Exhibit 4.4


 


SENIOR INDENTURE


 


CAPSTONE TURBINE CORPORATION


 


ISSUER


 


and


 


[______________________]


 


Dated as of


 


[__] [__], 20[__]


 



     


     


    




 


TABLE OF CONTENTS


 


Page


 




	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE	1
	Section 1.01 Definitions.	1
	Section 1.02 Other Definitions.	5
	Section 1.03 Incorporation by Reference of Trust Indenture Act	5
	Section 1.04 Rules of Construction	6
	ARTICLE II THE SECURITIES	6
	Section 2.01 Issuable in Series	6
	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	9
	Section 2.05 Paying Agent to Hold Money in Trust	10
	Section 2.06 Holder Lists	10
	Section 2.07 Transfer and Exchange	10
	Section 2.08 Mutilated, Destroyed, Lost and Stolen Securities.	11
	Section 2.09 Outstanding Securities	11
	Section 2.10 Treasury Securities	12
	Section 2.11 Temporary Securities	12
	Section 2.12 Cancellation	12
	Section 2.13 Defaulted Interest	12
	Section 2.14 Global Securities.	12
	Section 2.15 CUSIP Numbers	14
	ARTICLE III REDEMPTION	14
	Section 3.01 Notice 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	16
	ARTICLE IV COVENANTS	16
	Section 4.01 Payment of Principal and Interest	16
	Section 4.02 SEC Reports	16
	Section 4.03 Compliance Certificate	16
	Section 4.04 Stay, Extension and Usury Laws	16
	Section 4.05 Maintenance of Office or Agency	16
	ARTICLE V SUCCESSORS	17
	Section 5.01 When Company May Merge, Etc	17
	Section 5.02 Successor Person Substituted	17
	ARTICLE VI DEFAULTS AND REMEDIES	17
	Section 6.01 Events of Default	17
	Section 6.02 Acceleration of Maturity; Rescission and Annulment	19
	Section 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee	19
	Section 6.04 Trustee May File Proofs of Claim	20
	Section 6.05 Trustee May Enforce Claims Without Possession of Securities	20



 






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	Section 6.06 Application of Money Collected	20
	Section 6.07 Section 6.0 Limitation on Suits	21
	Section 6.08 Unconditional Right of Holders to Receive Principal and Interest	21
	Section 6.09 Restoration of Rights and Remedies	22
	Section 6.10 Rights and Remedies Cumulative	22
	Section 6.11 Delay or Omission Not Waiver	22
	Section 6.12 Control by Holders	22
	Section 6.13 Waiver of Past Defaults	22
	Section 6.14 Undertaking for Costs	23
	Section 6.15 Waiver of Stay or Extension Laws	23
	ARTICLE VII TRUSTEE	23
	Section 7.01 Duties of Trustee.	23
	Section 7.02 Rights of Trustee.	25
	Section 7.03 Individual Rights of Trustee	26
	Section 7.04 Trustee’s Disclaimer	26
	Section 7.05 Notice of Defaults	26
	Section 7.06 Reports by Trustee to Holders	27
	Section 7.07 Compensation and Indemnity	27
	Section 7.08 Replacement of Trustee	27
	Section 7.09 Successor Trustee by Merger, etc	28
	Section 7.10 Eligibility; Disqualification	29
	Section 7.11 Preferential Collection of Claims Against Company	29
	ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE	29
	Section 8.01 Satisfaction and Discharge of Indenture	29
	Section 8.02 Application of Trust Funds; Indemnification.	30
	Section 8.03 Legal Defeasance of Securities of any Series	30
	Section 8.04 Covenant Defeasance	32
	Section 8.05 Repayment to Company	33
	Section 8.06 Reinstatement	33
	ARTICLE IX AMENDMENTS AND WAIVERS	34
	Section 9.01 Without Consent of Holders	34
	Section 9.02 With Consent of Holders	35
	Section 9.03 Limitations	35
	Section 9.04 Compliance with Trust Indenture Act	36
	Section 9.05 Revocation and Effect of Consents	36
	Section 9.06 Notation on or Exchange of Securities	36
	Section 9.07 Trustee Protected	36
	ARTICLE X MISCELLANEOUS	37
	Section 10.01 Trust Indenture Act Controls	37
	Section 10.02 Notices.	37
	Section 10.03 Communication by Holders with Other Holders	38
	Section 10.04 Certificate and Opinion as to Conditions Precedent	38
	Section 10.05 Statements Required in Certificate or Opinion	38
	Section 10.06 Rules by Trustee and Agents	38
	Section 10.07 Legal Holidays	38
	Section 10.08 No Recourse Against Others	39



 






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	Section 10.09 Counterparts	39
	Section 10.10 Governing Laws	39
	Section 10.11 No Adverse Interpretation of Other Agreements	39
	Section 10.12 Successors	39
	Section 10.13 Severability	39
	Section 10.14 Table of Contents, Headings, Etc	39
	Section 10.15 Securities in a Foreign Currency	39
	Section 10.16 Judgment Currency	40
	Section 10.17 U.S.A. Patriot Act	41
	Section 10.18 Waiver of Jury Trial	41
	ARTICLE XI SINKING FUNDS	41
	Section 11.01 Applicability of Article	41
	Section 11.02 Satisfaction of Sinking Fund Payments with Securities	41
	Section 11.03 Redemption of Securities for Sinking Fund	41
	ARTICLE XII SUBORDINATION OF SECURITIES	42
	Section 12.01 Agreement of Subordination	42
	Section 12.02 Payments to Holders.	42
	Section 12.03 Subrogation of Securities	44
	Section 12.04 Authorization by Holders	45
	Section 12.05 Notice to Trustee	45
	Section 12.06 Trustee’s Relation to Senior Indebtedness	46
	Section 12.07 No Impairment of Subordination	46
	Section 12.08 Rights of Trustee	46
	Section 12.09 Article Applicable to Paying Agents	46


 






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CAPSTONE TURBINE CORPORATION

Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of [__] [__], 20[__]


 


	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
	Section 311 (a)	 	7.11
	(b)	 	7.11
	(c)	 	NOT APPLICABLE
	Section 312 (a)	 	2.06
	(b)	 	10.03
	(c)	 	10.03
	Section 313 (a)	 	7.06
	(b)(1)	 	7.06
	(b)(2)	 	7.06
	(c)(1)	 	7.06
	(d)	 	7.06
	Section 314 (a)	 	4.02, 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
	Section 315 (a)	 	7.01
	(b)	 	7.05
	(c)	 	7.01
	(d)	 	7.01
	(e)	 	6.14
	Section 316 (a)	 	2.10
	(a)(1)(a)	 	6.12
	(a)(1)(b)	 	6.13
	(b)	 	6.08
	Section 317 (a)(1)	 	6.03
	(a)(2)	 	6.04
	(b)	 	2.05
	Section 318 (a)	 	10.01


 






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Senior Indenture, dated as of [__] [__],
20[__], between Capstone Turbine Corporation, a Delaware corporation (“Company”), and [__________], a [__________],
as trustee (“Trustee”).


 


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 I

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01 Definitions.


 


“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 Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.


 


“Affiliate” of any specified
person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with
such specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms
 “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through
the ownership of voting securities or by agreement or otherwise.


 


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


 


“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures
of DTC or any successor Depositary, in each case to the extent applicable to such transaction and as in effect from time to time.


 


“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee thereof.


 


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


 


“Business Day” means
any day other than a Saturday, Sunday or other day on which banking institutions are authorized or required by law, regulation
or executive order to close or be closed in the State of New York or in the city of the Corporate Trust Office.


 


“Capital Interests” means
any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, including, without
limitation, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation
that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.


 






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


 


“Company Order” means
a written order signed in the name of the Company by two Officers, and delivered to the Trustee.


 


“Company Request” means
a written request signed in the name of the Company by its Chief Executive Officer, Chief Financial Officer or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.


 


“Corporate Trust Office”
means the address of the Trustee specified in Section 10.02, or such other address as to which the Trustee may give notice
to the Holders and the Company.


 


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


 


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


 


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


 


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


 


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


 


“Foreign Government Obligations”
means, with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged
or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government the
timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either
case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof.


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of
the American Standards Board or in such other statements by such other entity as have been approved by a significant segment
of the accounting profession.


 






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“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 Depositary for such Series or its nominee, and
registered in the name of such Depositary or nominee.


 


“Holder” means a person
in whose name a Security is registered in the records of the Registrar.


 


“Indenture” means this
Indenture as amended or supplemented from time to time 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 Maturity means interest payable after Maturity.


 


“Maturity,” 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 or otherwise.


 


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


 


“Officers’ Certificate”
means a certificate signed by two Officers, and delivered to the Trustee.


 


“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.


 


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


 


“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.


 


“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office with direct responsibility for the administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.


 


“SEC” means the Securities
and Exchange Commission.


 






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


 


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


 


“Stated Maturity” means
when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.


 


“Subsidiary” means, with
respect to any person, any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof or, in the case of a partnership, more than 50% of the partners’ Capital Interests (considering
all partners’ Capital Interests as a single class), is at the time owned or controlled, directly or indirectly, by such person
or one or more of the other Subsidiaries of such person or combination thereof.


 


“TIA” means the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture and the rules and regulations
promulgated thereunder; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA”
means, to the extent required by any such amendment, the Trust Indenture Act as so 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 securities which are (i) direct obligations of The United States of America for the payment of which its full faith
and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality
of The United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The
United States of America, and which are not callable or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.


 






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Section 1.02 Other Definitions.


  


	TERM	DEFINED

IN

SECTION
	Bankruptcy Law	6.01
	Custodian	6.01
	Event of Default	6.01
	Judgment Currency	10.16
	Legal Holiday	10.07
	mandatory sinking fund payment	11.01
	Market Exchange Rate	10.15
	New York Banking Day	10.16
	optional sinking fund payment	11.01
	Paying Agent	2.04
	Registrar	2.04
	Required Currency	10.16
	Service Agent	2.04
	successor person	5.01


 


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


 


“Commission” means the
SEC.


 


“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 Company and any successor obligor upon the Securities.


 


All other terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined
herein are used herein as so defined. If any provision of this Indenture modifies or excludes any provision of the TIA that may
be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified, or to be excluded,
as the case may be.


 


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


 


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


 


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


 



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


 


(d) “or” is not exclusive;


 


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


 


(f) provisions apply to successive events
and transactions.


 


ARTICLE II

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 or determined in
the manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption of the
terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time
to time, the Board Resolution, Officers’ Certificate or supplemental indenture 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 Subsection 2.02(a) and either as to such Securities within the Series or as to the Series
generally in the case of Subsections 2.02(b) through 2.02(s)) by or pursuant to a Board Resolution, and set forth or determined
in the manner provided in a Board Resolution, supplemental indenture or an Officers’ Certificate:


 


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


 


(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 9.06);


 


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


 






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(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 Company 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 terms and conditions upon which the Securities of the Series may be redeemed, in whole
or in part, at the option of the Company;


 


(h) the obligation, if any, of the Company
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 period or periods within which, the price or prices at which and the terms and conditions upon which Securities
of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;


 


(i) the dates, if any, on which and the price
or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other
detailed terms and provisions of such repurchase obligations;


 


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


 


(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 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 Dollars or any Foreign Currency, and the agency or organization, if any, responsible for overseeing
such composite currency and the Paying Agent for such Foreign Currency Securities (which shall not be the Trustee without the consent
of the Trustee);


 


(m) the provisions, if any, relating to any
security provided for the Securities of the Series;


 


(n) 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;


 


(o) any addition to or change in the covenants
set forth in Articles IV or V which applies to Securities of the Series;


 






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(p) the provisions, if any, relating to conversion
of any Securities of such Series, including, if applicable, the securities into which the Securities are convertible, the conversion
price, the conversion period, provisions as to whether conversion will be mandatory, at the option of the Holders or at the option
of the Company, the events requiring an adjustment of the conversion price and provisions affecting conversion if such Series of
Securities are redeemed;


 


(q) whether the Securities of such Series
will be senior debt securities;


 


(r) any depositaries, interest rate calculation
agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed
herein; and


 


(s) any other terms of the Securities of the
Series (which may modify or delete any provision of this Indenture insofar as it applies to such Series), but which shall not affect
the rights, duties, obligations or immunities of the Trustee without the consent of the Trustee.


 


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 hereto or Officers’ Certificate referred to above, and, unless
otherwise provided, a Series may be reopened, without the consent of the Holders, for increases in the aggregate principal amount
of such Series and issuances of additional Securities of such Series.


 


Section 2.03 Execution and
Authentication. At least one Officer shall sign the Securities for the Company by manual or facsimile signature. If an
Officer whose signature is on a Security 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 of the Trustee shall be conclusive evidence that the Security has been authenticated
under this Indenture. At any time after the execution and delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication and the Trustee shall authenticate and deliver Securities for
original issue in the principal amount provided in a Company Order. Such Company Order may authorize authentication and
delivery pursuant to electronic instructions in PDF from the Company or its duly authorized agent or agents. 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. 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 hereto or Officers’ Certificate delivered pursuant to Section 2.02, except as provided in
Section 2.02 or 2.08. Prior to the first issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.02) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture
hereto 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, (b) an Officers’
Certificate complying with Section 10.04 relating to the issuance, authentication and delivery of the Securities and
(c) an Opinion of Counsel complying with Section 10.04 relating to the issuance, authentication and delivery of the
Securities. The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series:
(a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; (b) if the
Trustee shall determine in good faith that such action would expose the Trustee to personal liability to Holders of any then
outstanding Series of Securities; or (c) if the issuance of such Securities will affect the rights, powers, duties or
immunities of the Trustee under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. 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 Company or an Affiliate of the Company.


 






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Section 2.04 Registrar and Paying Agent.
The Company 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 Securities of such Series may be presented or surrendered for payment
(“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”) and where notices and demands to or upon the Company in respect of the Securities of such Series
and this Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to each
Series of Securities and to their transfer and exchange. The Company 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. The Company 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 Company 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 Company 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. 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 Company 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.


 


Section 2.05 Paying Agent to Hold Money
in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will
hold in trust, for the benefit of Holders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the
payment of principal of or interest on the Series of Securities, and will notify the Trustee in writing of any default by the Company
in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over
to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for
the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of Holders of any Series of Securities all money held by it as Paying Agent.


 






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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 Holders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least ten (10) days before each interest payment date and at such other
times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of
the names and addresses of Holders of each Series of Securities.


 


Section 2.07 Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange
them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange
if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Company shall execute,
and the Trustee shall authenticate and deliver the Securities at the Company’s request upon receipt of a Company Order. No
service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but
the Company may require payment of a sum sufficient to cover any tax or similar charge payable in connection therewith (other than
any such tax or similar charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.06). Neither the Company nor the Registrar
shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at
the opening of business fifteen days immediately preceding 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 (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part. All Securities issued upon any transfer or exchange of Securities shall
be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange. Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory
to the Company and the Registrar duly executed, by the Holder thereof or its attorney duly authorized in writing.


 


Section 2.08 Mutilated, Destroyed,
Lost and Stolen Securities.


 


(a) If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall, upon receipt of a Company Order, authenticate
and make available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute
and upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.


 






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(b) Upon the issuance of any new Security
under this Section, the Company may require the payment of a sum sufficient to cover any tax or other charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security
of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen 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. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.


 


Section 2.09 Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled 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. If a Security is replaced pursuant to Section 2.08,
it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser. If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the
Maturity 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. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security. 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 thereof pursuant to Section 6.02.


 


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 Company 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 a Responsible Officer of the Trustee knows are so owned shall be so
disregarded.


 


Section 2.11 Temporary
Securities. Until definitive Securities are ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Securities upon receipt of a Company Order. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and execute and the Trustee, upon receipt of a Company Order, shall
authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.


 






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Section 2.12 Cancellation. The Company
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 registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation in accordance with its customary procedures. The Company
may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.


 


Section 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest at the rate established
for the particular Series, if any, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the
persons who are Holders of the Series on a subsequent special record date. The Company shall fix the special record date and payment
date. At least ten (10) days before the special record date, the Company shall mail to the Trustee and to each Holder of the Series
a notice that states the record date, the related payment date and the amount of interest to be paid. The Company may also pay
defaulted interest in any other lawful manner.


 


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 Depositary for such Global Security or Securities.


 


(b) Transfer and Exchange. Notwithstanding
any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security shall
be exchangeable pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other than the
Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency
under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers’
Certificate stating 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 and the Depositary requests the Company to exchange the
Securities. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered
in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global
Security with like tenor and terms.


 


(c) A Global Security may not be transferred
except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such a successor Depositary.


 






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(d) 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 Depositary or a nominee of the Depositary. This Security
is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such a successor Depositary.”


 


(e) Acts of Holders. The Depositary, 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 the Indenture.


 


(f) 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.


 


(g) [Reserved].


 


(h) The Depositary or its nominee, as registered
owner of a Global Security, shall be the Holder of such Global Security for all purposes under the Indenture and the Securities,
and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly,
any such owner’s beneficial interest in a Global Security will be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee and such owners of beneficial interests in a Global
Security will not be considered the owners or holders thereof. Notwithstanding any other provision of this Indenture or any Security,
where this Indenture or any Global Security provides for notice of any event (including any notice of redemption or repurchase)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary
(or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance
with applicable Depositary procedures.


 


Section 2.15 CUSIP Numbers. The Company
in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, “CUSIP” numbers
shall be used in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption
and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of
any change in “CUSIP” numbers of which the Company becomes aware.


 






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ARTICLE III 


REDEMPTION


 


Section 3.01 Notice to Trustee. The
Company 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 Company 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 in writing of the redemption date and the principal amount of the Series of Securities to be redeemed at least 40,
and not more than 60, days before the redemption date.


 


Section 3.02 Selection of Securities
to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture 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 in any manner that the Trustee deems fair and appropriate or in accordance with the procedures of the applicable
Depositary. The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption.
Securities of a Series and portions selected for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with
respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(j), the minimum principal denomination
for each Series 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. The Trustee shall not be liable for the selection made
in accordance with this Section 3.02. For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal of such Security which has been or is to be redeemed.


 


Section 3.03 Notice of Redemption.


 


(a) At least 30 days but not more than 60
days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities
are to be redeemed. The notice shall identify the Securities of the Series to be redeemed and shall state:


 


(i) the redemption date;


 


(ii) the redemption price or the manner
of the calculation of the redemption price;


 


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


 


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


 


(v) that interest on Securities of
the Series called for redemption ceases to accrue on and after the redemption date;


 


(vi) the CUSIP number, if any; and


 






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


 


At the Company’s written request,
the Trustee shall give the notice of redemption in the Company’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 Section 3.03, Securities of a Series called for redemption
become due and payable on the redemption date and at the redemption price. 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 City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient
to pay the redemption price of and accrued 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 redeemed in part, the Company shall issue and execute and the Trustee, upon receipt of a Company
Order, shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.


 


ARTICLE IV

COVENANTS


 


Section 4.01 Payment of Principal and
Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and
punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities
and this Indenture on the due date.


 


Section 4.02 SEC Reports. The Company
shall, so long as any of the Securities are outstanding, electronically file with the Commission the annual, quarterly and other
periodic reports that the Company is required to file (or would be otherwise required to file) with the Commission pursuant to
Sections 13 and 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of any reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on an Officers’ Certificate).


 


Section 4.03 Compliance
Certificate. The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within thirty
(30) days after becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with respect thereto; provided that no notice
shall be required to the extent that the event that would constitute a Default or Event of Default has been cured or
waived.


 






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Section 4.04 Stay, Extension and Usury
Laws. The Company covenants (to the extent that it may lawfully do so) 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, extension or usury law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities and the Company
(to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law has been enacted.


 


Section 4.05 Maintenance of Office or
Agency. The Company will maintain an office or agency required under Section 2.04. The Company will give prompt written
notice to the Trustee of the location, and of any change in location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices and demands.


 


ARTICLE V

SUCCESSORS


 


Section 5.01 When Company May Merge,
Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of
its properties and assets to, another person (a “successor person”) unless:


 


(a) the Company is the surviving person or
the successor person (if other than the Company) is organized and validly existing under the laws of any U.S. domestic jurisdiction
and expressly assumes the Company’s obligations on the Securities and under this Indenture pursuant to a supplemental indenture;
and


 


(b) immediately after giving effect to the
transaction, no Default or Event of Default shall have occurred and be continuing.


 


For the avoidance of doubt, notwithstanding
the foregoing, the sale, conveyance or transfer of intellectual property and similar or related assets and the Company’s
equity ownership interests in foreign Subsidiaries to one or more of its Subsidiaries, in each case, in connection with its global
tax optimization strategies in conjunction with business operations will not be considered “all or substantially all of its
properties and assets.”


 


The Company shall deliver to the Trustee
prior to the consummation of the proposed transaction an Officers’ Certificate and an Opinion of Counsel, each stating that
the proposed transaction and any supplemental indenture comply with this Indenture.


 






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Section 5.02 Successor Person
Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.01, the successor person formed by such consolidation or into
or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such
successor person has been named as the Company herein; provided, however, that the predecessor Company in the case of a sale,
conveyance or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture
and the Securities.


 


ARTICLE VI

DEFAULTS 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:


 


(a) default in the payment of any interest
on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days; or


 


(b) default in the payment of principal of
(or premium, if any, on) any Security of that Series at its Maturity; or


 


(c) default in the performance or breach of
any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which the consequences of nonperformance
or breach are addressed elsewhere in this Section 6.01 and other than a covenant or warranty that has been included in this
Indenture solely for the benefit of a Series of Securities other than that Series), which default continues uncured for a period
of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of not less than a majority in principal amount of the outstanding Securities of that Series a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or


 


(d) the Company pursuant to or within the
meaning of any Bankruptcy Law:


 


(i) commences a voluntary case or
proceeding;


 


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


 


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


 


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


 


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


 






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


 


(i) is for relief against the Company
in an involuntary case,


 


(ii) appoints a Custodian of the Company
or for all or substantially all of its property, or


 


(iii) orders the liquidation of the
Company, and the order or decree remains un-stayed and in effect for 90 days; or


 


(f) 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(n).


 


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


 


Section 6.02 Acceleration of
Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the time
outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.01(d) or (e)), then in
every such case the Trustee or the Holders of not less than a majority in principal amount of the outstanding Securities of
that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of
the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all
of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid
interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.01(d) or (e)
shall occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding
Securities shall be immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder. At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment
or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if (a) the Company has paid and deposited with the
Trustee a sum sufficient to pay (1) all overdue instalments of interest on all Securities of that Series, (2) the
principal of (and premium, if any, on) any Securities of that Series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Securities of that Series, (3) to the extent that payment
of such interest is lawful, interest upon overdue instalments of interest at the rate borne by the Securities of that Series,
and (4) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and (b) all Events of Default with respect to Securities of that
Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which have become due
solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13. No such rescission
shall affect any subsequent Default or impair any right consequent thereon.


 






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Section 6.03 Collection of Indebtedness
and Suits for Enforcement by Trustee. The Company covenants that if:


 


(a) default is made in the payment of any
interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or


 


(b) default is made in the payment of principal
of any Security at the Maturity thereof, then the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders
of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest at the rate or
rates prescribed therefor in such Securities and, in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.


 


If the Company fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the
manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.


 


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


 


Section 6.04 Trustee May File
Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a
claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.


 






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Section 6.05 Trustee May Enforce Claims
Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted
and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment
has been recovered.


 


Section 6.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:


 


First: To the payment of all amounts due
the Trustee under Section 7.07; and


 


Second: To the payment of the amounts then
due and unpaid for principal (and premium, if any) of and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and


 


Third: To the Company.


 


Section 6.07 Limitation on Suits.
No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:


 


(a) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;


 


(b) the Holders of at least a majority in
principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;


 


(c) such Holder or Holders shall have offered
to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred
in compliance with such request;


 






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


 


(e) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding
Securities of that Series;


 


it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.


 


Section 6.08 Unconditional Right of Holders
to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and interest,
if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption,
on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.


 


Section 6.09 Restoration of Rights and
Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.


 


Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08,
no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment
of any other appropriate right or remedy.


 


Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may be.


 






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Section 6.12 Control by Holders.
Subject to Section 7.02(f), the Holders of a majority in principal amount of the outstanding Securities of any Series shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that:


 


(a) such direction shall not be in conflict
with any rule of law or with this Indenture, or be unduly prejudicial to Holders not joining therein, and


 


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


 


Section 6.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except
a Default (i) in the payment of the principal of (or premium, if any) or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from such acceleration) or (ii) in respect of a
covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each outstanding Security
of such Series affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


 


Section 6.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities
expressed in such Security (or, in the case of redemption, on the redemption date).


 


Section 6.15 Waiver of Stay or
Extension Laws. The Company covenants (to the extent it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 






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ARTICLE VII

TRUSTEE


 


Section 7.01 Duties of Trustee.


 


(a) If an Event of 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 man would exercise or use under the circumstances in the conduct of such person’s
own affairs.


 


(b) Except during the continuance of an Event
of Default:


 


(i) The Trustee need perform only
those duties that are expressly and specifically set forth in this Indenture and no others and no implied covenants or obligations
shall be read into this Indenture against the Trustee.


 


(ii) In the absence of bad faith on
its part, the Trustee may conclusively rely and is fully protected, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions 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 provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).


 


(c) 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:


 


(i) This paragraph does not limit
the effect of paragraph (b) of this Section.


 


(ii) 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.


 


(iii) The Trustee shall not be liable
with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith
in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.


 


(iv) 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 in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.


 






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(d) Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the conduct or affects the liability of or affords protection to the
Trustee is subject to paragraph (a), (b), (c) and (d) of this Section.


 


(e) The Trustee may refuse to perform any
duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity satisfactory to the
Trustee against any loss, liability or expense.


 


(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 Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.


 


(g) The rights, privileges, protections, immunities
and benefits given to the Trustee, including the right to be indemnified, are extended to, and shall be enforceable by the Trustee
in each of its capacities hereunder and to its agents. The provisions set forth in this Section 7.01 shall apply to the Trustee
in each of its capacities hereunder and its agents.


 


Section 7.02 Rights of Trustee.


 


(a) The Trustee may rely on and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, 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 or persons. The Trustee need not investigate any fact or matter stated in the document.


 


(b) Before the Trustee acts or refrains from
acting in connection with this Indenture, it may require an Officers’ Certificate. The Trustee shall not be liable for any
action it takes or omits to take in reliance on such Officers’ Certificate. Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or a Company Order and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution.


 


(c) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for the misconduct or negligence of any agent or attorney appointed with due care. No Depositary shall be deemed
an agent of the Trustee, and the Trustee shall not be responsible for any act or omission by any Depositary.


 


(d) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that
the Trustee’s conduct does not constitute negligence.


 


(e) The Trustee may consult with counsel,
and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.


 






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(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 or direction of any of the Holders of Securities
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by the Trustee in compliance with such request or direction.


 


(g) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness 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 to examine the books, records and premises
of the Company, personally or by agent or attorney.


 


(h) The Trustee shall not be deemed to have
notice of any Default or Event of Default, other than a failure by the Company to make any payment hereunder when due, unless written
notice is received by a Responsible Officer of the Trustee at the Corporate Trust Office, and such notice references the Securities
generally or the Securities of a particular Series and this Indenture and states that it is a notice of Default or Event of Default.


 


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


 


(j) In no event shall the Trustee be responsible
or liable for any special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including, but
not limited to, lost profits) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.


 


(k) Neither the Trustee nor any Agent shall
be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes;
fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage; epidemic; riots; interruptions, loss or malfunctions
of utilities, computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military
authority or governmental action; it being understood that each of the Trustee and Agents shall use commercially reasonable efforts
to resume performance as soon as reasonably practicable under the circumstances.


 


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


 


(m) The Trustee may request that the Company
deliver an Officers’ Certificate setting forth the names of the individuals and/or titles of Officers (with specimen signatures)
authorized at such times to take specific actions pursuant to this Indenture.


 


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 Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.


 






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Section 7.04 Trustee’s Disclaimer.
The recitals contained herein and in the Securities (except for the Trustee’s certificate of authentication) shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities and it shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.


 


Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if a Responsible Officer
of the Trustee has received written notice thereof, the Trustee shall mail to each Holder of the Securities of that Series notice
of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has received
written notice of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal
of or interest on any Security of any Series, the Trustee shall be protected in withholding such notice if and so long as a Responsible
Officer of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of that
Series.


 


Section 7.06 Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Holders, as their names and addresses
appear on the register kept by the Registrar, a brief report dated as of such May 15, in accordance with, and to the extent
required under, TIA Section 313. 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 Company shall promptly notify the Trustee
when Securities of any Series are listed on any stock exchange.


 


Section 7.07 Compensation and
Indemnity. The Company shall pay to the Trustee from time to time compensation for its services as the Company and the
Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee. Such expenses shall include the reasonable
compensation, expenses and disbursements of the Trustee’s agents and counsel. The Company shall indemnify each of the
Trustee and any predecessor Trustee and hold each of them harmless against any loss, liability or expense, including taxes
(other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it arising out of or in
connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. This
indemnification shall apply to officers, directors, employees, shareholders, advisors, representatives and agents of the
Trustee. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by
any officer, director, employee, shareholder, advisor, representative or agent of the Trustee through the negligence, willful
misconduct or bad faith of the Trustee. To secure the Company’s obligations in this Section, the Trustee shall have a
lien prior to the Securities of any Series on all money, funds or property held or collected by the Trustee, except that
funds held in trust to pay principal of or interest on particular Securities of that Series. When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.01(d) or (e) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any insolvency, bankruptcy or
similar law. The provisions of this Section shall survive the resignation or removal of the Trustee and the termination of
this Indenture.


 






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Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section. The Trustee may resign at any time with respect to the Securities of one
or more Series by so notifying the Company at least 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 Trustee
and the Company in writing. The Company may remove the Trustee (by written notice to the Trustee) with respect to Securities of
one or more Series if:


 


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


 


(b) the Trustee is adjudged bankrupt or insolvent
or an order for relief is entered with respect to the Trustee under any insolvency, bankruptcy or similar law;


 


(c) a custodian or public officer takes charge
of the Trustee or its property; or


 


(d) the Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed or
if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.


 


If a successor Trustee with respect to the
Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series
may petition any court of competent jurisdiction for the appointment of a successor Trustee.


 


If a successor Trustee is appointed with
respect to the Securities of one or more (but not all) Series, the Company, the predecessor Trustee and each successor Trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of
the predecessor Trustee with respect to the Securities of any Series as to which the predecessor Trustee is not retiring shall
continue to be vested in the predecessor Trustee, and shall 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, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-Trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts under separate indentures.


 


No successor Trustee with respect to any
Series of Securities shall accept appointment as provided in this Section 7.08 unless at the time of such acceptance such
successor Trustee shall be qualified under the provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 310(a) of the Trust Indenture Act of 1939.


  



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A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties
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 a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company’s obligations under Section 7.07 hereof 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 (including administration of this Indenture) to, another person, the successor person without any further act shall be
the successor Trustee. In case any Securities of any Series shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities of any Series so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities of such Series.


 


Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5) and has a
combined capital and surplus (together with its parent and Affiliates) of at least $50,000,000. The Trustee shall comply with TIA
Section 310(b).


 


Section 7.11 Preferential Collection
of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.


 


ARTICLE VIII

SATISFACTION AND DISCHARGE; DEFEASANCE


 


Section 8.01 Satisfaction and Discharge
of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this
Section 8.01), and the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when


 


(a) any of the following shall have occurred:


 


(i) no Securities have been issued
hereunder;


 


(ii) all Securities theretofore authenticated
and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered
to the Trustee for cancellation; or


 


(iii) all such
Securities not theretofore delivered to the Trustee for cancellation (1) have become due and payable, or (2) will
become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company;


 


and the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit
(in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity
or redemption date, as the case may be;


 






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(b) the Company has paid or caused to be paid
all other sums payable by the Company under this Indenture; and


 


(c) the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied with.


 


Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 7.07 and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04, 2.05, 2.07, 2.08, 8.01, 8.02 and 8.05
shall survive.


 


Section 8.02 Application of Trust Funds;
Indemnification.


 


(a) Subject to the provisions of Section 8.05,
all money deposited with the Trustee pursuant to Section 8.01, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04 and all money received by the Trustee in respect of
U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04,
shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine,
to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received
by the Trustee or analogous payments as contemplated by Sections 8.03 or 8.04; but such money need not be segregated from other
funds except to the extent required by law.


 


(b) The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.


 


(c) The Trustee shall
deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S.
Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not
authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this
Indenture.


 


(d) Notwithstanding anything to the contrary
herein, if the Trustee cannot reasonably deal with such Foreign Government Obligations, upon notification by the Trustee of such
inability, the Company shall appoint a Paying Agent with respect to such Foreign Government Obligations. The Trustee shall have
no duty to supervise, and shall in no event be liable for, the acts or omissions of such Paying Agent.


 






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Section 8.03 Legal Defeasance of Securities
of any Series. Unless this Section 8.03 is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to
Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding
Securities of any Series on the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions
of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee,
at the expense of the Company, shall, at Company Request, execute proper instruments acknowledging the same), except as to:


 


(a) the rights of Holders of Securities of
such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of (and premium,
if any) and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of
such principal or installment of principal (and premium, if any) or interest, and (ii) the benefit of any mandatory sinking
fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with
the terms of this Indenture and the Securities of such Series; and


 


(b) the provisions of Sections 2.04, 2.05,
2.07, 2.08, 8.02, 8.03 and 8.05 and Article VII; and


 


(c) the rights and immunities of the Trustee
hereunder;


 


provided that, the following conditions shall have been satisfied:


 


(i) with
reference to this Section 8.03, the Company shall have deposited or caused to be irrevocably deposited (except as
provided in Section 8.02(c)) with the Trustee as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (A) in the
case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or
(B) subject to Section 8.02(d) herein, in the case of Securities of such Series denominated in a Foreign Currency
(other than a composite currency), money and/or Foreign Government Obligations, in each case which through the payment of
interest and principal (and premium, if any) in respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of
principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the Securities of such Series
on the dates such installments of interest or principal (and premium, if any) and such sinking fund payments are due;


 






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(ii) such deposit will not result
in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;


 


(iii) no Default or Event of Default
with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;


 


(iv) the Company shall have delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (A) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling, or (B) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same
amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had
not occurred;


 


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


 


(vi) the Company shall have delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this Section have been complied with; and


 


(vii) such defeasance shall not result
in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940,
as amended, unless such trust shall be registered under such Act or exempt from registration thereunder.


 


Section 8.04
Covenant Defeasance. Unless this Section 8.04 is otherwise specified, pursuant to Section 2.02(s), to be
inapplicable to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph
(a) hereof, the Company may omit to comply with respect to the Securities of any Series with any term, provision or
condition set forth under Sections 4.02, 4.03, and 5.01 as well as any additional covenants specified in a supplemental
indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to
Section 2.02 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with
respect to such Series under Section 6.01) and the occurrence of any event specified in a supplemental indenture for
such Series of Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.02 and
designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, provided that the following conditions shall have been satisfied:


 






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(a) with reference to this Section 8.04,
the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.02(c)) with the Trustee as
trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash
in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency
(other than a composite currency), money and/or, subject to Section 8.02(d) herein, Foreign Government Obligations, in each
case which through the payment of interest and principal (and premium, if any) in respect thereof in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before
the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment
of principal (and premium, if any) of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities
of such Series on the dates such installments of interest or principal (and premium, if any) and such sinking fund payments are
due;


 


(b) such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;


 


(c) no Default or Event of Default with respect
to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending
on the 91st day after such date;


 


(d) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance
had not occurred;


 


(e) the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for
relating to the covenant defeasance contemplated by this Section have been complied with; and


 


(f) Such defeasance shall not result in the
trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be registered under such Act or exempt from registration thereunder.


 






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Section 8.05 Repayment
to Company. The Trustee and the Paying Agent shall pay to the Company, upon Company Request, any money held by them for the
payment of principal (and premium, if any) and interest that remains unclaimed for two years, and after such time, Holders entitled
to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates
another person.


 


Section 8.06 Reinstatement. If the
Trustee or the Paying Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with
Section 8.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture with respect
to the Securities of such Series and under the Securities of such Series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money
in accordance with Section 8.01; provided, however, that if the Company has made any payment of principal of, premium (if
any) or interest on any Additional Amounts with respect to any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the
Trustee or the Paying Agent; provided, however, that the Trustee shall not be responsible for monitoring or enforcing the accuracy
of sufficiency of such Additional Amounts. The Company shall provide the Trustee and Paying Agent with an Officers’ Certificate
describing any Additional Amounts to be included in any payment.


 


ARTICLE IX

AMENDMENTS AND WAIVERS


 


Section 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent
of any Holder:


 


(a) to evidence the succession of another
person to the Company under this Indenture and the Securities and the assumption by any such successor person of the obligations
of the Company hereunder and under the Securities;


 


(b) to add or remove covenants of the Company
for the benefit of the Holders of all or any Series of Securities (and if such covenants are to be for the benefit of less than
all Series of Securities, stating that such covenants are expressly being included for the benefit of such Series) or to surrender
any right or power herein conferred upon the Company provided such action does not adversely affect the interests of the Holders
(as determined by the Company);


 


(c) to add any additional Events of Default;


 


(d) to add to or change any of the provisions
of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form;


 









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(e) to add to, change or eliminate any of
the provisions of this Indenture in respect of one or more Series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any Series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to
such provision or (B) shall become effective only when there is no such Security Outstanding;


 


(f) to establish the forms or terms of the
Securities of any Series issued pursuant to the terms hereof;


 


(g) to cure any ambiguity or defect or correct
any inconsistency in this Indenture;


 


(h) 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;


 


(i) to qualify this Indenture under the Trust
Indenture Act;


 


(j) to provide for uncertificated Securities
in addition to certificated Securities; and


 


(k) to comply with the rules or regulations
of any securities exchange or automated quotation system on which any of the Securities may be listed or traded.


 


Section 9.02 With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority
in 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 or of modifying
in any manner the rights of the Holders of each such Series. Except as provided in Section 6.13, the Holders of at least a
majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series. 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 supplemental indenture or waiver,
but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly describing the
supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture or waiver.


 






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Section 9.03 Limitations. Without
the consent of each Holder affected, an amendment or waiver may not:


 





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


 


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


 


(c) 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;


 


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


 


(e) waive a Default or Event of Default in
the payment of the principal of (or premium, if any) or interest, if any, 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);


 


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


 


(g) make any change in Sections 6.08, 6.13,
or 9.03; or


 


(h) waive a redemption payment with respect
to any Security.


 


Section 9.04 Compliance with 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 TIA as then in effect.


 


Section 9.05 Revocation and Effect of
Consents. Until an amendment is set forth in a supplemental indenture or a 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 if the Trustee receives
the notice of revocation before the date of the supplemental indenture or the date the waiver becomes effective. Any amendment
or waiver once effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (h) of Section 9.03. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security.


 


Section 9.06 Notation on or Exchange
of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and execute and the Trustee shall authenticate,
upon Company Order, new Securities of that Series that reflect the amendment or waiver.


 


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 receive, in addition to the documents
required by Section 10.04, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that all conditions precedent in this Indenture to the execution of such supplemental indenture, have been complied with,
such supplemental indenture is authorized under this Indenture, and, such supplemental indenture is the valid and legally binding
obligation of the Company. The Trustee may, but shall not be obligated to, sign any supplemental indenture that affects the Trustee’s
own rights, duties, powers, liabilities or immunities under this Indenture or otherwise.


 






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ARTICLE X

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 TIA, such required or deemed provision shall control.


 


Section 10.02 Notices.


 


(a) Any notice or communication by the Company
or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person,
by overnight courier or mailed by first-class mail or sent by facsimile addressed as follows:


 


if to the Company:


 


Capstone Turbine Corporation


16640 Stagg Street


Van Nuys, California 91406


Attention:


Chief Executive Officer


 


With a copy to:


 


Katten Muchin Rosenman LLP


525 W. Monroe Street


Chicago, IL 60661


Attn: Mark D. Wood


 


if to the Trustee:


 


_____________________


_____________________


Facsimile No.: ___________


Email: ___________


 






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(b) The Company or the
Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Any
notice or communication to a Holder shall be mailed by first-class mail to its address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder 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 Holder receives it. If the
Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.


 


(c) Unless otherwise provided in this Indenture,
any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Company may,
upon Company Request received by the Trustee not fewer than ten (10) Business Days prior (or such shorter period of time as may
be acceptable to the Trustee) to the date on which such notice must be given or served, be given or served by the Trustee in the
name of and at the expense of the Company.


 


Section 10.03 Communication by Holders
with Other Holders. Holders of any Series may communicate pursuant to TIA Section 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 all Series. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).


 


Section 10.04 Section 10.04 Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:


 


(a) an Officers’ Certificate (which
shall include the statements set forth in Section 10.05 hereof) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and


 


(b) an Opinion of Counsel (which shall include
the statements set forth in Section 10.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent
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 a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:


 


(a) a statement that the person making such
certificate or opinion has read such covenant or condition and the definitions relating thereto;


 


(b) 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;


 


(c) 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; and


 





(d) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with.


 






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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. Unless
otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, a
 “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.


 


Section 10.08 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.
Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration
for the issue of the Securities.


 


Section 10.09 Counterparts. This
Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The
exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution
and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures
of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


 


Section 10.10 Governing Laws. This
Indenture and the Securities will be governed by, and construed in accordance with, the internal laws of the State of New York,
without regard to conflict of law principles that would result in the application of any law other than the laws of the State of
New York.


 


Section 10.11 No Adverse Interpretation
of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or
a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.


 


Section 10.12 Successors. All agreements
of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.


 


Section 10.13 Severability. In case
any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.


 






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Section 10.14
Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.


 


Section 10.15 Securities in a Foreign
Currency. 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, 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 10.15, “Market Exchange Rate”
shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve
Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Company shall
use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the
currency in question or such other quotations as the Company, 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 Company 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 Company, the Trustee and all Holders. The Trustee shall be fully justified and protected and shall
incur no liability in relying and acting upon information received by it from the Company and shall not otherwise have any duty
or obligation to determine the accuracy or validity of such information independent of the Company. Notwithstanding anything to
the contrary herein, if the Trustee cannot reasonably process a payment in a Foreign Currency, upon notification by the Trustee
of such inability, the Company shall appoint a Paying Agent for such payment in Foreign Currency. The Trustee shall have no duty
to supervise, and shall in no event be liable for, the acts or omissions of such Paying Agent.


 


Section 10.16
Judgment Currency. The Company 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 Company could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final un-appealable 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 Company could purchase in The City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final un-appealable 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 subsection (a)), 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 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 on which banking institutions are authorized or required by law, regulation or executive order to close.


 






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Section 10.17 U.S.A. Patriot Act.
The Company acknowledges that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions,
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The Company agrees
that it will provide the Trustee with such information as it may reasonably request as required in order for the Trustee to satisfy
the requirements of the U.S.A. Patriot Act.


 


Section 10.18 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE COMPANY AND THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE
OR THE SECURITIES.


 


ARTICLE XI

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 Company 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 Company or redeemed either at
the election of the Company 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 and 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.


 






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Section 11.03 Redemption of Securities
for Sinking Fund. Not less than 45 days prior to each sinking fund payment date for any Series of Securities, the Company 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 Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated
in the Board Resolution, Officers’ Certificate or supplemental indenture 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 Company 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. Prior to any sinking fund payment
date, the Company shall pay to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust) in cash a sum equal to any interest that will accrue to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this Section.


 


[Remainder of page intentionally left
blank]


 






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IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed and attested, all as of the day and year first above written.


 


	 	CAPSTONE TURBINE CORPORATION
	 	 
	 	By:  	              
	 	Name:
	 	Title:
	 	 
	 	[________________________________________________],
	 	as Trustee
	 	 
	 	By: 	                                                             
	 	Name:
	 	Title:
	 	 
	 	 


 


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