appropriate notation or issue a
new Security shall not affect the validity and effect of such amendment,
supplement or waiver.


 


Section 9.06.          Trustee To Sign Amendments, Etc.


 


The Trustee shall execute any amendment,
supplement or waiver authorized pursuant to this Article Nine; provided, however, that
the Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver which affects the Trustee’s own rights, duties or
immunities under this Indenture. The Trustee shall be 


 


32

















 


entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
and an Officers’ Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is
authorized or permitted by this Indenture and constitutes legal, valid and
binding obligations of the Issuer enforceable in accordance with its terms,
subject to customary exceptions. Such Opinion of Counsel shall be at the
expense of the Issuer.


 


Section 9.07.          Trustee Protected.


 


In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee shall sign all supplemental indentures hereto, except that the Trustee
need not sign any supplemental indenture that adversely affects its rights.


 


ARTICLE TEN


 


MISCELLANEOUS


 


Section 10.01.        Trust Indenture Act Controls.


 


If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required or deemed to
be included in this Indenture by the Trust Indenture Act, such required or
deemed provision shall control.


 


Section 10.02.        Notices.


 


Any notices or other communications to the
Issuer, any Subsidiary of the Issuer, or the Trustee required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by nationally recognized overnight courier service, by facsimile
transmission or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:


 


if to the Issuer or any of its Subsidiaries:


 


Satcon Technology Corporation

27 Drydock Avenue

Boston, Massachusetts 02210

Attention: Chief Executive Officer

Telephone: (617) 897-2400

Facsimile: (617) 897-2401


 


With a copy to (which copy alone shall not
constitute notice):


 


Greenberg Traurig, LLP

One International Place

Boston, Massachusetts 02210

Attention: Bradley A. Jacobson, Esq.

Telephone: (617) 310-6000

Facsimile: (617) 310-6001


 


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if to the Trustee:


 


                                                          

                                                          

                                                          

Attention:                                          

Telephone:                                        

Facsimile:                                         


 


Each of the Issuer (both for itself and any
of its Subsidiaries) and the Trustee by written notice to each other such
Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Issuer, any Subsidiary of the
Issuer, and the Trustee shall be deemed to have been given or made as of the
date so delivered if personally delivered; when replied to; when receipt is
acknowledged, if sent by facsimile transmission during normal business hours of
the recipient, or, if not sent during normal business hours of the recipient,
on the Business Day after the day receipt is acknowledged; five (5) calendar
days after mailing if sent by registered or certified mail, postage prepaid
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee); one (1) Business Day
after deposit with a nationally recognized overnight courier service
guaranteeing overnight delivery of such notice or communication.


 


Any notice or communication to a Holder
required or permitted hereunder shall be mailed to the Holder at the Holder’s
address as it appears on the registration books of the Registrar and, if any
Bearer Securities are outstanding, published in an Authorized Newspaper.


 


Failure to mail a notice or communication to
a Holder of Securities of any Series or any defect in it shall not affect
its sufficiency with respect to other Holders of that or any other Series. If a
notice or communication is mailed or published in the manner provided above,
within the time prescribed, it is duly given, whether or not the addressee
receives it.


 


If the Issuer mails a notice or communication
to Holders, it shall mail a copy to the Trustee and each Agent at the same
time.


 


Section 10.03.        Communications by Holders with Other
Holders.


 


Holders of any Series may communicate
pursuant to Trust Indenture Act § 312(b) with other Holders of that Series or
any other Series with respect to their rights under this Indenture or the
Securities of that Series or any other Series. The Issuer, the Trustee,
the Registrar and any other Person shall have the protection of Trust Indenture
Act § 312(c).


 


Section 10.04.        Certificate and Opinion as to
Conditions Precedent.


 


Upon any request or application by the Issuer
to the Trustee to take any action under this Indenture, the Issuer shall
furnish to the Trustee, at the request of the Trustee:


 


(1)           an Officers’ Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that all conditions precedent, if any, to
be performed or effected by the Issuer, if any, provided for in this Indenture
relating to the proposed action have been complied with; and


 


(2)           an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with.


 


Section 10.05.        Statements Required in Certificate or
Opinion.


 


Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the Officers’ Certificate required by Section 4.04 or a certificate
provided pursuant to Trust Indenture Act § 314(a)(4)) shall comply with the
provisions of Trust Indenture Act § 314(e) and shall include:


 


34

















 


(1)           a statement that the Person making such certificate or
opinion has read such covenant or condition;


 


(2)           a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;


 


(3)           a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with or satisfied; and


 


(4)           a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with; provided, however, that
with respect to matters of fact, an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.


 


Section 10.06.        Rules by Trustee and Agents.


 


The Trustee may make reasonable rules for
action by or a meeting of Holders of one or more Series. Any Agent may make
reasonable rules and set reasonable requirements for its functions.


 


Section 10.07.        Legal Holidays.


 


If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day.


 


Section 10.08.        Governing Laws.


 


This Indenture, the Securities, and any
guarantees hereunder, will be governed by and construed in accordance with the
laws of the State of New York.


 


Section 10.09.        No Adverse Interpretation of Other
Agreements.


 


This Indenture may not be used to interpret
another indenture, loan or debt agreement of any of the Issuer or any of its
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.


 


Section 10.10.        No Recourse Against Others.


 


No director, officer, employee, incorporator,
stockholder, member or manager of the Issuer or any Subsidiary shall have any
liability for any obligations of the Issuer or any Subsidiary under the
Securities of any Series or this Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation, and no Officer
shall have any personal liability for any Officers’ Certificate signed by such
Officer or any inaccuracy therein. Each Holder of Securities of any Series by
accepting such Securities waives and releases all such liability. Such waiver
and release shall be part of the consideration for issuance of such Securities.


 


Section 10.11.        Successors.


 


All agreements of the Issuer or any
Subsidiary in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.


 


Section 10.12.        Duplicate Originals.


 


All parties may sign any number of copies of
this Indenture. Each signed copy or counterpart shall be an original, but all
of them together shall represent the same agreement.


 


35

















 


Section 10.13.        Severability.


 


To the extent permitted by applicable law, in
case any one or more of the provisions in this Indenture or in the Securities
shall be held invalid, illegal or unenforceable, in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.


 


Section 10.14.        Securities in a Foreign Currency or
in ECU.


 


Unless otherwise specified in a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate
delivered pursuant to Section 2.02 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture
any action may be taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all Series or all Series affected
by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or
currency other than Dollars (including ECUs), then the principal amount of
Securities of such Series which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.14, “Market Exchange Rate”
shall mean the noon Dollar buying rate in New York City, New York for cable
transfers of that currency as published by the Federal Reserve Bank of New
York; provided, however,
in the case of ECUs, “Market Exchange Rate”
shall mean the rate of exchange determined by the Commission of the European
Union (or any successor thereto) as published in the Official Journal of the
European Union (such publication or any successor publication, the “Journal”). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York, New York or in the country of issue of the currency in
question or, in the case of ECUs, in Luxembourg or such other quotations or, in
the case of ECUs, rates of exchange as the Trustee, upon consultation with the
Issuer, shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a Series denominated
in currency other than Dollars in connection with any action taken by Holders
of Securities pursuant to the terms of this Indenture.


 


All decisions and determinations of the
Trustee regarding the Market Exchange Rate or any alternative determination
provided for in the preceding paragraph shall be in its sole discretion and
shall, in the absence of manifest error, to the extent permitted by law, be
conclusive for all purposes and irrevocably binding upon the Issuer and all
Holders.


 


Section 10.15.        Judgment Currency.


 


The Issuer agrees, to the fullest extent that
it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest or other amount on the Securities of
any Series (the “Required Currency”)
into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York, New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is not
a New York Banking Day, then the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York, New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, any recovery pursuant to any judgment
(whether or not entered in accordance with the preceding clause (a) of
this Section 10.15), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable,
and (iii) shall not be affected by judgment being obtained for any other
sum due under this 


 


36

















 


Indenture. For
purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in The City of New
York, New York on which banking institutions are authorized or required by law,
regulation or executive order to close.


 


ARTICLE ELEVEN


 


SINKING FUNDS


 


Section 11.01.        Applicability of Article.


 


The provisions of this Article shall be
applicable to any sinking fund for the retirement of the Securities of a
Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.


 


The minimum amount of any sinking fund
payment provided for by the terms of the Securities of any Series is
herein referred to as a “mandatory sinking fund
payment” and any other amount provided for by the terms of
Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for by the terms
of Securities of any Series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.02. Each sinking fund
payment shall be applied to the redemption of Securities of any Series as
provided for by the terms of the Securities of such Series.


 


Section 11.02.        Satisfaction of Sinking Fund Payments
with Securities.


 


The Issuer may, in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of any Series to
be made pursuant to the terms of such Securities (1) deliver outstanding
Securities of such Series to which such sinking fund payment is applicable
(other than any of such Securities previously called for mandatory sinking fund
redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been repurchased
by the Issuer or redeemed either at the election of the Issuer pursuant to the
terms of such Series of Securities (except pursuant to any mandatory
sinking fund) or through the application of permitted optional sinking fund
payments or other optional redemptions pursuant to the terms of such Securities,
provided that such Securities have not
been previously so credited. Such Securities shall be received by the Trustee,
together with an Officers’ Certificate with respect thereto, not later than
fifteen (15) days prior to the date on which the Trustee begins the process of
selecting Securities for redemption, and shall be credited for such purpose by
the Trustee at the price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.02, the principal
amount of Securities of such Series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such Series for redemption, except upon receipt of an Issuer
Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however,
that the Trustee or such Paying Agent shall from time to time upon receipt of
an Issuer Order pay over and deliver to the Issuer any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Issuer to the
Trustee of Securities of that Series purchased by the Issuer having an
unpaid principal amount equal to the cash payment required to be released to
the Issuer.


 


Section 11.03.        Redemption of Securities for Sinking
Fund.


 


Not less than forty-five (45) days (unless
otherwise indicated in the Board Resolution, supplemental indenture or Officers’
Certificate in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Issuer will
deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing mandatory sinking fund payment for that Series pursuant to
the terms of that Series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 11.02,
and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and the Issuer shall thereupon be obligated to
pay the amount therein specified.


 


37

















 


Not less than thirty (30) days (unless
otherwise indicated in the Board Resolution, supplemental indenture or Officers’
Certificate in respect of a particular Series of Securities) before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 3.02
and cause notice of the redemption thereof to be given in the name of and at
the expense of the Issuer in the manner provided in Section 3.03. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.04, 3.05 and 3.06.


 


IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed.


 


	
   

  	
  SATCON TECHNOLOGY CORPORATION,

  
	
   

  	
  as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Its:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Its:

  
				



 


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