exv4w6






Exhibit 4.6



 





EVERGREEN SOLAR, INC.




as Issuer



the Guarantors from time to time party hereto



AND



U.S. BANK NATIONAL ASSOCIATION



as Trustee



 





INDENTURE



Dated as of [•], 2011



 





7.5% Convertible Senior Secured Notes due 2017



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Trust Indenture Act Provisions
	 	 	21	 
	Section 1.03 Compliance Certificates and Opinions
	 	 	21	 
	Section 1.04 Acts of Holders; Record Dates
	 	 	22	 
	Section 1.05 Notices, Etc., to Trustee and Company
	 	 	23	 
	Section 1.06 Notice to Holders; Waiver
	 	 	23	 
	Section 1.07 Benefits of Indenture
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 2 SECURITY FORMS
	 	 	24	 
	 
	 	 	 	 
	Section 2.01 Forms Generally
	 	 	24	 
	Section 2.02 Form of Face of Security
	 	 	24	 
	Section 2.03 Form of Reverse of Security
	 	 	26	 
	Section 2.04 Form of Trustee’s Certificate of Authentication
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 3 THE SECURITIES
	 	 	34	 
	 
	 	 	 	 
	Section 3.01 Title and Terms; Payments
	 	 	34	 
	Section 3.02 Ranking
	 	 	35	 
	Section 3.03 Denominations
	 	 	35	 
	Section 3.04 Execution, Authentication, Delivery and Dating
	 	 	35	 
	Section 3.05 Temporary Securities
	 	 	35	 
	Section 3.06 Registration; Registration of Transfer and Exchange
	 	 	36	 
	Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	37 	 
	Section 3.08 Persons Deemed Owners
	 	 	37	 
	Section 3.09 Book-Entry Provisions for Global Securities
	 	 	38	 
	Section 3.10 Cancellation and Transfer Provisions
	 	 	39	 
	Section 3.11 CUSIP Numbers
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 4 PARTICULAR COVENANTS
	 	 	40	 
	 
	 	 	 	 
	Section 4.01 Payment of Principal and Interest
	 	 	40	 
	Section 4.02 Maintenance of Office or Agency
	 	 	40	 
	Section 4.03 Appointments to Fill Vacancies in Trustee’s Office
	 	 	40	 
	Section 4.04 Provisions as to Paying Agent
	 	 	40	 
	Section 4.05 Existence
	 	 	42	 
	Section 4.06 Maintenance of Properties
	 	 	42	 
	Section 4.07 Payment of Taxes and Other Claims
	 	 	42	 
	Section 4.08 [Intentionally Omitted]
	 	 	42	 
	Section 4.09 [Intentionally Omitted]
	 	 	42	 
	Section 4.10 Commission Filings and Reports
	 	 	42	 
	Section 4.11 Book-Entry System
	 	 	43	 
	Section 4.12 Additional Interest
	 	 	43	 
	Section 4.13 Stay; Extension and Usury Laws
	 	 	43	 






-i-









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.14 Compliance Certificate
	 	 	43	 
	Section 4.15 Limitation on Debt and Disqualified or Preferred Stock
	 	 	43	 
	Section 4.16 Limitation on Liens
	 	 	47	 
	Section 4.17 Limitation on Asset Sales
	 	 	47	 
	Section 4.18 Limitation on Investments and Restricted Payments
	 	 	48	 
	Section 4.19 Additional Note Guaranties; Maintenance of Guarantors
	 	 	50	 
	Section 4.20 Payments for Consent
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 5 PURCHASE AT OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE
	 	 	50	 
	 
	 	 	 	 
	Section 5.01 Purchase at Option of Holders upon a Fundamental Change
	 	 	50	 
	Section 5.02 Fundamental Change Notice
	 	 	52	 
	Section 5.03 Effect of Fundamental Change Purchase Notice; Withdrawal
	 	 	53	 
	Section 5.04 Deposit of Fundamental Change Purchase Price
	 	 	54	 
	Section 5.05 Securities Purchased in Whole or in Part
	 	 	54	 
	Section 5.06 Repayment to the Company
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 6 CONVERSION
	 	 	55	 
	 
	 	 	 	 
	Section 6.01 Right to Convert
	 	 	55	 
	Section 6.02 Conversion Procedure
	 	 	55	 
	Section 6.03 Settlement upon Conversion
	 	 	57	 
	Section 6.04 Adjustment of Conversion Rate
	 	 	58	 
	Section 6.05 Effect of Reclassification, Consolidation, Merger or Sale
	 	 	66	 
	Section 6.06 Adjustments of Prices
	 	 	67	 
	Section 6.07 Coupon Make Whole Payment in Connection with a Voluntary Conversion
	 	 	67	 
	Section 6.08 Taxes on Shares Issued
	 	 	68	 
	Section 6.09 Conversion at the Option of the Company
	 	 	69	 
	Section 6.10 Coupon Make Whole Payment in Connection with Conversion at the Option
of the Company
	 	 	71	 
	Section 6.11 Reservation of Shares; Shares to be Fully Paid; Compliance with
Governmental Requirements
	 	 	72	 
	Section 6.12 Responsibility of Trustee
	 	 	73	 
	Section 6.13 Notice to Holders Prior to Certain Actions
	 	 	73	 
	Section 6.14 Stockholder Rights Plan
	 	 	74	 
	Section 6.15 Company Determination Final
	 	 	75	 
	Section 6.16 Limitations on Conversion
	 	 	75	 
	 
	 	 	 	 
	ARTICLE 7 REDEMPTION
	 	 	76	 
	 
	 	 	 	 
	Section 7.01 Optional Redemption
	 	 	76	 
	Section 7.02 Selection of Securities to be Redeemed
	 	 	76	 
	Section 7.03 Delivery of Redemption Notice
	 	 	77	 
	Section 7.04 Redemption Notice
	 	 	77	 
	Section 7.05 Effect of Redemption Notice
	 	 	78	 
	Section 7.06 Deposit of Redemption Price
	 	 	78	 
	Section 7.07 Securities Redeemed in Whole or in Part
	 	 	78	 






-ii-









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 8 NOTE GUARANTIES
	 	 	79	 
	 
	 	 	 	 
	Section 8.01 The Guarantees
	 	 	79	 
	Section 8.02 Guarantee Unconditional
	 	 	79	 
	Section 8.03 Discharge; Reinstatement
	 	 	79	 
	Section 8.04 Waiver by the Guarantors
	 	 	80	 
	Section 8.05 Subrogation and Contribution
	 	 	80	 
	Section 8.06 Stay of Acceleration
	 	 	80	 
	Section 8.07 Limits of Guarantees
	 	 	80	 
	Section 8.08 Execution and Delivery of Note Guaranty
	 	 	80	 
	Section 8.09 Release of Note Guaranty
	 	 	80	 
	 
	 	 	 	 
	ARTICLE 9 SECURITY INTEREST
	 	 	81	 
	 
	 	 	 	 
	Section 9.01 Grant of Security Interest
	 	 	81	 
	Section 9.02 Release of Security Interest
	 	 	82	 
	Section 9.03 Documents to be Delivered Prior to Release of Security Interest
	 	 	83	 
	Section 9.04 Pledge of Additional Collateral
	 	 	84	 
	Section 9.05 Collateral Agent
	 	 	84	 
	 
	 	 	 	 
	ARTICLE 10 EVENTS OF DEFAULT; REMEDIES
	 	 	84	 
	 
	 	 	 	 
	Section 10.01 Events of Default
	 	 	84	 
	Section 10.02 Acceleration of Maturity; Waiver of Past Defaults and Rescission
	 	 	87	 
	Section 10.03 Additional Interest
	 	 	87	 
	Section 10.04 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	88	 
	Section 10.05 Trustee May File Proofs of Claim
	 	 	89	 
	Section 10.06 Application of Money Collected
	 	 	89	 
	Section 10.07 Limitation on Suits
	 	 	89	 
	Section 10.08 Unconditional Right of Holders to Receive Payment
	 	 	90	 
	Section 10.09 Restoration of Rights and Remedies
	 	 	90	 
	Section 10.10 Rights and Remedies Cumulative
	 	 	90	 
	Section 10.11 Delay or Omission Not Waiver
	 	 	90	 
	Section 10.12 Control by Holders
	 	 	91	 
	Section 10.13 Undertaking for Costs
	 	 	91	 
	Section 10.14 Waiver of Stay or Extension Laws
	 	 	91	 
	 
	 	 	 	 
	ARTICLE 11 MERGER, CONSOLIDATION OR SALE OF ASSETS
	 	 	91	 
	 
	 	 	 	 
	Section 11.01 Company May Consolidate, Etc., Only on Certain Terms
	 	 	91	 
	Section 11.02 Successor Substituted for Company
	 	 	92	 
	Section 11.03 Guarantors May Consolidate, Etc., Only on Certain Terms
	 	 	92	 
	Section 11.04 Successor Substituted for Guarantor
	 	 	93	 
	 
	 	 	 	 
	ARTICLE 12 THE TRUSTEE
	 	 	93	 
	 
	 	 	 	 
	Section 12.01 Duties and Responsibilities of Trustee
	 	 	93	 
	Section 12.02 Notice of Defaults
	 	 	94	 
	Section 12.03 Reliance on Documents, Opinions, Etc
	 	 	94	 
	Section 12.04 No Responsibility for Recitals, Etc
	 	 	96	 
	Section 12.05 Trustee, Paying Agents, Conversion Agents or Registrar May Own
Securities
	 	 	96	 






-iii-









 






	 	 	 	 	 
	 	 	Page	 
	Section 12.06 Monies to be Held in Trust
	 	 	96	 
	Section 12.07 Compensation and Expenses of Trustee
	 	 	96	 
	Section 12.08 Officers’ Certificate as Evidence
	 	 	97	 
	Section 12.09 Conflicting Interests of Trustee
	 	 	97	 
	Section 12.10 Eligibility of Trustee
	 	 	97	 
	Section 12.11 Resignation or Removal of Trustee
	 	 	97	 
	Section 12.12 Acceptance by Successor Trustee
	 	 	98	 
	Section 12.13 Succession by Merger, Etc
	 	 	99	 
	Section 12.14 Preferential Collection of Claims
	 	 	100	 
	Section 12.15 Trustee’s Application for Instructions from the Company
	 	 	100	 
	 
	 	 		 
	ARTICLE 13 HOLDERS’ LISTS AND REPORTS BY TRUSTEE
	 	 	100	 
	 
	 	 	 	 
	Section 13.01 Company to Furnish Trustee Names and Addresses of Holders
	 	 	100	 
	Section 13.02 Preservation of Information; Communications to Holders
	 	 	100	 
	Section 13.03 Reports By Trustee
	 	 	101	 
	Section 13.04 Reports by Company
	 	 	101	 
	 
	 	 	 	 
	ARTICLE 14 SATISFACTION AND DISCHARGE
	 	 	101	 
	 
	 	 	 	 
	Section 14.01 Discharge of Indenture
	 	 	101	 
	Section 14.02 Deposited Monies to be Held in Trust by Trustee
	 	 	102	 
	Section 14.03 Paying Agent to Repay Monies Held
	 	 	102	 
	Section 14.04 Return of Unclaimed Monies
	 	 	102	 
	Section 14.05 Reinstatement
	 	 	102	 
	 
	 	 	 	 
	ARTICLE 15 MODIFICATION AND AMENDMENT
	 	 	103	 
	 
	 	 	 	 
	Section 15.01 Without Consent of Holders
	 	 	103	 
	Section 15.02 With Consent of Holders
	 	 	104	 
	Section 15.03 Execution of Supplemental Indentures
	 	 	105	 
	Section 15.04 Effect of Supplemental Indentures
	 	 	105	 
	Section 15.05 Conformity with Trust Indenture Act
	 	 	105	 
	Section 15.06 Reference in Securities to Supplemental Indentures
	 	 	105	 
	Section 15.07 Notice to Holders of Supplemental Indentures
	 	 	106	 
	 
	 	 	 	 
	ARTICLE 16 MISCELLANEOUS
	 	 	106	 
	 
	 	 		 
	Section 16.01 Trust Indenture Act Controls
	 	 	106	 
	Section 16.02 Notices
	 	 	106	 
	Section 16.03 Communication by Holders with other Holders
	 	 	107	 
	Section 16.04 Certificate and Opinion as to Conditions Precedent
	 	 	107	 
	Section 16.05 When Securities Are Disregarded
	 	 	108	 
	Section 16.06 Rules by Trustee, Paying Agent and Registrar
	 	 	108	 
	Section 16.07 Legal Holidays
	 	 	108	 
	Section 16.08 Governing Law
	 	 	108	 
	Section 16.09 No Recourse against Others
	 	 	108	 
	Section 16.10 Successors
	 	 	108	 
	Section 16.11 Multiple Originals
	 	 	108	 
	Section 16.12 Table of Contents; Headings
	 	 	108	 
	Section 16.13 Severability Clause
	 	 	108	 






-iv-









 






	 	 	 	 	 
	 	 	Page	 
	Section 16.14 Calculations
	 	 	109	 
	Section 16.15 Waiver of Jury Trial
	 	 	109	 
	Section 16.16 Consent to Jurisdiction
	 	 	109	 
	Section 16.17 Force Majeure
	 	 	109	 






EXHIBIT A — FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE

EXHIBIT B — FORM OF SUBORDINATION PROVISIONS

EXHIBIT C — FORM OF SUPPLEMENTAL INDENTURE




-v-









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 
	TRUST INDENTURE ACT
	 	INDENTURE
	SECTION
	 	SECTION
	Section	 	310(a)(1)
	 	12.10
	 	 	(a)(2)
	 	12.10
	 	 	(a)(3)
	 	N.A.**
	 	 	(a)(4)
	 	N.A.
	 	 	(a)(5)
	 	12.10
	 	 	(b)
	 	12.09
	Section	 	311(a)
	 	12.14
	 	 	(b)
	 	12.14
	Section	 	312(a)
	 	13.01; 13.02(a)
	 	 	(b)
	 	13.02(b)
	 	 	(c)
	 	13.02(c)
	Section	 	313(a)
	 	13.03
	 	 	(b)(1)
	 	N.A.
	 	 	(b)(2)
	 	13.03
	 	 	(c)
	 	1.06; 12.02;
	 	 	 
	 	13.03; 16.02
	 	 	(d)
	 	13.03
	Section	 	314(a)
	 	1.06; 4.10;
	 	 	 
	 	4.14; 13.04;
	 	 	 
	 	16.02
	 	 	(b)
	 	N.A.
	 	 	(c)(1)
	 	16.04(a)
	 	 	(c)(2)
	 	16.04(b)
	 	 	(c)(3)
	 	N.A.
	 	 	(d)
	 	N.A.
	 	 	(e)
	 	1.03
	 	 	(f)
	 	N.A.
	Section	 	315(a)
	 	12.01(b);
	 	 	 
	 	12.03(a)
	 	 	(b)
	 	1.06; 12.02;
	 	 	 
	 	13.03; 16.02
	 	 	(c)
	 	12.01(a)
	 	 	(d)
	 	12.01(b)
	 	 	(e)
	 	10.13
	Section	 	316(a)(last sentence)
	 	16.05
	 	 	(a)(1)(A)
	 	10.12
	 	 	(a)(1)(B)
	 	10.02(b)
	 	 	(a)(2)
	 	N.A.






 




			
	*	 	This Cross-Reference Table shall not, for any purpose, be
deemed a part of this Indenture.
	 
	**	 	N.A. means Not Applicable.




 









 






	 	 	 	 	 
	TRUST INDENTURE ACT
	 	INDENTURE
	SECTION
	 	SECTION
	 	 	(b)
	 	10.08
	 	 	(c)
	 	1.04(c)
	Section	 	317(a)(1)
	 	10.04
	 	 	(a)(2)
	 	10.05
	 	 	(b)
	 	4.04; 12.06








-ii-









 





     INDENTURE, dated as of [•], 2011, by and among Evergreen Solar, Inc., a Delaware
corporation, as Issuer (the “Company”), the guarantors from time to time party hereto (each, a
“Guarantor”), and U.S. Bank National Association, a national banking association, as trustee (the
“Trustee”).



RECITALS OF THE COMPANY




     WHEREAS, the Company has duly authorized the creation of an issue of 7.5% Convertible Senior
Secured Notes due 2017 in an aggregate principal amount of $[•]1 (herein called the
“Securities”) of the tenor and amount hereinafter set forth, and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Indenture; and



     WHEREAS, all acts and things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the valid and legally
binding obligations of the Company, and to make this Indenture a valid and legally binding
agreement of the Company, in accordance with the terms of the Securities and the Indenture, have
been done and performed, and the issue hereunder of the Securities has in all respects been duly
authorized.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed, for the benefit of the
Company and the equal and proportionate benefit of all Holders of the Securities, as follows:



ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 1.01 Definitions. For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:



               (i) the terms defined in this Article 1 have the meanings assigned to them in this Article 1
and include the plural as well as the singular;



               (ii) all other terms used herein that are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;



               (iii) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP; and



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





 




			
	1	 	To be determined by 2015 Notes exchange offer.





 









 





     “2013 Notes” means the Company’s 4% Senior Convertible Notes due 2013.



     “2015 Notes” means the Company’s 13% Convertible Senior Secured Notes due 2015.



     [“2015 Notes Release Event” means either (i) receipt by the Collateral
Agent of written notice from the 2015 Notes trustee under the 2015 Notes indenture that the
obligations under the 2015 Notes and the 2015 Notes indenture have been paid in full pursuant to
the provisions of Article 14 of the 2015 Notes Indenture or (ii) receipt by the Collateral
Agent of written notice from the 2015 Notes trustee under the 2015 Notes indenture that holders of
at least 75% of principal amount of 2015 Notes then outstanding have consented to the release of
all or substantially all of the Collateral.] 2



     “2020 Notes” means the Company’s 4% Convertible Subordinated Additional Cash Notes due 2020.



     “Act” when used with respect to any Holder, has the meaning specified in Section 1.04(a).



     “Acquired Debt” means Debt of a Person existing at the time the Person merges with or into or
becomes a Subsidiary and not Incurred in connection with, or in contemplation of, the Person
merging with or into or becoming a Subsidiary.



     “Additional Assets” means any long-term assets or other assets or inventory that are used or
useful in a Permitted Business.



     “Additional Interest” means all amounts, if any, payable pursuant to Section 10.03 hereof.



     “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” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



     “Agent Members” has the meaning specified in Section 3.09(a).



     “Applicable Conversion Price” means the Conversion Price in effect at any given time.



     “Applicable Conversion Rate” means the Conversion Rate in effect at any given time.



     “Board of Directors” means, with respect to any Person, either the board of directors of such
Person or any duly authorized committee of that board; provided that, with respect to clause (2) of
the definition of Change in Control, “Board of Directors” means the board of directors of the
Company.





 




			
	2	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.





-2-









 





     “Board Resolution” means, with respect to any Person, a copy of a resolution certified by the
secretary or an assistant secretary or the general counsel of such Person to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such certification, and
delivered to the Trustee.



     “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks
in The City of New York are authorized or required by law to close or be closed.



     “Capital Lease” means, with respect to any Person, any lease of any property which, in
conformity with GAAP, is required to be capitalized on the balance sheet of such Person.



     “Capital Stock” means, with respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however designated, whether
voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the
profits and losses, and a distribution of assets, after liabilities, of such Person.



     “cash” means such coin or currency of the United States as at any time of payment is legal
tender for the payment of public and private debts.



     “Cash Equivalents” means



     (1) United States dollars, or money in other currencies,



     (2) U.S. Government Obligations, or certificates representing an ownership interest in U.S.
Government Obligations, with maturities not exceeding one year from the date of acquisition,



     (3) (i) demand deposits, (ii) time deposits and certificates of deposit with maturities of one
year or less from the date of acquisition, (iii) bankers’ acceptances with maturities not exceeding
one year from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank
or trust company organized or licensed under the laws of the United States of America or any state
thereof having capital, surplus and undivided profits in excess of $500 million whose short-term
debt is rated “A-2” (or the then equivalent grade) or higher by S&P or “P-2” (or the then
equivalent grade) or higher by Moody’s,



     (4) repurchase obligations with a term of not more than seven days for underlying securities
of the type described in clauses (2) and (3) above entered into with any financial institution
meeting the qualifications specified in clause (3) above,



     (5) commercial paper rated at least P-1 (or the then equivalent grade) by Moody’s or A-1 (or
the then equivalent grade) by S&P and maturing within 270 days after the date of acquisition,



     (6) money market funds at least 95% of the assets of which consist of investments of the type
described in clauses (1) through (5) above and (7) below;



     (7) substantially similar investments, of comparable credit quality, denominated in the
currency of any jurisdiction in which the Company or any of its Subsidiaries conducts business; and



-3-









 





     (8) except for purposes of clause (f) of Section 4.17, investments made in accordance with the
investment policy having the objective of capital preservation approved by the Company’s Board of
Directors from time to time.



     “Change in Control” means the occurrence of any of the following events at any time after the
Securities are originally issued:



     (1) the consummation of any transaction the result of which is that any “person” or “group” of
related “persons” is or becomes the “beneficial owner” of more than 50% of the voting power of the
Company’s Capital Stock entitled to vote generally in the election of the Company’s Board of
Directors (or comparable body), other than solely by virtue of ownership of the Securities, the
2013 Notes, the 2015 Notes and the 2020 Notes; or



     (2) the first day on which a majority of the members of the Company’s Board of Directors (or
comparable body) are not Continuing Directors (or comparable persons if the Company is not a
corporation on the date of determination); or



     (3) the consolidation or merger of the Company with or into any other Person, or the sale,
lease, transfer, conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the Company’s assets and those of the Company’s Subsidiaries taken as a
whole to any “person,” other than:



          (a) in any transaction:




               (i) that does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of the Company’s Capital Stock; and



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



          (b) any consolidation, merger or sale, lease, conveyance or other disposition to any Person
the primary purpose of which is to effect the Company’s redomiciling; or




     (4) the Company’s stockholders approve a plan relating to the liquidation or dissolution of
the Company.



     For purposes of this definition, (i) “beneficial owner” is used as defined in Rules 13d-3 and
13d-5 under the Exchange Act, (ii) “group” has the meaning it has in Sections 13(d) and 14(d) of
the Exchange Act and (iii) “person” is used with the same meaning as that used within Rule 13d-3
under the Exchange Act.



     However, in the case of a consolidation or merger, a Change in Control will be deemed not to
have occurred if at least 90% of the consideration for the Common Stock in the transaction or



-4-









 




transactions (other than cash payments for fractional shares of Common Stock and cash payments
made in respect of dissenters’ appraisal rights) which otherwise would constitute a Change of
Control under clause (3) of this definition of Change in Control consists of common stock or
certificates representing common equity interests traded or to be traded immediately following such
transaction on a U.S. national securities exchange, and, as a result of the transaction or
transactions, the Securities become convertible solely into such common stock or certificates
representing common equity interests (and any rights attached thereto) and other applicable
consideration pursuant to Section 6.05.




     “Close of Business” means 5:00 p.m., New York City time.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Collateral” has the meaning assigned to it in Section 2.1 of the Security Agreement.



     “Collateral Agent” means U.S. Bank National Association and its successors and assigns.



     “Collateral Documents” means (i) the Security Agreement, and (ii) all other security
agreements, pledge agreements, collateral assignments and other security documents or other grants
or transfers for security or agreements related thereto creating or perfecting (or purporting to
create or perfect) a Lien in any assets of any Person to secure the Secured Obligations, or under
which rights or remedies with respect to such Liens are governed (including the Collateral Trust
Agreement), as each may be amended, restated, supplemented or otherwise modified from time to time.



     [“Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of the Issue
Date, among the Company, the Subsidiaries of the Company party thereto, the Trustee and U.S. Bank
National Association, as collateral agent, as amended, restated, supplemented or otherwise modified
from time to time.] 3



     [“Collateral Trust Agreement” means the Amended and Restated Collateral Trust Agreement, dated
as of the Issue Date, among the Company, the Subsidiaries of the Company party thereto, the
Trustee, the 2015 Notes trustee and U.S. Bank National Association, as collateral agent, as
amended, restated, supplemented or otherwise modified from time to time.] 4



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument





 




			
	3	 	This portion is to be included only if the Company
accepts at least 75% of 2015 Notes in exchange offer.
	 
	4	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.





-5-









 




such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.




     “Common Stock” means the common stock, $0.01 par value, of the Company as it exists on the
date of this Indenture or any other shares of Capital Stock of the Company into which the Common
Stock shall be reclassified or changed or, in the event of a merger, consolidation or other similar
transaction involving the Company that is otherwise permitted hereunder in which the Company is not
the surviving corporation, the common stock, common equity interests or depositary shares or other
certificates representing common equity interests of such surviving corporation or its direct or
indirect parent corporation.



     “Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Conversion Notice” has the meaning specified in Section 6.09(b).



     “Company Order” means a written order signed in the name of the Company (a) by its chairman of
the Board of Directors, its vice chairman of the Board of Directors, its chief executive officer,
its president, or any of its vice presidents, and (b) by its principal financial officer, its
treasurer, any assistant treasurer, its secretary, or any assistant secretary, and delivered to the
Trustee.



     “Company Website” means, as of any date of determination, the principal website maintained by
the Company on the Internet, which is located at http://www.evergreensolar.com as of the date
hereof.



     “Continuing Director” means, as of any date of determination, any member of the Company’s
Board of Directors (or comparable body) who:



     (1) was a member of the Company’s Board of Directors on the date of this Indenture; or



     (2) was nominated for election or elected to the Company’s Board of Directors (or comparable
body) with the approval of a majority of the Continuing Directors (or comparable persons if the
Company is not a corporation on the date of determination) who were members of the Company’s Board
of Directors (or comparable body) at the time of the nomination or election of such new director
(or comparable person if the Company is not a corporation on the date of determination).



     “Conversion Agent” means the Trustee or such other office or agency designated by the Company
where Securities may be presented for conversion.



     “Conversion Date” has the meaning specified in Section 6.02(b).



     “Conversion Notice” has the meaning specified in Section 6.02(b)(i).



     “Conversion Price” means, per share of Common Stock, $1,000 divided by the Applicable
Conversion Rate, rounded to the nearest cent, subject to adjustment as set forth herein.



-6-









 





     “Conversion Rate” means initially 250 shares of Common Stock per $1,000 principal amount of
Securities, subject to adjustment as set forth herein.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, at the
date as of this Indenture, located at 633 West 5th Street, 24th Floor, Los Angeles, California
90071, Attention: Corporate Trust Services (Evergreen Solar, Inc., 7.5% Convertible Senior Secured
Notes due 2017).



     “Coupon Make Whole Payment” has the meaning specified in Section 6.07(a).



     “Custodian” means U.S. Bank National Association, as custodian with respect to the Securities
in global form, or any successor entity.



     “Debt” means, with respect to any Person, without duplication,



     (1) all indebtedness of such Person for borrowed money;



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



     (3) all obligations of such Person in respect of letters of credit, bankers’ acceptances or
other similar instruments, excluding obligations in respect of trade letters of credit, bankers’
acceptances or similar instruments issued in respect of trade payables to the extent not drawn upon
or presented, or, if drawn upon or presented, the resulting obligation of the Person is paid within
10 Business Days;



     (4) all obligations of such Person to pay the deferred and unpaid purchase price of property
or services which are recorded as liabilities under GAAP, excluding accounts payable arising in the
ordinary course of business;



     (5) all obligations of such Person as lessee under Capital Leases;



     (6) all Debt of other Persons Guaranteed by such Person to the extent so Guaranteed;



     (7) all Debt of other Persons secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person; and



     (8) all obligations of such Person under Hedging Agreements,


if and only to the extent, the items (other than letters of credit and obligations referred to in
clauses (5), (6), (7) and (8) above) would appear as a liability on a balance sheet in accordance
with GAAP.




     The amount of Debt of any Person will be deemed to be:



     (A) with respect to contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation;



-7-









 





     (B) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the
obligation, contingent or otherwise, of such Person, the lesser of (x) the Fair Market Value of
such asset on the date the Lien attached and (y) the amount of such Debt;



     (C) with respect to any Debt issued with original issue discount, the face amount of such Debt
less the remaining unamortized portion of the original issue discount of such Debt;



     (D) with respect to any Hedging Agreement, the net amount payable if such Hedging Agreement
terminated at that time due to default by such Person;



     (E) with respect to any Capital Lease, the amount of the liability in respect of such Capital
Lease that would at the time be required to be capitalized on a balance sheet prepared in
accordance with GAAP; and



     (F) otherwise, the outstanding principal amount thereof.


In no event shall the term “Debt” include (a) any indebtedness under any overdraft or cash
management facilities so long as any such indebtedness is repaid in full no later than 10 Business
Days following the date on which it was incurred or in the case of such indebtedness in respect of
credit or purchase cards, within 60 days of its incurrence, (b) obligations in respect of
performance, appeal or other surety bonds or completion guarantees incurred in the ordinary course
of business and not as a part of a financing transaction, (c) any liability for Federal, state,
local or other taxes not more than 30 days past due, (d) any balances that constitute accrued
expenses, accounts payable or trade payables in the ordinary course of business, (e) any
obligations in respect of a lease properly classified as an operating lease in accordance with GAAP
or (f) any customer deposits or advance payments received in the ordinary course of business.




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



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



     “Disqualified Equity Interests” means Equity Interests that by their terms or upon the
happening of any event are



     (a) required to be redeemed or redeemable at the option of the holder prior to the Stated
Maturity of the Securities for consideration other than Qualified Equity Interests, or



     (b) convertible at the option of the holder into Disqualified Equity Interests or exchangeable
for Debt;


provided that Equity Interests will not constitute Disqualified Equity Interests solely because of
provisions giving holders thereof the right to require repurchase or redemption upon an “asset
sale” or “change in control” occurring prior to the Stated Maturity of the Securities if those
provisions specifically state that repurchase or redemption pursuant thereto will not be required
prior to the Company’s repayment in full of the Securities and other Secured Obligations.




-8-









 





     “Disqualified Stock” means Capital Stock constituting Disqualified Equity Interests.



     “Domestic Subsidiary” means any Subsidiary formed under the laws of the United States of
America or any jurisdiction thereof.



     “DTC” means The Depository Trust Company.



     “Equity Interests” means all Capital Stock and all warrants or options with respect to, or
other rights to purchase, Capital Stock, but excluding Debt convertible into equity.



     “Event of Default” has the meaning specified in Section 10.01.



     [“Excluded Obligations” means all obligations of the Company and the Guarantors to pay any
Coupon Make Whole Payments in respect of the Securities upon their conversion pursuant to the
Indenture in cash.]5



     “Excluded Subsidiary” means (1) any Immaterial Subsidiary and (2) any Subsidiary of a Foreign
Subsidiary.



     “Ex-Dividend Date” means, for the purposes of Section 6.04, the first date on which the Common
Stock trades on the applicable exchange or in the applicable market, regular way, without the right
to receive the relevant distribution, dividend or issuance.



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



     “Expiration Date” has the meaning specified in Section 6.04(f).



     “Expiration Time” has the meaning specified in Section 6.04(f).



     “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party determined in
good faith by the Board of Directors of the Company (unless otherwise provided in this Indenture),
provided that with respect to any such price less than $5,000,000, only the good faith
determination of the Company’s chief executive officer or chief financial officer will be required.



     “Foreign Subsidiary” means any Subsidiary that is not organized under the laws of the United
States of America or any state thereof or the District of Columbia.



     “Fundamental Change” means a Change in Control or a Termination of Trading.



     “Fundamental Change Notice” has the meaning specified in Section 5.01(b).



     “Fundamental Change Purchase Date” has the meaning specified in Section 5.01(a).





 




			
	5	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.





-9-









 





     “Fundamental Change Purchase Notice” has the meaning specified in Section 5.01(c)(i).



     “Fundamental Change Purchase Price” has the meaning specified in Section 5.01(a).



     “Fundamental Change Purchase Right” has the meaning specified in Section 5.01(a).



     “GAAP” means generally accepted accounting principles in the United States of America, which
are in effect from time to time. Except as otherwise specifically provided for herein, all
calculations made for purposes of determining compliance with the terms of the provisions of this
Indenture shall utilize GAAP as in effect on the date of such determination.



     “Global Security” means a Security in global form registered in the Security Register in the
name of a Depositary or a nominee thereof.



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



     “Guarantor” means (i) each Wholly Owned Domestic Subsidiary that Guarantees the Securities on
the Issue Date and (ii) each other Wholly Owned Domestic Subsidiary that executes a supplemental
indenture providing for the guaranty of the payment of the Securities, or any successor obligor
under its Note Guaranty pursuant to Section 11.04, in each case unless and until such Guarantor is
released from its Note Guaranty pursuant to this Indenture.



     “Hedging Agreement” means (i) any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement or other agreement designed to manage fluctuations in interest rates
or (ii) any foreign exchange forward contract, currency swap agreement, currency option or other
agreement designed to manage fluctuations in foreign exchange rates or (iii) any commodity or raw
material futures contract, commodity option agreement, commodity swap agreement or any other
agreement designed to manage fluctuations in commodity raw material (as defined under the Commodity
Exchange Act) prices.



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



     “Immaterial Subsidiary” means any Subsidiary that (i) has not Guaranteed any other Debt of the
Company or any of its Subsidiaries and (ii) together with its Subsidiaries, has total assets
(determined in accordance with GAAP but excluding any intercompany receivables from the Company or
a Guarantor) of less than $2,500,000, in each case as of the as last day of the fiscal quarter most
recently ended.



     “Incur” means, with respect to any Debt or Capital Stock, to incur, create, issue, assume or
Guarantee such Debt or Capital Stock. If any Person becomes a Subsidiary on any date after the
date of the Indenture, the Debt and Capital Stock of such Person outstanding on such date will be
deemed to have been Incurred by such Person on such date for purposes of Section 4.15.



-10-









 





     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively.



     “Intellectual Property” means (1) all U.S. and foreign registered copyrights, all mask works
fixed in semiconductor chip products (as defined under 17 U.S.C. 901 of the U.S. Copyright Act),
and all registrations and applications therefor, (2) all U.S. and foreign patents and applications
for letters patent throughout the world, and all reissues, divisions, continuations,
continuations-in-part, extensions, renewals, and reexaminations of any of the foregoing, and (3)
U.S., state and foreign trademarks, all registrations and applications for any of the foregoing,
all extensions or renewals of any of the foregoing, and all of the goodwill of the business
connected with the use of and symbolized by the foregoing.



     “Interest Payment Date” means each April 15 and October 15 of each year, beginning April 15,
2011.



     “Investment” means



     (1) any advance, loan or other extension of credit to another Person,



     (2) any capital contribution to another Person, by means of any transfer of cash or other
property or in any other form,



     (3) any purchase or acquisition of Equity Interests, bonds, notes or other Debt, or other
instruments or securities issued by another Person, including the receipt of any of the above as
consideration for the sale, lease, transfer or other disposition of assets or rendering of
services, or



     (4) any Guarantee of any obligation of another Person.



     “Issue Date” means the date on which the Securities are originally issued under this
Indenture.



     “Jiawei Manufacturing Services Agreement” means the Manufacturing Services Agreement dated
July 14, 2009 by and among Jiawei Solarchina Co., Ltd., Jiawei Solar (Wuhan) Co., Ltd., the Company
and Evergreen Solar (China) Co., Ltd., as such agreement is in effect on the Issue Date.



     “Last Reported Sale Price” of the Common Stock on any Trading Day means the closing sale price
per share (or if no closing sale price is reported, the average of the bid and ask prices or, if
more than one, the average of the average bid and the average ask prices) on that day as reported
on The Nasdaq Stock Market or other principal U.S. securities exchange on which shares of Common
Stock are traded. If the Common Stock is not listed for trading on a United States national or
regional securities exchange on the relevant date, the “Last Reported Sale Price” of the Common
Stock will be the last quoted bid price per share of Common Stock in the over-the-counter market on
the relevant date as reported by the Pink OTC Markets Inc. or similar organization selected by the
Company. If shares of Common Stock are not so quoted, the “Last Reported Sale Price” of the




-11-











 




Common Stock will be as determined by a U.S. nationally recognized securities dealer retained
by the Company for that purpose (which may be an underwriter of or dealer manager with respect to
securities of the Company, or one of such underwriter’s or dealer manager’s Affiliates). The “Last
Reported Sale Price” of the Common Stock will be determined without reference to extended or after
hours trading.




     “Lien” means (1) any lien, mortgage, pledge, assignment for security, security interest,
charge or encumbrance of any kind (including any conditional sale or other title retention
agreement and any lease in the nature thereof) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing and (2) in the case of Capital
Stock, any purchase option, call or similar right of a third party with respect to such Capital
Stock.



     “Mandatory Conversion” has the meaning specified in Section 6.09(a).



     “Mandatory Conversion Date” has the meaning specified in Section 6.09(c)(i).



     “Market Disruption Event” means (1) a failure by the primary U.S. exchange or quotation system
on which the Common Stock trades or is quoted to open for trading during its regular trading
session or (2) the occurrence or existence for more than one-half hour period in the aggregate on
any Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason
of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common
Stock or in any options, contracts or future contracts relating solely to the Common Stock, and
such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on
such day.



     “Maturity Date” means April 15, 2017.



     “Maximum Percentage” has the meaning specified in Section 6.16.



     “Moody’s” means Moody’s Investors Service, Inc. and its successors.



     “Note Documents” mean, collectively, the Indenture, the Securities, each Note Guaranty, the
Collateral Documents and each other agreement, document or instrument executed or delivered at any
time in connection therewith, as each may be amended, restated, supplemented, modified, renewed or
extended from time to time.



     “Note Guaranty” means the guaranty of the Securities by a Guarantor pursuant to this
Indenture.



     “Notice of Default” means written notice provided to the Company by the Trustee or to the
Company and the Trustee by the Holders of not less than 25% in aggregate principal amount of
Securities outstanding of a Default by the Company, which notice must specify the Default, demand
that it be remedied and expressly state that such notice is a “Notice of Default.”



     “Obligations” means, with respect to any Debt, all obligations (whether in existence on the
Issue Date or arising afterwards, absolute or contingent, direct or indirect) for or in respect of
principal (when due, upon acceleration, upon redemption, upon mandatory repayment or repurchase
pursuant to a mandatory offer to purchase, or otherwise), premium, interest, penalties, fees,



-12-









 




indemnification, reimbursement and other amounts payable and liabilities with respect to such
Debt, including all interest accrued or accruing after the commencement of any bankruptcy,
insolvency or reorganization or similar case or proceeding at the contract rate (including, without
limitation, any contract rate applicable upon default) specified in the relevant documentation,
whether or not the claim for such interest is allowed as a claim in such case or proceeding.




     “Officers’ Certificate” means, with respect to the Company, a certificate signed (1) by its
chairman of the Board of Directors, any vice chairman of the Board of Directors, its chief
executive officer, its president, or any vice president, and (2) by its principal financial
officer, its principal accounting officer, its treasurer, any assistant treasurer, its secretary,
or any assistant secretary, and delivered to the Trustee. One of the officers signing an Officers’
Certificate given pursuant to Section 4.14 shall be the principal executive, financial or
accounting officer of the Company.



     “Open of Business” means 9:00 a.m., New York City time.



     “Opinion of Counsel” means a written opinion of counsel, who may be external or in-house
counsel for the Company.



     “Paying Agent” means any Person (including the Company) authorized by the Company to pay the
principal amount of, interest (including Additional Interest, if any) on, or the Fundamental Change
Purchase Price, Redemption Price or cash payments in respect of Coupon Make Whole Payments of, any
Securities on behalf of the Company. U.S. Bank National Association shall initially be the Paying
Agent.



     “Permitted Business” means any of the businesses in which the Company and its Subsidiaries are
engaged on the Issue Date, and any business reasonably related, incidental, complementary or
ancillary thereto.



     “Permitted Debt” has the meaning set forth in Section 4.15(b).



     “Permitted Investment” means



     (1) any Investment existing on the Issue Date;



     (2) any Investment constituting Debt or Disqualified Stock that is permitted to be incurred
pursuant to Section 4.15;



     (3) any Investment by the Company or a Guarantor in the Company or a Guarantor;



     (4) any Investment by a Subsidiary (other than a Guarantor) in (a) any other Subsidiary or the
Company or (b) a Person (other than a Subsidiary or the Company) if as a result of such Investment
(i) such Person becomes a Subsidiary or (ii) such Person is merged or consolidated with or into, or
transfers or conveys all or substantially all of its assets to, or is liquidated into, a
Subsidiary;



     (5) any Investment by the Company or any Subsidiary of the Company to a Person if as a result
of such Investment the Person becomes a Guarantor;



-13-









 





     (6) any Investment in exchange for, or out of the net cash proceeds of, (1) a sale of Equity
Interests (other than Disqualified Equity Interests) of the Company, (2) the issuance of
Subordinated Debt or (3) the contribution to the equity capital of the Company; provided that such
Investment is made within 365 days after such sale, issuance or contribution;



     (7) any Investment by the Company with, or the provision of credit support by the Company of
the operations of Foreign Subsidiaries with, the net cash proceeds from the issuance of the 2015
Notes that are not used to repurchase the 2013 Notes;



     (8) any Investments received (1) in compromise or resolution of obligations of trade creditors
or customers, including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer, (2) in a compromise or resolution of
litigation, arbitration or other disputes of any kind (including any settlement with respect to
Intellectual Property) or (3) as a result of a foreclosure by the Company or any of its
Subsidiaries with respect to any secured Investment or other transfer of title with respect to any
secured Investment in default;



     (9) extensions of trade credit in the ordinary course of business by the Company or any of its
Subsidiaries;



     (10) payroll, travel and other loans or advances to officers and employees in the ordinary
course of business not in excess of $500,000 outstanding at any time;



     (11) any Investment made by a Foreign Subsidiary with the proceeds of any Permitted Debt
Incurred by such Foreign Subsidiary;



     (12) Investments in Jiawei Solarchina Co., Ltd. or its affiliates in an aggregate amount not
to exceed $15,000,000;



     (13) other Investments in any Persons having an aggregate Fair Market Value (measured on the
date each such Investment was made and without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to this clause (13) that are at the time
outstanding, not to exceed $7,500,000; provided, however, that if an Investment pursuant to this
clause (13) is made in any Person that is not a Guarantor at the date of the making of the
Investment and such Person becomes a Guarantor after such date, such Investment shall thereafter be
deemed to have been made pursuant to clause (3) above, and shall cease to have been made pursuant
to this clause (13);



     (14) any Investment in Cash Equivalents;



     (15) Hedging Agreements otherwise permitted under the Indenture;



     (16) endorsements for collection or deposit in the ordinary course of business;



     (17) lease, utility, workers’ compensation, unemployment insurance, performance and other
deposits made in the ordinary course of business;



-14-









 





     (18) prepaid expenses and negotiable instruments held for collection in the ordinary course of
business;



     (19) Investments in Evergreen Solar (China) Co., Ltd. pursuant to the Increase Registered
Capital and Enlarge Shares Agreement, dated July 24, 2009, between Evergreen Solar, Inc. and Hubei
Science & Technology Investment Co., Ltd on Evergreen Solar (China) Co., Ltd. and the Equity
Transfer Agreement, dated July 24, 2009, between the Company, Hubei Science & Technology Investment
Co., Ltd. and various parties (as such agreements are in effect on the Issue Date); and



     (20) Investments in Jiawei Solar (Wuhan) Co., Ltd. to the extent required by Section 3.3 or
Section 3.4 of the Jiawei Manufacturing Services Agreement.



     “Permitted Liens” means



     (1) Liens existing on the Issue Date;



     (2) Liens on the Collateral securing the Securities, the Note Guaranties and other Obligations
under the indenture and in respect thereof and any obligations owing to the Trustee or the
Collateral Agent under the Indenture or the Collateral Documents;



     (3) pledges or deposits under worker’s compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids, tenders, contracts or leases,
or to secure public or statutory obligations, surety bonds, customs duties and the like, or for the
payment of rent, in each case incurred in the ordinary course of business and not securing Debt;



     (4) Liens imposed by law, such as landlords’, suppliers’, carriers’, vendors’, warehousemen’s,
materialmen’s, workmen’s, repairman’s and mechanics’ liens, in each case for sums not yet due or
being contested in good faith and by appropriate proceedings and for which adequate reserves are
maintained therefor in accordance with GAAP;



     (5) Liens in respect of taxes and other governmental assessments and charges; levies or claims
which are not yet due or which are being contested in good faith and by appropriate proceedings and
for which adequate reserves are maintained therefor in accordance with GAAP;



     (6) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions as to the use of real property, not
interfering in any material respect with the conduct of the business of the Company and its
Subsidiaries;



     (7) non-exclusive licenses or leases or subleases as licensor, lessor or sublessor of any of
its property, including intellectual property, in the ordinary course of business, and any interest
of co-sponsors, co-owners or co-developers of intellectual property;



     (8) customary Liens in favor of trustees and escrow agents, and netting and setoff rights,
banker’s liens and the like in favor of financial institutions;



-15-









 





     (9) options, put and call arrangements, rights of first refusal and similar rights relating to
Investments in joint ventures, partnerships and the like;



     (10) judgment liens, and Liens securing appeal bonds or letters of credit issued in support of
or in lieu of appeal bonds;



     (11) Liens (including the interest of a lessor under a Capital Lease) on property that secure
Debt incurred pursuant to clause (8) of the definition of Permitted Debt so long as such Lien
attaches solely to the property subject to such Capital Lease or the purchase price of which is so
financed and refinanced, together with any proceeds thereof;



     (12) Liens on property or shares of Capital Stock of a Person at the time such Person becomes
a Subsidiary of the Company, provided such Liens were not created in contemplation thereof and do
not extend to any other property of the Company or any Subsidiary;



     (13) Liens on property at the time the Company or any of the Subsidiaries acquires such
property, including any acquisition by means of a merger or consolidation with or into the Company
or a Subsidiary of such Person, provided such Liens were not created in contemplation thereof and
do not extend to any other property of the Company or any Subsidiary;



     (14) Liens on assets of Foreign Subsidiaries securing Debt of such Foreign Subsidiaries or
other obligations of such Foreign Subsidiaries;



     (15) extensions, renewals or replacements of any Liens referred to in clauses (11), (12) or
(13) in connection with the refinancing of the obligations secured thereby, provided that (x) such
Lien does not extend to any other property and, except as contemplated by the definition of
“Permitted Refinancing Debt”, the amount secured by such Lien is not increased and (y) in the case
of Liens on Collateral, such Lien has the same or lower priority as the Lien being extended,
renewed or replaced;



     (16) Liens arising from precautionary Uniform Commercial Code financing statement filings
regarding operating leases entered into by the Company or a Subsidiary in the ordinary course of
business;



     (17) Liens incurred in the ordinary course of business of the Company or any Subsidiary of the
Company securing obligations (other than Debt) not to exceed $5.0 million in the aggregate at any
time outstanding; and



     (18) Liens securing Debt permitted by clause (14) of the definition of Permitted Debt.



     “Permitted Refinancing Debt” has the meaning set forth in Section 4.15(b)(3).



     “Person” means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity, including a government or political subdivision or an
agency or instrumentality thereof.



     “Physical Securities” means certificated Securities in registered form issued in denominations
of $1,000 principal amount and integral multiples of $1,000 in excess thereof.



-16-









 





     “Preferred Stock” means, with respect to any Person, any and all Capital Stock which is
preferred as to the payment of dividends or distributions, upon liquidation or otherwise, over
another class of Capital Stock of such Person.



     “Property” means, with respect to any Person, any interest of such Person in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible, including Capital
Stock in, and other securities of, any Person.



     “Prospectus” means that certain Prospectus dated [•], 2011 with respect to the exchange offer
of the Securities for the outstanding 2015 Notes.



     “Public Spin-Off” has the meaning specified in Section 6.04(d).



     “Public Spin-Off Valuation Period” has the meaning set forth in Section 6.04(d).



     “Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified
Equity Interests.



     “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by the Company or any of its Subsidiaries in any real property.



     “Redemption Date” means the date specified for redemption of the Securities in accordance with
the terms of the Securities and Article 7.



     “Redemption Notice” has the meaning specified in Section 7.03.



     “Redemption Price” has the meaning specified in Section 7.01(b).



     “Reference Property” has the meaning specified in Section 6.05.



     “Regular Record Date” means, with respect to the payment of interest on the Securities
(including Additional Interest, if any), the Close of Business on April 1 or October 1, as the case
may be, immediately preceding the relevant Interest Payment Date.



     “Restricted Debt” means (a) any Subordinated Debt, (b) the 2013 Notes, (c) the 2020 Notes and
(d) any Debt permitted by clauses (3), (6), (12) or (15) of the definition of Permitted Debt.



     “Restricted Payments” has the meaning set forth in Section 4.18.



     “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc. and its
successors.



     “Secured Obligations” means all obligations of the Company and the Guarantors from time to
time arising under or in respect of the Indenture, the Securities, the Note Guaranties, the
Collateral Documents and any other Note Document (including the obligations to pay principal,
interest and all other charges, fees, expenses, commissions, reimbursements, premiums, indemnities
and other payments related to or in respect of the obligations contained any Note Document),
[excluding



-17-









 




however (unless a 2015 Notes Release Event has occurred) all Excluded Obligations,] 6 in
each case whether (a) such obligations are direct or indirect, secured or unsecured, joint or
several, absolute or contingent, reduced to judgment or not, liquidated or unliquidated, disputed
or undisputed, legal or equitable, due or to become due whether at Stated Maturity, by acceleration
or otherwise; (b) arising in the regular course of business or otherwise; (c) for payment or
performance; (d) discharged, stayed or otherwise affected by any bankruptcy, insolvency,
reorganization or similar proceeding with respect to the Company or any Guarantor or any other
Person; or (e) now existing or hereafter arising (including interest and other obligations arising
or accruing after the commencement of any bankruptcy, insolvency, reorganization or similar
proceeding with respect to the Company or any Guarantor or any other Person, or that would have
arisen or accrued but for the commencement of such proceeding, even if such obligation or the claim
therefor is not enforceable or allowable in such proceeding)[, but with respect to all of the
foregoing, excluding however (unless a 13% Release Event has occurred) all Excluded Obligations.
For avoidance of doubt, if a 13% Release Event has occurred, then all Excluded Obligations shall
constitute Secured Obligations.] 7




     [“Secured Party” means, at any relevant time, the holders of the Secured Obligations,
including without limitation, the Holders of the Securities, the Trustee and the Collateral
Agent.] 8



     [“Secured Party” means, at any relevant time, the holders of the Secured Obligations,
including without limitation, the Holders of the Securities, the Trustee, the holders of the 2015
Notes, the 2015 Notes trustee and the Collateral Agent.] 9



     [“Security Agreement” means that certain Pledge and Security Agreement, dated as of the Issue
Date, among the Company, the Guarantors and the Collateral Agent, as may be amended, restated,
supplemented or otherwise modified from time to time.] 10



     [“Security Agreement” means that certain Amended and Restated Pledge and Security Agreement,
dated as of the Issue Date, among the Company, the Guarantors and the Collateral Agent, as may be
amended, restated, supplemented or otherwise modified from time to time.] 11





 




			
	6	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.
	 
	7	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.
	 
	8	 	This portion is to be included only if the Company
accepts at least 75% of 2015 Notes in exchange offer.
	 
	9	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.
	 
	10	 	This portion is to be included only if the Company
accepts at least 75% of 2015 Notes in exchange offer.
	 
	11	 	This portion is to be included only if the
Company accepts more than 50% but less than 75% of 2015 Notes in exchange
offer.





-18-









 





     “Security Interest” has the meaning specified in Section 9.01(a).



     “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal
U.S. national or regional securities exchange or market on which the Common Stock is listed or
admitted for trading.



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



     “Security” has the meaning specified in the first paragraph of the Recitals of the Company,
and includes any Security or Securities, as the case may be, authenticated and delivered under this
Indenture, including any Global Securities. The Securities shall be treated as a single series for
purposes of this Indenture.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.06(a).



     “Significant Subsidiary” means any Subsidiary of the Company that would be a “significant
subsidiary” within the meaning specified in Rule 1-02(w) of Regulation S-X promulgated by the
Commission under the Exchange Act as in effect as of the Issue Date.



     “Stated Maturity” means (i) with respect to any Debt, the date specified as the fixed date on
which the final installment of principal of such Debt is due and payable, or (ii) with respect to
any scheduled installment of principal of or interest on any Debt, the date specified as the fixed
date on which such installment is due and payable as set forth in the documentation governing such
Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly
scheduled date for payment.



     “Subordinated Debt” means any Debt of the Company or any Guarantor that (x) is subordinate or
junior in right of payment to the Securities or the applicable Note Guaranty, as the case may be,
pursuant to a written agreement having terms consistent with those set forth in Exhibit B
hereto, (y) has a Stated Maturity no earlier than the 91st day after the Maturity Date of the
Securities and (z) does not require any prepayment, repurchase or redemption prior to the Stated
Maturity of the Securities (other than redemptions or repurchases in respect of changes in control
on terms that are market terms on the date of issuance).



     “Subsequent Pricing Mechanism” has the meaning specified in Section 6.10(b).



     “Subsidiary” means, with respect to any Person, any corporation, association or other business
entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by,
or, in the case of a partnership, the sole general partner or the managing partner or the only
general partners of which are, such Person and one or more Subsidiaries of such Person (or a






-19-









 




combination thereof). Unless otherwise specified, “Subsidiary” means a Subsidiary of the Company.




     “Successor Company” has the meaning specified in Section 11.01(a).



     “Termination of Trading” means the termination of trading of the Common Stock (or other common
equity interests (or certificates representing common equity interests) into which the Securities
are then convertible), which will be deemed to have occurred if the Common Stock (or other common
equity interests (or certificates representing common equity interests) into which the Securities
are then convertible) is not listed on a U.S. national securities exchange.



     “Trading Day” means a day during which (1) trading in the Common Stock generally occurs, (2)
there is no Market Disruption Event and (3) a Last Reported Sale Price for the Common Stock (other
than a Last Reported Sale Price referred to in the third sentence of such definition) is available
for such day; provided that if the Common Stock is not admitted for trading or quotation on or by
any exchange, bureau or other organization referred to in the definition of Last Reported Sale
Price (excluding the third sentence of that definition), “Trading Day” will mean any Business Day.



     “Trailing Pricing Mechanism” has the meaning specified in Section 6.07(b).



     “Trigger Event” has the meaning specified in Section 6.04(d).



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated thereunder.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such successor Trustee.



     “Trust Officer” means any officer of the Trustee within the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this Indenture and also, with respect
to a particular matter, any other officer of the Trustee to whom such matter is referred because of
such officer’s knowledge and familiarity with the particular subject.



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



     “U.S. Government Obligations” means obligations issued or directly and fully guaranteed or
insured by the United States of America or by any agent or instrumentality thereof, provided that
the full faith and credit of the United States of America is pledged in support thereof.



     “Voting Stock” means, with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.



     “VWAP” means the price per share of Common Stock on any Trading Day as is displayed under the
heading “Bloomberg VWAP” on Bloomberg page “ESLR <equity> AQR” (or its equivalent successor
service or page if such service or page is not available) in respect of the period



-20-









 




from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day. If such price is not
available, the VWAP means the market value of one share of Common Stock on such Trading Day as
determined by a nationally recognized independent investment banking firm (which may be an
underwriter of or dealer manager with respect to securities of the Company, or one of such
underwriter’s or dealer manager’s Affiliates) retained for this purpose by the Company.




     “Wholly Owned” means with respect to any Subsidiary, a Subsidiary all of the outstanding
Capital Stock of which (other than any director’s qualifying shares) is owned by the Company and
one or more Wholly Owned Subsidiaries (or a combination thereof).



     Section 1.02 Trust Indenture Act Provisions. Whenever this Indenture refers to a provision
of the Trust Indenture Act, that provision is incorporated by reference in and made a part of this
Indenture. The Indenture shall also include those provisions of the Trust Indenture Act required
to be included herein by the provisions of the Trust Indenture Reform Act of 1990. The following
Trust Indenture Act terms used in this Indenture have the following meanings:



     “Commission” means the Securities and Exchange Commission.



     “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; and



     “obligor” on the indenture securities means the Company and any successor obligor on the
Securities.



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



     Section 1.03 Compliance Certificates and Opinions. Upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture
Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if
to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other requirement set forth
in this Indenture.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:



          (a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;




-21-









 








          (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 each such individual, such individual has made such
examination or investigation as is necessary to enable such individual 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 each such individual, such condition
or covenant has been complied with.




     In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers’
Certificate or certificates of public officials.



     Section 1.04 Acts of Holders; Record Dates.



          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by their
agents duly appointed in writing and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as an “Act” of the Holders
signing such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to
Section 12.01) conclusive in favor of the Trustee and the Company, if made in the manner provided
in this Section 1.04.




          (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee reasonably deems sufficient.




          (c) The Company may, in the circumstances permitted by the Trust Indenture Act, fix any day as
the record date for the purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to vote on any
action, authorized or permitted to be given or taken by Holders. If not set by the Company prior
to the first solicitation of a Holder made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to be provided
pursuant to Section 13.01) prior to such first solicitation or vote, as the case may be. With
regard to any record date, only the Holders on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.




          (d) The ownership of Securities shall be proved by the Security Register.




-22-









 








          (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon such Security.




     Section 1.05 Notices, Etc., to Trustee and Company. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:



               (i) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its applicable
Corporate Trust Office; or



               (ii) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of its principal office specified in
Section 16.02, or at any other address previously furnished in writing to the Trustee by the
Company, to the attention of the chief financial officer of the Company.



     Section 1.06 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and delivered in person, mailed using the U.S. postal system, first-class postage
prepaid, delivered by facsimile, with confirmation of transmission, or delivered by overnight
courier, to each Holder affected by such event, at such Holder’s address as it appears in the
Security Register, not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any
such notice will be deemed to have been given at the time delivered, if delivered in person; on the
fifth day after being mailed using the U.S. postal system; upon confirmation of transmission, if
delivered by facsimile; or the next Business Day, if sent by overnight courier. Where this
Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.



     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee or as otherwise provided in this Indenture shall constitute a
sufficient notification for every purpose hereunder.



     Whenever under this Indenture the Trustee is required to provide any notice by mail, in all
cases the Trustee may alternatively provide notice by overnight courier or by facsimile, with
confirmation of transmission.



-23-









 





     Section 1.07 Benefits of Indenture. Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties hereto and their respective successors
hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.



ARTICLE 2

SECURITY FORMS




     Section 2.01 Forms Generally. The Securities and the Trustee’s certificates of authentication
shall be in substantially the forms set forth in this Article 2, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor, the Code and regulations thereunder, or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution thereof.



     The Securities shall initially be issued in the form of one or more Global Securities in
registered form in substantially the form set forth in this Article 2. The aggregate principal
amount of the Global Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary, as hereinafter provided.



     Section 2.02 Form of Face of Security.



     [THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (“DTC”), A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]12





 




			
	12	 	This legend is to be included only if the
Security is a Global Security.





-24-









 





7.5% Convertible Senior Secured Notes due 2017




			
	 	 	 
	NO. [     ]
	 	U.S. $[     ]






CUSIP NO. [     ]




     Evergreen Solar, Inc., a Delaware corporation (herein called the “Company”), which term
includes any successor corporation under the Indenture referred to on the reverse hereof), for
value received hereby promises to pay to [          ], or registered assigns, the principal sum
of [     ] UNITED STATES DOLLARS (U.S. $[     ]) (which amount may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, in
accordance with the rules and procedures of the Depositary and in accordance with the below
referred Indenture) on April 15, 2017. Payment of the principal of this Security shall be made by
check mailed to the address of the Holder of this Security specified in the register of Securities,
or, at the option of the Company, by wire transfer in immediately available funds, in such lawful
money of the United States of America as at the time of payment shall be legal tender for the
payment of public and private debts.



     The issue date of this Security is [          ].13



     Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder the right to convert this Security into
shares of Common Stock of the Company and to the ability and obligation of the Company to purchase
this Security upon certain events, in each case, on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth at this place.
Capitalized terms used but not defined herein shall have such meanings as are ascribed to such
terms in the Indenture.



     This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with and governed by the laws of said State.



     This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.



     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 	 	 

	 	 	EVERGREEN SOLAR, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 







 




			
	13	 	The Issue Date for the Securities.





-25-









 





     Section 2.03 Form of Reverse of Security.



EVERGREEN SOLAR, INC.




7.5% Convertible Senior Secured Notes due 2017



     This Security is one of a duly authorized issue of Securities of the Company, designated as
its 7.5% Convertible Senior Secured Notes due 2017 (the “Securities”) issued or to be issued under
and pursuant to the Indenture dated as of [•], 2011 (the “Indenture”), by and among the Company,
the guarantors from time to time party thereto and U.S. Bank National Association, as trustee (the
“Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities.



     Interest. The Securities will bear interest at a rate of 7.5% per year. Interest on
the Securities will accrue from and including the issue date, or from the most recent date to which
interest has been paid or duly provided for. Interest will be payable semiannually in arrears on
each Interest Payment Date, beginning April 15, 2011. Pursuant to Section 10.03 of the Indenture,
in certain circumstances, the Holders of Securities shall be entitled to receive Additional
Interest.



     Interest (including Additional Interest, if any) will be paid to the person in whose name a
Security is registered at the Close of Business on the April 1 or October 1, as the case may be,
immediately preceding the relevant Interest Payment Date; provided that on the Maturity Date,
interest will be paid to the Person to whom the principal amount is paid, regardless of whether
such Person is the Holder of record.



     Interest on the Securities will be computed on the basis of a 360-day year composed of twelve
30-day months.



     Interest will cease to accrue on the Securities upon their maturity, conversion, redemption or
repurchase.



     Ranking. The Securities constitute general senior secured obligations of the Company.



     Purchase at the Option of the Holder Upon a Fundamental Change. Subject to the terms
and conditions of the Indenture, the Company shall become obligated, at the option of the Holder,
to purchase the Securities, in whole or in part, if a Fundamental Change occurs at any time prior
to the Maturity Date. The Fundamental Change Purchase Price at which the Securities may be
purchased shall be payable in cash and shall be equal to 100% of the principal amount of the
Securities



-26-









 




purchased plus accrued and unpaid interest (including Additional Interest, if any) to,
but excluding, the Fundamental Change Purchase Date (subject to certain exceptions set forth in the
Indenture).




     Withdrawal of Fundamental Change Purchase Notice. Holders have the right to withdraw,
in whole or in part, any Fundamental Change Purchase Notice, as the case may be, by delivering to
the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture.



     Payment of Fundamental Change Purchase Price. If money sufficient to pay the
Fundamental Change Purchase Price of all Securities or portions thereof to be purchased on a
Fundamental Change Purchase Date is deposited with the Paying Agent on the Fundamental Change
Purchase Date, such Securities will cease to be outstanding and interest will cease to accrue on
such Securities (or portions thereof) immediately after such Fundamental Change Purchase Date and
the Holder thereof shall have no other rights as such (other than the right to receive the
Fundamental Change Purchase Price upon surrender of such Security).



     Conversion. Subject to and in compliance with the provisions of the Indenture, the
Holder hereof has the right, at its option, to convert the principal amount hereof or any portion
of such principal which is $1,000 or an integral multiple thereof, into shares of Common Stock at
the Applicable Conversion Rate. The initial Conversion Rate is 250 shares of Common Stock per
$1,000 principal amount of Securities (equivalent to a Conversion Price of approximately $4.00),
subject to adjustment in certain events described in the Indenture. Upon conversion, the Company
will issue shares of Common Stock as set forth in the Indenture. No fractional shares will be
issued upon any conversion, but an adjustment and payment in cash will be made, as provided in the
Indenture, in respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Securities for conversion. Securities in respect of which a Holder is exercising
its right to require purchase on a Fundamental Change Purchase Date may be converted only if such
Holder withdraws its election to exercise such right in accordance with the terms of the Indenture.



     In the event of a deposit or withdrawal of an interest in this Security, including an
exchange, transfer, purchase or conversion of this Security in part only, the Trustee, as custodian
of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in
accordance with the rules and procedures of the Depositary.



     Coupon Make Whole Payment in Connection with a Voluntary Conversion. If a Holder
hereof elects to convert some or all of its Securities on or prior to April 15, 2015, such Holder
will receive a Coupon Make Whole Payment for the Securities being converted equal to the aggregate
amount of interest payments that would have been payable on such converted Securities from the last
day through which interest was paid on the Securities, or the issue date if no interest has been
paid, to and including April 15, 2015, paid in shares of Common Stock valued pursuant to the
Trailing Pricing Mechanism, or, at the Company’s option, in cash, subject to 11 Trading Days having
elapsed following notice of any election to pay in cash or, following any such cash election,
notice of any election to pay in shares of Common Stock, as described in and subject to certain
exceptions set forth in the Indenture. [The Company may only make this Coupon Make Whole Payment in cash after the 2015 Notes are no
longer outstanding.]14 [While the 2015 Notes are outstanding, the Company may only make
this Coupon Make Whole Payment in cash if it does not then have a sufficient number of authorized
and unissued shares that have not been reserved for other purposes (determined as provided in the
Indenture).]15



     Conversion at the Option of the Company. At any time on or prior to the Maturity
Date, the Company may elect to convert some or all of the Securities if the Last Reported Sale
Price of the Common Stock is greater than or equal to 150% of the Applicable Conversion Price for
at least 20




 




			
	 
	14	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is obtained.
	 
	15	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is not obtained.



-27-









 







Trading Days during any 30 consecutive Trading Day period ending within five Trading
Days prior to the date of the Company Conversion Notice.



     Coupon Make Whole Payment in Connection with Conversion at the Option of the Company.
If the Company elects to convert some or all of the Securities on or prior to April 15, 2015,
Holders will receive a Coupon Make Whole Payment upon such conversion equal to the aggregate amount
of interest payments that would have been payable on such converted Securities from the last day
through which interest was paid on the Securities, or the Issue Date if no interest has been paid,
to and including April 15, 2015, paid in shares of Common Stock valued pursuant to the Subsequent
Pricing Mechanism, or, at the Company’s option, in cash, as described in and subject to certain
exceptions set forth in the Indenture. [The Company may only make this Coupon Make Whole Payment in cash after the 2015 Notes are no
longer outstanding.] 16 [While the 2015 Notes are outstanding, the Company may only
make this Coupon Make Whole Payment in cash if it does not then have a sufficient number of
authorized and unissued shares that have not been reserved for other purposes (determined as
provided in the
Indenture).] 17






     Limitations on Conversion. The Company will not effect any conversion of the
Securities (including any Mandatory Conversion), and Holders of the Securities will not have the
right to convert any portion of the Securities, to the extent that, after giving effect to such
conversion, a Holder (together with such Holder’s Affiliates) would beneficially own in excess of
9.9% of the number of shares of Common Stock outstanding immediately after giving effect to such
conversion.



     If the Company is unable to exercise its option to convert some or all of the Securities of
any Holder due to the limitations described above, then the Company will have the right at any time
to redeem the Securities held by such Holder that the Company is not permitted to convert at a
redemption price equal to 100% of the principal amount of Securities being redeemed, together with
accrued and unpaid interest (including Additional Interest, if any), on the principal amount of the
Securities redeemed, to but excluding the Redemption Date (subject to certain exceptions set forth
in the Indenture). [The Company may only redeem the Securities after the 2015 Notes are no longer
outstanding] 18



     Redemption at the Option of the Company. The Securities are redeemable in whole or in
part at any time on or after April 15, 2015, at the option of the Company. The Redemption Price at
which the Securities are redeemable shall be payable in cash and shall be equal to 100% of the
principal amount of Securities being redeemed, together with accrued and unpaid interest (including
Additional Interest, if any), on the principal amount of the Securities redeemed, to but excluding
the Redemption Date (subject to certain exceptions set forth in the Indenture). No sinking fund is
provided for the Securities. [The Company may only redeem the Securities after the 2015 Notes are
no longer
outstanding] 19



     Acceleration of Maturity. If an Event of Default shall occur and be continuing, the
principal amount plus interest (including Additional Interest, if any) through such date on all the
Securities may be declared due and payable in the manner and with the effect provided in the
Indenture.





 




			
	 
	16	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is obtained.
	 
	17	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is not obtained.



	 
	18	 	This portion is to be included only if the
Company accepts more than 50% but less than 75% of 2015 Notes in exchange
offer.
	 
	19	 	This portion is to be included only if the
Company accepts more than 50% but less than 75% of 2015 Notes in exchange
offer.





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     Modification and Amendment with Consent of Holders; Waiver of Past Defaults. The
Indenture permits, with certain exceptions as therein provided, the amendment thereof and of the
Collateral Documents and the modification of the rights and obligations of the Company and the
rights of the Holders of the Securities under the Indenture and the Collateral Documents at any
time by the Company and the Trustee with the consent of the Holders of specified percentages in
aggregate principal amount of the outstanding Securities. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the outstanding Securities,
on behalf of the Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of any provision of or applicable to this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.




     Limitation on Suits. As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder,
unless such Holder shall have previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities, the Holders of not less than 25% in aggregate principal
amount of the outstanding Securities shall have made a written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee security and
indemnity reasonably satisfactory to it, the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of outstanding Securities a direction inconsistent with such
request, and the Trustee shall have failed to institute any such proceeding within 60 days after
receipt of such request and offer of security or indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security in the case of an Event of Default under Sections
10.01(a) or 10.01(b) of the Indenture.



     Unconditional Rights of Holders to Receive Payment. No reference herein to the
Indenture and no provision of this Security or of the Indenture shall impair or affect adversely
the right of any Holder, which is absolute and unconditional, to receive payment of the principal
amount, Fundamental Change Purchase Price, Redemption Price or Coupon Make Whole Payments in
respect of, and interest (including Additional Interest, if any) on, this Security and to convert
this Security, or to bring suit for the enforcement of such payment.



     Registration of Transfer and Exchange. As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the office or agency of
the Company in The City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.



     No service charge shall be made for any such registration of transfer or exchange, but the
Company and the Security Registrar may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.



-29-









 





     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and the Security Registrar and any agent of the Company or the Trustee may treat the Person
in whose name this Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.



     Denominations. The Securities are issuable only in registered form in denominations
of $1,000 and any integral multiple of $1,000 in excess thereof, as provided in the Indenture and
subject to certain limitations therein set forth. Securities are exchangeable for a like aggregate
principal amount of Securities of a different authorized denomination, as requested by the Holder
surrendering the same.



     Governing Law. The Indenture and this Security shall be governed by, and construed in
accordance with, the laws of the State of New York.



     Defined Terms. All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.




-30-











 





SCHEDULE
OF EXCHANGES OF
SECURITIES20




Evergreen Solar, Inc.



7.5% Convertible Senior Secured Notes due 2017



     The following exchanges, purchases or conversions of a part of this Global Security have been
made:



	 	 	 	 	 	 	 	 	 

	 
	 	 	 	 	 	Principal amount of	 	 
	 
	 	Amount of
	 	Amount of increase
	 	this Global
	 	Signature of
	 
	 	decrease in
	 	in principal amount
	 	Security following
	 	authorized
	Date of Decrease or
	 	principal amount of
	 	of this Global
	 	such decrease (or
	 	signatory of
	Increase
	 	this Global Security
	 	Security
	 	increase)
	 	Trustee
	 
	 	 
	 	 
	 	 
	 	 







 




			
	20	 	This schedule is to be included only if the
Security is a Global Security.





-31-









 





ASSIGNMENT FORM




     If you want to assign this Security, fill in the form below and have your signature
guaranteed:



     I or we assign and transfer this Security to:



     (Print or type name, address and zip code and social security or tax ID number of assignee)



     and
irrevocably appoint           
               
                agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.



	 	 	 	 	 	 	 	 	 	 	 

	Date:

	 	 	 	 
	 	Signed:
	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 




(Sign exactly as your name appears on the other side of this Security)




	 	 	 	 

	Signature Guarantee:
	 	 	 
	 

	 	 	 





     NOTE: Signatures must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program”
as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.



-32-









 





CONVERSION NOTICE




     If you want to convert this Security into Common Stock of the Company, check the box: o



     To convert only part of this Security, state the principal amount to be converted (which must
be $1,000 or an integral multiple of $1,000):



     $                    



     If you want the share certificate, if any, made out in another person’s name, fill in the form
below:



     (Insert other person’s social security or tax ID no.)



     Notwithstanding anything to the contrary contained herein, this Conversion Notice shall
constitute a representation by the Holder of this Security that, after giving effect to the
conversion provided for in this Conversion Notice, such Holder (together with its Affiliates) will
not have beneficial ownership (together with the beneficial ownership of such Holder’s Affiliates)
of a number of shares of Common Stock which exceeds the Maximum Percentage of the total outstanding
shares of Common Stock as determined pursuant to the provisions of Section 6.16 of the Indenture.



     (Print or type other person’s name, address and zip code)



	 	 	 	 	 	 	 	 	 	 	 

	Date:

	 	 	 	 
	 	Signed:
	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 




(Sign exactly as your name appears on the other side of this Security)




	 	 	 	 

	Signature Guarantee:
	 	 	 
	 

	 	 	 





     NOTE: Signatures must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Security Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program”
as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.



-33-









 





     Section 2.04 Form of Trustee’s Certificate of Authentication. This is one of the Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 	 	 	 	 	 	 

	Dated:                         	 	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	 	 	 	 	     as Trustee	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Authorized Signatory	 	 






ARTICLE 3

THE SECURITIES




     Section 3.01 Title and Terms; Payments. The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is limited to
$[•]21, except for Securities authenticated and delivered
upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Sections 3.05, 3.06, 3.07, 3.10, 5.05 or 7.07. The Securities shall be issued without any
restriction on transfer under the U.S. federal securities laws in reliance on an effective
registration statement on Form S-4.



     The Securities shall be known and designated as the “7.5% Convertible Senior Secured Notes due
2017” of the Company. The principal amount shall be payable at the Maturity Date.



     The principal amount of, and interest on, Global Securities registered in the name of the
Depositary or its nominee shall be paid by wire transfer in immediately available funds to the
Depositary or its nominee, as applicable.



     The principal amount of Physical Securities shall be payable in cash at the Corporate Trust
Office and at any other office or agency maintained by the Company for such purpose. Interest on
Physical Securities will be payable (i) to Holders having an aggregate principal amount of
$1,000,000 or less of Securities, by check mailed to such Holders at the address set forth in the
Security Register and (ii) to Holders having an aggregate principal amount of more than $1,000,000
of Securities, either by check mailed to such Holders or, upon application by a Holder to the
Security Registrar not later than the relevant Regular Record Date for such interest payment, by
wire transfer
in immediately available funds to such Holder’s account within the United States, which
application shall remain in effect until the Holder notifies the Security Registrar to the contrary
in writing.





 




			
	21	 	To be determined by 2015 Notes exchange offer.





-34-









 





     Section 3.02 Ranking. The Securities constitute general senior secured obligations of the Company.



     Section 3.03 Denominations. The Securities shall be issuable only in registered form without coupons and in
denominations of $1,000 and any integral multiple of $1,000 in excess thereof.



     Section 3.04 Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its chairman of the Board of
Directors, any of its vice chairmen of the Board of Directors, its chief executive officer, its
president, any of its vice presidents, its principal financial officer or its treasurer.



     Securities bearing the manual or facsimile signatures of an individual who was at any time a
proper officer of the Company shall bind the Company, notwithstanding that such individual has
ceased to hold such office prior to the authentication and delivery of such Securities or did not
hold such office at the date of such Securities.



     On the Issue Date, the Company shall issue, and the Trustee shall authenticate and make
available for delivery, the Securities for original issue in the aggregate principal amount of
$[•]22. The Trustee shall so authenticate and make available for delivery Securities
upon receipt of a Company Order. The Company Order shall specify the amount of Securities to be
authenticated, and shall further specify whether such Securities will be represented by a Global
Security. The Trustee, in accordance with such Company Order, shall authenticate and deliver such
Securities as provided in this Indenture and not otherwise.



     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.



     Section 3.05 Temporary Securities. Pending the preparation of definitive Securities, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such Securities;
provided, that any such temporary Securities shall bear legends on the face of such Securities as
set forth in Section 2.02.



     If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary





 




			
	22	 	To be determined by 2015 Notes exchange offer.




-35-









 









Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Physical Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits under this Indenture as
Physical Securities.




     Section 3.06 Registration; Registration of Transfer and Exchange.



          (a) The Company shall cause to be kept at the applicable Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or agency designated
pursuant to Section 4.02 being herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The Trustee is hereby
appointed “Security Registrar” (the “Security Registrar”) for the purpose of registering Securities
and transfers of Securities as herein provided. The Company may act as Security Registrar and at
any time appoint a new Security Registrar without prior notice to Holders.




     Upon surrender for registration of transfer of any Security at an office or agency of the
Company designated pursuant to Section 4.02 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denominations and of a like aggregate principal amount
and tenor, each such Security bearing such legends as may be required by this Indenture.



     At the option of the Holder and subject to the other provisions of this Section 3.06 and to
Section 3.10, Securities may be exchanged for other Securities of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.



     All Securities issued upon any registration of 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 registration of transfer or exchange.



     Every Security presented or surrendered for registration of transfer or for 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 Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company and the Security Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.05 not involving any transfer.



     Neither the Company nor the Security Registrar shall be required to exchange or register a
transfer of any Security (i) that has been surrendered for conversion or selected for redemption or



-36-









 







(ii) as to which a Fundamental Change Purchase Notice has been delivered and not withdrawn, except
that where only a portion of the foregoing is being converted or redeemed or where such Fundamental
Change Purchase Notice provides that such Security is to be purchased only in part, the Company and
the Security Registrar shall be required to exchange or register a transfer of the portion thereof
not to be converted, redeemed or purchased.



          (b) Neither the Trustee, the Security Registrar nor any of their respective agents shall (i)
have any duty to monitor compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation relating to any transfers or
exchanges other than as specifically required hereunder.




     Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security 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 bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security 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.



     Upon the issuance of any new Security under this Section 3.07, the Company may require payment
by the Holder of a sum sufficient to cover any tax or other governmental 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 issued pursuant to this Section 3.07 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 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 3.08 Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the
Trustee, the Security Registrar and any agent of the Company, the Trustee or the Security Registrar
may treat the Person in whose name such Security is registered as the owner of such Security for
the purpose of receiving payment of the principal of such Security and for all other purposes
whatsoever, whether or not such Security be overdue,
and



-37-









 







neither the Company, the Trustee, the
Security Registrar nor any agent of the Company, the Trustee or the Security Registrar shall be
affected by notice to the contrary.



     Section 3.09 Book-Entry Provisions for Global Securities.



          (a) The Global Securities initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for the Depositary
and (iii) bear legends as set forth on the face of the form of Security in Section 2.02.




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



          (b) Transfers of the Global Securities shall be limited to transfers in whole, but not in
part, to the Depositary, its successors or their respective nominees. Interests of beneficial
owners in a Global Security may be transferred or exchanged, in whole or in part, for Physical
Securities in accordance with the rules and procedures of the Depositary and the provisions of
Section 3.10. In addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Securities if (i) such Depositary has
notified the Company that the Depositary (A) is unwilling or unable to continue as Depositary for
such Global Security or (B) has ceased to be a clearing agency registered under the Exchange Act
when the Depositary is required to be so registered to act as such Depositary and, in either such
case, no successor Depositary shall have been appointed within 90 days of such notification, or
(ii) the Company, at its option, notifies the Trustee that it elects to cause the issuance of
Physical Securities, subject to applicable procedures of the Depositary.




          (c) In connection with any transfer or exchange of a portion of the beneficial interest in the
Global Security to beneficial owners pursuant to paragraph (b) above, the Security Registrar shall
(if one or more Physical Securities are to be issued) reflect on its books and records the date and
a decrease in the principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.




          (d) In connection with the transfer of the entire Global Security to beneficial owners
pursuant to paragraph (b) above, the Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Security, an equal aggregate principal amount of Physical Securities of
authorized denominations and the same tenor.



-38-









 







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




     Section 3.10 Cancellation and Transfer Provisions.



          (a) The Company at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Trustee shall cancel and dispose of all
Securities surrendered for registration of transfer, exchange, payment, purchase, conversion
(pursuant to Article 6 hereof) or cancellation in accordance with its customary practices. If the
Company shall acquire any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation. The Securities so acquired, while held by or on behalf
of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the
Securities. The Company may not issue new Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.




          (b) No transfer of a Security to any Person shall be effective under this Indenture or the
Security unless and until such Security has been registered in the name of such Person.
Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global
Security, in whole or in part, shall be made only in accordance with Sections 3.06 and 3.09 and
this Section 3.10.




          (c) The transfer and exchange of beneficial interests in the Global Securities shall be
effected through the Depositary, in accordance with the provisions of this Indenture and the
applicable rules and procedures of the Depositary.




               (i) In connection with all transfers and exchanges of beneficial interests, the transferor of
such beneficial interest must deliver to the Registrar an order from a direct or indirect
participant given to the Depositary directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal to the beneficial interest to be
transferred or exchanged and instructions containing information regarding the account to be
credited with such increase.



          (d) As used in Section 3.10(c), the term “transfer” encompasses any sale, pledge, transfer,
hypothecation or other disposition of any Security.




     The Security Registrar shall retain, in accordance with its customary procedures, copies of
all letters, notices and other written communications received pursuant to this Section 3.10. The
Company shall have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable written notice to the
Security Registrar.



     Section 3.11 CUSIP Numbers. In issuing the Securities, the Company may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no



-39-









 







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 identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.



ARTICLE 4

PARTICULAR COVENANTS




     Section 4.01 Payment of Principal and Interest. The Company covenants and agrees that it shall duly and punctually pay or cause to be paid
the principal of and interest (including Additional Interest, if any), on each of the Securities at
the places, at the respective times and in the manner provided herein and in the Securities.



     Section 4.02 Maintenance of Office or Agency. The Company shall maintain an office or agency in the Borough of Manhattan, the City of New
York, where the Securities may be surrendered for registration of transfer or exchange or for
presentation for payment or for conversion and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency not
designated or appointed by the Trustee. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office,
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.



     The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations.



     The Company will give prompt written notice of any such designation or rescission and of any
change in the location of any such other office or agency.



     The Company hereby initially designates the Trustee as Paying Agent, Security Registrar,
Custodian and Conversion Agent and the Corporate Trust Office shall be considered as one such
office or agency of the Company for each of the aforesaid purposes. The Company may act as Paying
Agent and at any time appoint a new Paying Agent without prior notice to Holders.



     So long as the Trustee is the Security Registrar, the Trustee agrees to mail, or cause to be
mailed, the notices set forth in Section 12.11(a) and the third paragraph of Section 12.12. If
co-registrars have been appointed in accordance with this Section, the Trustee shall mail such
notices only to the Company and the Holders of Securities it can identify from its records.



     Section 4.03 Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 12.11, a Trustee, so that there shall at all times be a
Trustee hereunder.



     Section 4.04 Provisions as to Paying Agent.



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          (a) If the Company shall appoint a Paying Agent other than the Trustee, or if the Trustee
shall appoint such a Paying Agent, the Company will cause such Paying Agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04:




               (i) that it will hold all sums held by it as such agent for the payment of the principal of,
interest (including Additional Interest, if any) on, or the Fundamental Change Purchase Price,
Redemption Price or cash payments made in respect of the Coupon Make Whole Payments of, the
Securities (whether such sums have been paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities;



               (ii) that it will give the Trustee notice of any failure by the Company (or by any other
obligor on the Securities) to make any payment of the principal of or interest (including
Additional Interest, if any) on the Securities when the same shall be due and payable; and



               (iii) that at any time during the continuance of an Event of Default, upon request of the
Trustee, it will forthwith pay to the Trustee all sums so held in trust.



          The Company shall, on or before each due date of the principal of or interest (including
Additional Interest, if any) on the Securities, deposit with the Paying Agent a sum (in funds which
are immediately available on the due date for such payment) sufficient to pay such principal or
interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action; provided, however, that if such deposit is made on the
due date, such deposit shall be received by the Paying Agent by 10:00 a.m., New York City time, on
such date.




          (b) If the Company shall act as its own Paying Agent, it will, on or before each due date or
payment date of the principal of, or interest (including Additional Interest, if any) on, or the
Fundamental Change Purchase Price, Redemption Price or cash payments made in respect of the Coupon
Make Whole Payments of, the Securities, set aside, segregate and hold in trust for the benefit of
the Holders of the Securities a sum sufficient to pay such principal, interest (including
Additional Interest, if any), Fundamental Change Purchase Price, Redemption Price or cash payments
made in respect of the Coupon Make Whole Payments so becoming due and payable and will promptly
notify the Trustee of any failure to take such action and of any failure by the Company (or any
other obligor under the Securities) to make any payment of the principal of, or interest (including
Additional Interest, if any) on, or the Fundamental Change Purchase Price, Redemption Price or cash
payments made in respect of the Coupon Make Whole Payments of, the Securities when the same shall
become due and payable.




          (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any Paying
Agent hereunder as required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent to the Trustee,
the Company or such Paying Agent shall be released from all further liability with respect to such
sums.




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          (d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to Sections 14.03 and 14.04.




     The Trustee shall not be responsible for the actions of any other Paying Agents (including the
Company if acting as its own Paying Agent) and shall have no control of any funds held by such
other Paying Agents.



     Section 4.05 Existence. Subject to Article 11, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and rights (charter and statutory);
provided, however, that the Company shall not be required to preserve any such right if the Company
shall determine that the preservation thereof is no longer desirable in the conduct of the business
of the Company.



     Section 4.06 Maintenance of Properties. The Company will cause all properties used or useful in the conduct of its business or the
business of any Guarantor or any Significant Subsidiary to be maintained and kept in good
condition, repair and working order and will cause to be made all necessary repairs, renewals and
replacements thereof, all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 4.06 shall prevent the Company from discontinuing
the operation or maintenance of any of such properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business or the business of any Subsidiary.



     Section 4.07 Payment of Taxes and Other Claims. The Company will pay or discharge, or cause to be paid or discharged, before the same may
become delinquent, (a) all material taxes, assessments and governmental charges levied or imposed
upon the Company, any Guarantor or any Significant Subsidiary or upon the income, profits or
property of the Company, any Guarantor or any Significant Subsidiary, (b) all material claims for
labor, materials and supplies which, if unpaid, might by law become a lien or charge upon the
property of the Company, any Guarantor or any Significant Subsidiary and (c) all material stamps
and other duties, if any, which may be imposed by the United States, or any political subdivision
thereof, or therein in connection with the issuance, transfer, exchange or conversion of any
Securities or with respect to this Indenture; provided, however, that, in the case of clauses (a)
and (b), the Company shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim if the amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP.



     Section 4.08 [Intentionally Omitted]



     Section 4.09 [Intentionally Omitted]



     Section 4.10 Commission Filings and Reports. Any information, documents or reports that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act must be filed by the Company with
the Trustee within 15 days after the same are required to be filed with the Commission. Documents
filed by the Company with the Commission via the Electronic Data Gathering, Analysis and Retrieval
(EDGAR) system will be deemed to be filed with the Trustee as of the time such documents are filed
via EDGAR.



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     If at any time the Company is not subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will file all reports, if any, as would be required by the
provisions of Section 314(a)(1) of the Trust Indenture Act, with the Trustee.



     Section 4.11 Book-Entry System. If the Securities cease to trade in the Depositary’s book-entry settlement system, the
Company covenants and agrees that it shall use reasonable efforts to make such other book-entry
arrangements that it determines are reasonable for the Securities.



     Section 4.12 Additional Interest. If at any time Additional Interest becomes payable by the Company pursuant to Section
10.03, the Company shall promptly deliver to the Trustee a certificate to that effect and stating
(a) the amount of such Additional Interest that is payable and (b) the date on which such
Additional Interest is payable. Unless and until a Trust Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no Additional Interest is payable. If the
Company has paid Additional Interest directly to the Persons entitled to such Additional Interest,
the Company shall deliver to the Trustee a certificate setting forth the particulars of such
payment.



     Section 4.13 Stay; Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of or interest (including Additional Interest, if any) on the
Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture and 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 had been enacted.



     Section 4.14 Compliance Certificate. The Company shall deliver to the Trustee, within one hundred twenty (120) days after the
end of each fiscal year of the Company, beginning with the fiscal year ended December 31, 2011, an
Officers’ Certificate, stating whether or not to the knowledge of the signer thereof the Company is
or was at all times during the completed fiscal year in compliance with all of the conditions and
covenants of this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and the Security Agreement and, if the Company shall be or was in default,
specifying all such defaults and the nature and the status thereof of which the signer may have
knowledge.



     The Company shall deliver to the Trustee, within 30 days after the Company becomes aware of
the occurrence of any Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, a written notice setting forth the details of such Event of
Default or Default, its status and the action which the Company proposes to take with respect
thereto.



     Any notice required to be given under this Section 4.14 shall be delivered to a Trust Officer
of the Trustee at its Corporate Trust Office.



     Section 4.15 Limitation on Debt and Disqualified or Preferred Stock (a). The Company




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               (1) will not, and will not permit any of its Subsidiaries to, Incur any Debt; and



               (2) will not, and will not permit any Subsidiary to, Incur any Disqualified Stock, and will
not permit any of its Subsidiaries to Incur any Preferred Stock (other than Disqualified Stock or
Preferred Stock of Subsidiaries held by the Company or a Subsidiary, so long as it is so held).



          (b) Notwithstanding the foregoing, the Company and, to the extent provided below, any
Subsidiary may Incur the following (“Permitted Debt”):




               (1) Debt of the Company or any Subsidiary to the Company or any Subsidiary so long as (x) such
Debt continues to be owed to the Company or a Subsidiary, (y) if the obligor is the Company or a
Guarantor and the obligee is not the Company or a Guarantor, such Debt is subordinated in right of
payment to the Securities (it being understood that such subordination need not include payment
blockage rights prior to an insolvency or bankruptcy) and (z) the aggregate principal amount of
Debt owing to the Company and the Guarantors by Subsidiaries that are not Guarantors does not
exceed $5,000,000 at any time outstanding;



               (2) Debt of the Company pursuant to the Securities in an aggregate principal amount not to
exceed
$[•]23 and Debt of any Guarantor pursuant to a Note Guaranty of the Securities;



               (3) Debt (“Permitted Refinancing Debt”) constituting an extension or renewal of, replacement
of or substitution for, or issued in exchange for, or the net proceeds of which are used to repay,
redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for
purposes of this clause, “refinance”) then outstanding Debt, in whole or in part, in an amount not
to exceed the principal amount and accrued interest of the Debt so refinanced, plus premiums,
commissions, costs, fees and expenses; provided that



                    (i) such Debt must be Subordinated Debt; provided that, notwithstanding the foregoing, any
Permitted Refinancing Debt Incurred to refinance the 2013 Notes need not be Subordinated Debt so
long as (x) the principal amount of such Permitted Refinancing Debt does not exceed the principal
amount of the 2013 Notes so refinanced, (y) the Stated Maturity of such Permitted Refinancing Debt
is no earlier than the Stated Maturity of the 2013 Notes and (z) such Permitted Refinancing Debt is
not secured by any Liens on any assets of the Company or any of its Subsidiaries,



                    (ii) in no event may Debt of the Company or any Guarantor be refinanced pursuant to this
clause by means of any Debt of any Subsidiary that is not a Guarantor unless such Subsidiary was an
obligor on the Debt being refinanced, and



                    (iii) Debt Incurred pursuant to clauses (1), (4), (5) and (8) may not be refinanced pursuant
to this clause;





 




			
	23	 	To be determined by 2015 Notes exchange offer.




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               (4) Hedging Agreements of the Company or any Subsidiary entered into in the ordinary course of
business for the purpose of limiting risks associated with the business of the Company and its
Subsidiaries and not for speculation;



               (5) Debt of the Company or any Subsidiary with respect to letters of credit, bank guarantees
and bankers’ acceptances issued in the ordinary course of business, including letters of credit
supporting performance, surety or appeal bonds, and indemnification, adjustment of purchase price
(including earn-outs) or similar obligations incurred in connection with the acquisition or
disposition of any stock, business or assets;



               (6) Acquired Debt in an aggregate principal amount not to exceed $5,000,000 at any time
outstanding less the aggregate outstanding amount of Permitted Refinancing Debt Incurred to
refinance Debt Incurred pursuant to this clause;



               (7) Debt of the Company or any Subsidiary outstanding on the Issue Date (and, for purposes of
clause (3)(iii), not otherwise constituting Permitted Debt);



               (8) Debt of the Company or any Subsidiary, which may include Capital Leases, Incurred on or
after the Issue Date no later than 180 days after the date of purchase or completion of
construction or improvement of property, plant or equipment for the purpose of financing or
refinancing all or any part of the purchase price or cost of design, construction, installation or
improvement of such property, plant or equipment (whether through the direct purchase of assets or
through the purchase of the Equity Interests of a Person that becomes a Subsidiary owning such
assets), provided that the principal amount of any Debt Incurred pursuant to this clause may not
exceed $10,000,000 at any time outstanding;



               (9) Debt of any Foreign Subsidiary;



               (10) Debt constituting an Investment permitted by clause (6) or clause (7) of the definition
of Permitted Investment;



               (11) Subordinated Debt of the Company or any Guarantor;



               (12) any Guarantee (x) by the Company or any Guarantor of any Debt of the Company or any
Guarantor constituting Permitted Debt, (y) by any non-Guarantor Subsidiary of any Debt of the
Company, any Guarantor or any non-Guarantor Subsidiary constituting Permitted Debt and (z)
permitted by clause (7) of the definition of Permitted Investment; provided that, in each case, if
the Debt being Guaranteed is subordinated to the Securities or the Note Guaranties, then the
Guarantee shall be subordinated to the Securities and the Note Guaranties to the same extent as the
Debt so Guaranteed;



               (13) Debt of the Company or any of its Subsidiaries in respect of workers’ compensation claims
and self-insurance obligations incurred in the ordinary course of business;



               (14) Debt of the Company or any of its Subsidiaries to the extent that the net proceeds
thereof are immediately deposited to discharge all of the Securities and this Indenture in
accordance with the provisions of Article 14; and



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               (15) Debt of the Company or any Subsidiary in an aggregate principal amount at any time
outstanding not to exceed $5,000,000.



          (c) Notwithstanding any other provision of this Section 4.15, for purposes of determining
compliance with this Section 4.15, increases in Debt solely due to fluctuations in the exchange
rates of currencies will not be deemed to exceed the maximum amount that the Company or a
Subsidiary may Incur under this Section 4.15. For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal
amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency
exchange rate in effect on the date such Debt was Incurred; provided that if such Debt is Incurred
to refinance other Debt denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such
refinancing Debt does not exceed the principal amount of such Debt being refinanced. The principal
amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the
Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the
currencies in which such respective Debt is denominated that is in effect on the date of such
refinancing.




          (d) In the event that an item of Debt meets the criteria of more than one of the types of Debt
described in this Section 4.15, the Company, in its sole discretion, will classify items of Debt
and will only be required to include the amount and type of such Debt in one of such clauses and
the Company will be entitled to divide and classify an item of Debt in more than one of the types
of Debt described in this Section 4.15, and may change the classification of an item of Debt (or
any portion thereof) to any other type of Debt described in this Section 4.15 at any time. For
purposes of determining any particular amount of Debt described in this Section 4.15, Guarantees in
support of letters of credit supporting Debt shall not be included to the extent such letters of
credit are included in the amount of Debt.




          (e) Accrual of interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discount and the payment of interest or dividends in the form of
additional Debt of the same class will not be deemed to be an Incurrence of Debt for purposes of
this covenant but will be included in subsequent calculations of the amount of outstanding Debt for
purposes of Incurring future Debt.




          (f) Neither the Company nor any Guarantor may Incur any Debt that is subordinate in right of
payment to other Debt of the Company or the Guarantor unless such Debt is also subordinate in right
of payment to the Securities or the relevant Note Guaranty, as the case may be, to the extent and
in the same manner as such Debt is subordinated to other Debt. This does not apply to distinctions
between categories of Debt that exist by reason of any Liens or Guarantees securing or in favor of
some but not all of such Debt otherwise permitted hereunder. The Indenture will not treat (1)
unsecured Debt as subordinated or junior to secured Debt merely because it is unsecured or (2)
senior Debt as subordinated or junior to any other senior Debt merely because it has a junior
priority with respect to the same collateral.




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     Section 4.16 Limitation on Liens. The Company will not, and will not permit any Subsidiary to, incur or permit to exist any
Lien of any nature whatsoever on any of its properties or assets, whether owned at the Issue Date
or thereafter acquired, other than Permitted Liens.



     Section 4.17 Limitation on Asset Sales. The Company will not, and will not permit any Subsidiary to, sell, lease, transfer or
otherwise dispose of any assets of the Company or any Subsidiary (any such sale, lease, transfer or
disposition, a “disposition”), other than:



          (a) any disposition of cash or Cash Equivalents;




          (b) any disposition by the Company to any Guarantor;




          (c) any disposition by any Guarantor to the Company or another Guarantor;




          (d) any disposition by any Subsidiary (other than a Guarantor) to any other Subsidiary or to
the Company;




          (e) any disposition of assets (other than of Intellectual Property) by the Company or any
Guarantor to any Foreign Subsidiary having a Fair Market Value not to exceed $2,000,000 in the
aggregate in any calendar year;




          (f) any disposition of assets by the Company or any Subsidiary (other than a disposition of
Intellectual Property or the Equity Interests of any Guarantor) so long as (i) the Company or such
Subsidiary receives consideration at the time of such disposition at least equal to the Fair Market
Value of the asset disposed of and (ii) no later than 365 days after the receipt of any proceeds
consisting of cash or Cash Equivalents, the Company or such Subsidiary uses such net cash proceeds
from such disposition to make capital expenditures or otherwise acquire Additional Assets; provided
that to the extent the assets disposed of were (or were required to be) Collateral, the assets
acquired shall be pledged as Collateral;




          (g) any disposition (other than a disposition of Equity Interests in a non-Guarantor unless
these interests constitute all or substantially all of the assets of the Company and its
Subsidiaries as an entirety or substantially as an entirety, in one transaction or a series of
related transactions) that constitutes a transaction subject to and made in compliance with the
provisions of Article 11;




          (h) the disposition by the Company or any Subsidiary in the ordinary course of business of (i)
inventory and other assets acquired and held for resale in the ordinary course of business or (ii)
damaged, worn out, surplus or obsolete assets;




          (i) the granting by the Company or any Subsidiary in the ordinary course of business of rights
to others pursuant to leases and non-exclusive licenses;




          (j) the creation of any Lien permitted by the Indenture;




          (k) other than a Restricted Payment or Investment involving a disposition of Intellectual
Property, any Restricted Payment or Investment permitted under Section 4.18;





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          (l) the settlement, waiver, release or surrender of claims or litigation rights of any kind;




          (m) any sale of property to the lessor thereof in connection with a Capital Lease permitted
under Section 4.15;




          (n) any transfer as a result of any condemnation, seizure or taking by exercise of the
power of eminent domain of any property or asset, or confiscation of such property or asset or the
requisition of the use of such property or asset;




          (o) the disposition of the shares of Evergreen Solar (China) Co., Ltd. to the extent required
by Section 5.2 of the Equity Transfer Agreement, dated July 24, 2009, between the Company, Hubei
Science & Technology Investment Co., Ltd. and various parties (as such agreement is in effect on
the Issue Date); and




          (p) the disposition of the shares of Evergreen Solar (China) Co., Ltd. to the extent required
by Section 3.3 or Section 3.4 of the Jiawei Manufacturing Services Agreement or the disposition of
assets of Evergreen Solar (China) Co., Ltd. to the extent required by Section 3.5(c) of the Jiawei
Manufacturing Services Agreement.




     Section 4.18 Limitation on Investments and Restricted Payments. The Company will not, and will not permit any of its Subsidiaries, directly or indirectly,
to (the payments and other actions described in the following clauses, “Restricted Payments”):



          (a) declare or pay any dividend or make any distribution on its Equity Interests (other than
dividends or distributions paid in the Company’s Qualified Equity Interests) held by Persons other
than the Company or any of its Subsidiaries;




          (b) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the
Company or any Subsidiary held by Persons other than the Company or any of its Subsidiaries;




          (c) repay, redeem, repurchase, defease or otherwise acquire or retire for value, or make any
payment on or with respect to any Restricted Debt except regularly scheduled payments of interest
or principal; or




          (d) make any Investment other than a Permitted Investment.



The foregoing will not prohibit:




          (a) so long as no Default of Event of Default exists, any repurchase, redemption, defeasance
or other acquisition or retirement for value of Debt or Disqualified Stock of the Company or any
Subsidiary upon a Fundamental Change to the extent required by the agreement governing
such Debt; provided that the Company has first made an offer to repurchase the Securities as
required under Article 6 and has made any required payments with respect to such offer;



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          (b) the accrual, declaration and payment of dividends or distributions by a Subsidiary, on a
pro rata basis or on a basis more favorable to the Company or to the Subsidiary that is the parent
of such Subsidiary, as the case may be;




          (c) the repurchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Subsidiary of the Company held by any current or former officer,
director, consultant or employee of the Company or any of its Subsidiaries (or permitted
transferees of such current or former officer, director, consultant or employee), pursuant to any
equity subscription agreement, stock option agreement, shareholders’ agreement or similar
agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests in any fiscal year may not exceed $1,000,000; provided further that the
cancellation of Debt owing to the Company or any Subsidiary from any current or former officer,
director, consultant or employee of the Company or any Subsidiary in connection with any such
repurchase, redemption, acquisition or retirement of Equity Interests of the Company or any
Subsidiary of the Company will not be deemed to constitute a Restricted Payment;




          (d) the purchase of fractional shares of Capital Stock of the Company arising out of stock
dividends, splits or combinations or mergers, consolidations or other acquisitions or the payment
of cash in lieu of fractional shares upon the exercise of warrants, options or other securities
convertible into or exercisable for Capital Stock of the Company;




          (e) the repurchase, redemption or other acquisition or retirement for value of any Equity
Interests deemed to occur upon the exercise, exchange or conversion of stock options, warrants or
other similar rights to the extent such Equity Interests represent a portion of the exercise or
exchange price of those stock options, warrants or other similar rights, and the repurchase,
redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes
resulting from the exercise, exchange or conversion of stock options, warrants or other similar
rights;




          (f) payments or distributions to stockholders of a Person acquired by the Company or a
Subsidiary (the shareholders of which are not Affiliates of the Company) pursuant to appraisal or
similar rights required under applicable law in connection with any merger, consolidation or other
acquisition by the Company or any Subsidiary;




          (g) the repayment, redemption, repurchase, defeasance or other acquisition or retirement for
value of Restricted Debt with the proceeds of, or in exchange for, Subordinated Debt;




          (h) the repayment, redemption, repurchase, defeasance or other acquisition or retirement for
value of Restricted Debt in exchange for, or out of the proceeds of, a substantially concurrent
offering of Qualified Equity Interests of the Company;




          (i) in connection with any acquisition by the Company or by any of its Subsidiaries, the
receipt or acceptance of the return to the Company or any of its Subsidiaries of Capital Stock of
the Company or any Subsidiaries constituting a portion of the purchase price
consideration in settlement of indemnification claims or as a result of a purchase price
adjustment (including earn-outs and similar obligations);




          (j) the distribution of rights pursuant to any customary shareholder rights plan or the
redemption of such rights in accordance with the terms of any such shareholder rights plan; and




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          (k) the repayment, redemption, repurchase or other acquisition or retirement for value of the
2013 Notes with the net cash proceeds from the issuance of the 2015 Notes or the net cash proceeds
of Permitted Refinancing Debt.




     Section 4.19 Additional Note Guaranties; Maintenance of Guarantors. If (i) the Company or any of its Subsidiaries acquires or creates a Wholly Owned Domestic
Subsidiary (other than any such Subsidiary that is an Excluded Subsidiary) or (ii) any Wholly Owned
Domestic Subsidiary that is an Excluded Subsidiary ceases to be an Excluded Subsidiary, such Wholly
Owned Domestic Subsidiary must provide a Note Guaranty within 30 days after such acquisition or
creation or after the date on which such Subsidiary ceases to be an Excluded Subsidiary, as the
case may be.



     The Company shall not, and shall not permit any of its Subsidiaries to, take any action that
results or would result in any Guarantor ceasing to be a Wholly Owned Domestic Subsidiary.



     Section 4.20 Payments for Consent. The Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture, the Securities, the Note Guaranties or the Collateral
Documents, unless such consideration is offered to be paid or agreed to be paid to all Holders of
the Securities that consent, waive or agree to amend such term or provision within the time period
set forth in the solicitation documents relating to the consent, waiver or amendment.



ARTICLE 5

PURCHASE AT OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE




     Section 5.01 Purchase at Option of Holders upon a Fundamental Change.



          (a) Generally. If a Fundamental Change occurs at any time prior to the Maturity Date of the
Securities, then each Holder shall have the right (the “Fundamental Change Purchase Right”), at
such Holder’s option, to require the Company to purchase all of such Holder’s Securities, or any
portion thereof that is equal to $1,000 or an integral multiple of $1,000 principal amount, on a
date specified by the Company that is not less than 20 Business Days nor more than 35 Business Days
after the date of the Fundamental Change Notice (as defined below), subject to extension to comply
with applicable law (the “Fundamental Change Purchase Date”), at a purchase price in cash equal to
100% of the principal amount of the Securities to be purchased plus accrued and
unpaid interest thereon (including Additional Interest, if any) to, but excluding, the
Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”), subject to the
satisfaction by the Holder of the requirements set forth in Section 5.01(c); provided, however, if
the Fundamental Change Purchase Date occurs after a Regular Record Date and on or prior to the
Interest Payment Date to which it relates, the Company will pay the full amount of accrued and
unpaid interest (including Additional Interest, if any) due on such Interest Payment Date to the
Holder of record as of the corresponding Regular Record Date, and the Fundamental Change Purchase
Price payable to the Holder of such Security will be 100% of the principal amount of such Security.




          (b) Delivery of Fundamental Change Notice. On or before the 20th calendar day after the
occurrence of a Fundamental Change, and promptly following any extension of the Fundamental Change
Purchase Date to comply with applicable law, the Company shall provide or



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cause to be provided to
all Holders of record of the Securities on the date of the Fundamental Change at their addresses
shown in the Security Register a written notice containing the information set forth in Section
5.02 (the “Fundamental Change Notice”) with respect to such Fundamental Change and the resulting
Fundamental Change Purchase Right. The Company shall also deliver a copy of the Fundamental Change
Notice to the Trustee, the Conversion Agent and the Paying Agent at such time as it is mailed to
Holders of Securities. Simultaneously with providing such Fundamental Change Notice, the Company
shall promptly publicly announce the relevant information through a reputable national newswire in
the United States and make such information available on the Company Website.




     No failure of the Company to give the foregoing notices and no defect therein shall limit any
Holder’s purchase rights or affect the validity of the proceedings for the purchase of the
Securities pursuant to this Section 5.01.



          (c) Delivery of Fundamental Change Purchase Notice. If a Holder wishes to exercise the
Fundamental Change Purchase Right with respect to all or any portion of its Securities, the Holder
must deliver to the Paying Agent, at any time after the occurrence of the Fundamental Change and
prior to the Close of Business on the Business Day immediately preceding the Fundamental Change
Purchase Date,




               (i) a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth
on Exhibit A hereto (provided that if a Holder holds a beneficial interest in a Global
Security instead of Physical Securities, the Holder’s notice must comply with the appropriate
procedures of the Depositary and its direct and indirect participants), which must specify:



                    (A) if the Securities are Physical Securities, the certificate numbers of the Holder’s
Securities to be delivered for purchase;



                    (B) the portion of the principal amount of the Holder’s Securities to be purchased, which must
be $1,000 or an integral multiple thereof; and



                    (C) that the Holder’s Securities are to be purchased by the Company pursuant to this Section
5.01;



               (ii) delivery or book-entry transfer of the Securities to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice
(together with all necessary endorsements) at the applicable Corporate Trust Office of the Trustee
(or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the
Holder of the Fundamental Change Purchase Price therefor; provided that such Fundamental Change
Purchase Price shall be so paid pursuant to this Section 5.01 only if the Securities so delivered
to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to
the description thereof in the related Fundamental Change Purchase Notice and no written notice of
withdrawal in accordance and complying with Section 5.03 shall have been received by the Paying
Agent at any time prior to the Close of Business on the Business Day immediately preceding the
Fundamental Change Purchase Date.



-51-









 





     All questions as to the validity, eligibility (including time of receipt) and acceptance of
Securities for purchase shall be determined by the Company, whose determination shall be final and
binding absent manifest error.



          (d) The Company shall purchase from the Holder thereof, pursuant to this Section 5.01, a
portion of a Security, if the principal amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the purchase of all of a Security shall apply
to the purchase of such portion of such Security.




          (e) The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Purchase Notice or written notice of withdrawal thereof.




          (f) No Payment During Events of Default. Notwithstanding the foregoing, no Securities may be
purchased by the Company at the option of the Holders upon a Fundamental Change pursuant to this
Section 5.01 if an Event of Default has occurred and is continuing other than an Event of Default
that is cured by the payment of the Fundamental Change Purchase Price on the Fundamental Change
Purchase Date.




     Any purchase by the Company contemplated pursuant to the provisions of this Section 5.01 shall
be consummated by the delivery to the Paying Agent of the consideration to be received by the
Holder promptly following the later of the Fundamental Change Purchase Date or the time of the
book-entry transfer or delivery of the Securities.



     Section 5.02 Fundamental Change Notice. In connection with any purchase of Securities pursuant to Section 5.01, the Fundamental
Change Notice shall:



               (i) state the Fundamental Change Purchase Price and the Fundamental Change Purchase Date to
which the Fundamental Change Notice relates;



               (ii) state the event constituting the Fundamental Change and the effective date of the
Fundamental Change;



               (iii) state that the Fundamental Change Purchase Price will be paid in cash;



               (iv) state that Holders must exercise their Fundamental Change Purchase Right prior to the
Close of Business on the Business Day immediately preceding the Fundamental Change Purchase Date;



               (v) state the name and address of the Paying Agent;



               (vi) state that Securities must be surrendered to the Paying Agent to collect the Fundamental
Change Purchase Price;



               (vii) state the Applicable Conversion Rate and, if applicable, any adjustments to the
Applicable Conversion Rate and expected changes in cash, shares or other property deliverable upon
conversion of the Securities as a result of the occurrence of the Fundamental Change;



-52-









 





               (viii) state that a Holder may withdraw its Fundamental Change Purchase Notice in whole or in
part at any time prior to the Close of Business on the Business Day immediately preceding the
Fundamental Change Purchase Date by delivering a valid written notice of withdrawal to the Paying
Agent in accordance with Section 5.03;



               (ix) state that Securities as to which a Fundamental Change Purchase Notice has been given may
be converted only if the Fundamental Change Purchase Notice is withdrawn in accordance with the
terms of this Indenture;



               (x) state the amount of interest accrued and unpaid per $1,000 principal amount of Securities
to, but excluding, the Fundamental Change Purchase Date; and



               (xi) state the CUSIP number(s) of the Securities.



     A Fundamental Change Notice may be given by the Company or, at the Company’s request, the
Trustee shall give such Fundamental Change Notice in the Company’s name and at the Company’s
expense; provided, that the text of the Fundamental Change Notice shall be prepared by the Company.



     In connection with any purchase pursuant to exercise of the Fundamental Change Purchase Right,
the Company will, to the extent required, (i) comply with the provisions of Rule 13e-4, Rule 14e-1
(or any successor provision) and any other tender offer rules under the Exchange Act that may be
applicable at the time of the purchase of the Securities, (ii) file the related Schedule TO (or any
successor schedule, form or report) or any other schedule required in connection with any offer by
the Company to purchase the Securities under the Exchange Act and (iii) otherwise comply with all
federal and state securities laws so as to permit the rights and obligations under Section 5.01 to
be exercised in the time and in the manner specified in Section 5.01.



     Notwithstanding the foregoing, the Company will not be required to make an offer to purchase
the Securities after the Maturity Date.



     No failure of the Company to give the foregoing notices and no defect therein shall limit any
Holder’s purchase rights or affect the validity of the proceedings for the purchase of the
Securities pursuant to Section 5.01.



     Section 5.03 Effect of Fundamental Change Purchase Notice; Withdrawal.



          (a) Upon receipt by the Paying Agent of the Fundamental Change Purchase Notice specified in
Section 5.01, the Holder of the Securities in respect of which such Fundamental Change Purchase
Notice was given shall (unless such Fundamental Change Purchase Notice is validly withdrawn in
accordance with the following paragraph) thereafter be entitled to receive solely the Fundamental
Change Purchase Price with respect to such Securities. Such Fundamental Change Purchase Price
shall be paid to such Holder, subject to receipt of funds and/or the Securities by the Paying
Agent, promptly following the later of (x) the Fundamental Change Purchase Date with respect to
such Securities (provided the Holder has satisfied the conditions in Section 5.01) and (y) the time
of book-entry transfer or delivery of such Securities, together with necessary endorsements, to the
Paying Agent by the



-53-









 






Holder thereof in the manner required by Section 5.01. The Securities in
respect of which a Fundamental Change Purchase Notice has been given by the Holder thereof may not
be converted pursuant to Article 6 hereof on or after the date of delivery of such Fundamental
Change Purchase Notice unless such Fundamental Change Purchase Notice has first been validly
withdrawn.




          (b) A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a
written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental
Change Notice at any time prior to the Close of Business on the Business Day immediately preceding
the Fundamental Change Purchase Date (provided that if a Holder holds a beneficial interest in a
Global Security instead of Physical Securities, the Holder’s notice must comply with the
appropriate procedures of the Depositary and its direct and indirect participants), specifying:




               (i) if the Securities are Physical Securities, the certificate numbers of the withdrawn
Securities;



               (ii) the principal amount of the Securities with respect to which notice of withdrawal is
being submitted, which must be in $1,000 or integral multiples thereof; and



               (iii) the principal amount, if any, of such Securities which remains subject to the original
Fundamental Change Purchase Notice, which must be $1,000 or integral multiples thereof.



     If a Fundamental Change Purchase Notice is properly withdrawn, the Company shall not be
obligated to purchase the Securities listed on the Fundamental Change Purchase Notice.



     Section 5.04 Deposit of Fundamental Change Purchase Price. No later than 10:00 a.m., New York City time, on the Fundamental Change Purchase Date, the
Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein)
an amount of money (in immediately available funds if deposited on such Fundamental Change Purchase
Date) sufficient to pay the Fundamental Change Purchase Price, of all the Securities or portions
thereof that are to be purchased as of the Fundamental Change Purchase Date. The Company shall
promptly notify the Trustee in writing of the amount of any deposits of cash made pursuant to this
Section 5.04.



     If on the Fundamental Change Purchase Date the Paying Agent holds cash sufficient to pay the
Fundamental Change Purchase Price of the Securities that Holders have elected to require the
Company to purchase in accordance with Section 5.01, then, as of the Fundamental Change Purchase
Date, (a) such Securities will cease to be outstanding and interest, including Additional Interest
if any, will cease to accrue thereon and (b) all other rights of Holders in respect of such
Securities will terminate (other than the right to receive the Fundamental Change Purchase Price
upon delivery or transfer of such Security). This will be the case whether book-entry transfer of
the Securities has been made or the Securities have been delivered to the Paying Agent, as the case
may be.



     Section 5.05 Securities Purchased in Whole or in Part. Any Security that is to be purchased, whether in whole or in part, shall be surrendered at
the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such



-54-









 







Holder’s attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion
of the principal amount of the Security so surrendered which is not purchased; provided that in no
event shall a Security of a principal amount of $1,000 or less be purchased in part.



     Section 5.06 Repayment to the Company. The Paying Agent shall return to the Company any cash that remains unclaimed, together with
interest (including Additional Interest, if any) or dividends, if any, thereon, held by them for
the payment of the Fundamental Change Purchase Price; provided that to the extent that the
aggregate amount of cash deposited by the Company pursuant to Section 5.04 exceeds the aggregate
Fundamental Change Purchase Price of the Securities or portions thereof which the Company is
obligated to purchase as of the Fundamental Change Purchase Date, then as soon as practicable
following the Fundamental Change Purchase Date, the Paying Agent shall return any such excess to
the Company.



ARTICLE 6

CONVERSION




     Section 6.01 Right to Convert.



     (a) Subject to and upon compliance with the provisions of this Indenture (including Section
6.16), each Holder shall have the right, at such Holder’s option, at any time prior to the Close of
Business on the Business Day immediately preceding the Maturity Date, to convert the principal
amount of such Holder’s Securities, or any portion of such principal amount which is $1,000 or an
integral multiple thereof, into shares of Common Stock.



     (b) Notwithstanding the foregoing, if a Holder of Securities has submitted Securities for
purchase under Section 5.01, the Holder may convert such Securities only if the Holder first
withdraws its Fundamental Change Purchase Notice pursuant to Section 5.03.



     (c) Provisions of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.



     (d) A Holder of Securities is not entitled to any rights of a holder of Common Stock until
such Holder has converted its Securities, and only to extent such Securities are deemed to have
been converted into shares of Common Stock pursuant to this Article 6.



     Section 6.02 Conversion Procedure.



          (a) Each Security shall be convertible at the office of the Conversion Agent.




          (b) In order to exercise the conversion right with respect to any interest in Global
Securities, the Holder must complete the appropriate instruction form for conversion pursuant to
the Depositary’s book-entry conversion program, furnish appropriate endorsements and transfer
documents if required by the Company or the Trustee or Conversion Agent, and pay any transfer taxes
if required pursuant to Section 6.08. In order to exercise the conversion right with respect to
any Physical Securities, the Holder of any such Securities to be converted, in whole or in part,
shall:



-55-









 







               (i) complete and manually sign the conversion notice provided on the back of the Security (the
“Conversion Notice”) or facsimile of the conversion notice;



               (ii) deliver the Conversion Notice, which is irrevocable, and the Security to a Conversion
Agent;



               (iii) if required, furnish appropriate endorsements and transfer documents; and



               (iv) if required, pay any transfer taxes, duties or similar taxes payable by such Holder.



     The date on which the Holder satisfies all of the applicable requirements set forth above is
the “Conversion Date.”



          (c) As soon as practicable, but in any event (i) in the case of a voluntary conversion by a
Holder, within three Business Days of the relevant Conversion Date and (ii) in the case of a
Mandatory Conversion at the Company’s election pursuant to Section 6.09, on the Mandatory
Conversion Date specified in the Company Conversion Notice, the Company shall issue and shall
deliver to the Holder at the office of the Conversion Agent, a certificate or certificates for the
number of full shares of Common Stock issuable in respect of such conversion in accordance with the
provisions of this Article 6. In case any Securities of a denomination greater than $1,000 shall
be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of the Securities so surrendered, without charge to such Holder, new
Securities in authorized denominations in an aggregate principal amount equal to the unconverted
portion of the surrendered Securities.




     Each conversion shall be deemed to have been effected as to any Securities (or portion
thereof) converted in a voluntary conversion by a Holder immediately prior to the Close of Business
on the date on which the requirements set forth above in Section 6.02(b) have been satisfied as to
such Securities (or portion thereof), or immediately prior to the Close of Business on the
Mandatory Conversion Date for conversions pursuant to Section 6.09; provided, however, that the
person in whose name any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become as of the relevant Conversion Date or the
Mandatory Conversion Date, as the case may be, the Holder of record of the shares of Common Stock
represented thereby; provided further, that in case of any such surrender on any date when the
share transfer books of the Company shall be closed, the person or persons in whose name the
certificate or certificates for such shares are to be issued shall be deemed to have become the
record Holder thereof for all purposes on the next day on which such share transfer books are open,
but such conversion shall be at the Conversion Rate in effect on the date upon which such
Securities shall be surrendered.



          (d) Upon the conversion of an interest in Global Securities, the Trustee (or other Conversion
Agent appointed by the Company) shall make a notation on such Global Securities as to the reduction
in the principal amount represented thereby. The Company shall notify the Trustee in writing of
any conversions of Securities effected through any Conversion Agent other than the Trustee.



-56-









 







     Section 6.03 Settlement upon Conversion.



          (a) Settlement upon conversion will be solely in shares of Common Stock (other than cash in
lieu of fractional shares and cash payments made in respect of the Coupon Make Whole Payments
pursuant to Sections 6.07 and 6.10 and accrued and unpaid interest upon conversion pursuant to this
Section 6.03). With respect to the aggregate principal amount of Securities to be converted, the
Company shall, subject to the provisions of this Article 6, deliver to converting Holders, in
respect of each $1,000 principal amount of Securities being converted, a number of shares of Common
Stock equal to the Applicable Conversion Rate; provided that the Company will deliver cash in lieu
of fractional shares in accordance with Section 6.03(d). If the Company delivers shares in respect
of the Coupon Make Whole Payment, if any, the number of shares to be delivered will be determined
in accordance with Sections 6.07 and 6.10, as applicable.




          (b) Upon any conversion on or prior to April 15, 2015, Holders shall not receive any separate
cash payment for accrued and unpaid interest (including Additional Interest, if any) in connection
with the conversion of any Securities unless the Conversion Date or the Mandatory Conversion Date,
as the case may be, occurs after the Close of Business on a Regular Record Date for the payment of
interest but prior to the Open of Business on the related Interest Payment Date, in which case
Holders of such converted Securities at the Close of Business on such Regular Record Date will
receive the interest (including Additional Interest, if any) payable on such Securities on the
corresponding Interest Payment Date notwithstanding the conversion.




          (c) Upon any conversion after April 15, 2015, on the Conversion Date or Mandatory Conversion
Date, as the case may be, Holders shall receive a separate cash payment for accrued and unpaid
interest (including Additional Interest, if any) through and including the Conversion Date or
Mandatory Conversion Date, as the case may be; provided that if the Conversion Date or the
Mandatory Conversion Date, as the case may be, occurs after the Close of Business on a Regular
Record Date for the payment of interest but prior to the Open of Business on the related Interest
Payment Date, Holders of such Securities at the Close of Business on such Regular Record Date will
receive the interest (including Additional Interest, if any) payable on such Securities on the
corresponding Interest Payment Date notwithstanding the conversion.




          (d) The Company shall not issue fractional shares upon conversion of Securities. If multiple
Securities shall be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion (and the number of fractional shares, if any, for
which cash shall be delivered) shall be computed on the basis of the aggregate principal amount of
the Securities (or specified portions thereof to the extent permitted hereby) so surrendered. If
any fractional share would be issuable upon the conversion of any Securities, the Company shall pay
the converting Holder an amount in cash for the current market value of the fractional shares. The
current market value of a fractional share shall be determined (calculated to the nearest 1/1000th
of a share) by multiplying the Last Reported Sale Price of the Common Stock on the relevant
Conversion Date or Mandatory Conversion Date, as the case may be, by such fractional share and
rounding the product to the nearest whole cent.




          (e) By delivery to the Holder of the full number of shares of Common Stock issuable upon
conversion (including shares issued to satisfy the Coupon Make Whole Payments, if any), together
with accrued and unpaid interest (and Additional Interest, if any) pursuant to this


-57-









 







Section 6.03,
any cash in lieu of fractional shares and cash payments made in respect of the Coupon Make Whole
Payments, if any, pursuant to Sections 6.07 and 6.10, the Company will be deemed to satisfy in full
its obligation to pay the principal amount of the Securities and all accrued and unpaid interest
(and Additional Interest, if any) with respect to the converted Securities. Upon conversion of the
Securities, all accrued and unpaid interest (and Additional Interest, if any) will be deemed to be
paid in full rather than canceled, extinguished or forfeited, unless such conversion occurs after
the Close of Business on a Regular Record Date and prior to the Open of Business on the Interest
Payment Date to which it relates, in which case such payment shall be made to the Holder of the
converted Securities as of the Close of Business on the Regular Record Date.




     Section 6.04 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:



          (a) In case the Company shall, at any time or from time to time while any of the Securities
are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, in each case, to all or substantially all holders of Common Stock, the Conversion
Rate will be adjusted based on the following formula:









where



	 	 	 	 	 	 	 

	 

	 	CR0
	 	=
	 	the Conversion Rate in effect at the Close of Business on the Trading Day
immediately preceding the Ex-Dividend Date for such dividend or distribution;
	 
	 	 	 	 	 	 
	 

	 	CR1
	 	=
	 	the Conversion Rate in effect on the Ex-Dividend Date for such dividend or
distribution;
	 
	 	 	 	 	 	 
	 

	 	OS0
	 	=
	 	the number of shares of Common Stock outstanding at the Close of Business
on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or
distribution; and
	 
	 	 	 	 	 	 
	 

	 	OS1
	 	=
	 	the number of shares of Common Stock that would be outstanding immediately
after, and solely as a result of, such dividend or distribution.






     Any adjustment made pursuant to this Section 6.04(a) shall become effective immediately prior
to the Open of Business on the Ex-Dividend Date for such dividend or distribution. If any dividend
or distribution that is the subject of this Section 6.04(a) is declared but not so paid or made,
the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces
its decision not to make such dividend or distribution, to the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared. For purposes of this Section
6.04(a), the number of shares of Common Stock outstanding at the Close of Business on the Trading
Day immediately preceding the Ex-Dividend Date for such dividend or distribution shall not include
shares of Common Stock held in treasury, if any. The Company will not pay any dividend or make any
distribution on Common Stock held in treasury, if any.




-58-












 





          (b) In case outstanding shares of Common Stock shall be subdivided into a greater number
of shares of Common Stock or combined into a smaller number of shares of Common Stock, the
Conversion Rate will be adjusted based on the following formula:









     where



	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect at the Close of Business on the Trading Day
immediately preceding the effective date of such subdivision or combination;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect on the effective date of such subdivision or
combination;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding at the Close of Business
on the Trading Day immediately preceding the effective date of such subdivision or
combination; and
	 
	 	 	 	 
	OS1

	 	=
	 	the number of shares of Common Stock that would be outstanding immediately
after, and solely as a result of, such subdivision or combination.






     Any adjustment made pursuant to this Section 6.04(b) shall become effective immediately prior
to the Open of Business on the effective date of such subdivision or combination.



          (c) In case the Company shall issue rights (other than rights issued pursuant to a stockholder
rights plan) or warrants to all or substantially all holders of Common Stock entitling them to
purchase, for a period expiring within 45 calendar days of the date of announcement, Common Stock
at an aggregate price per share less than the average of the Last Reported Sale Prices of the
Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately
preceding the date that the issuance of the rights or warrants was first publicly announced, the
Conversion Rate will be adjusted based on the following formula:








     where



	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect at the Close of Business on the Trading Day
immediately preceding the Ex-Dividend Date for such issuance;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect on the Ex-Dividend Date for such issuance;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding at the Close of Business
on the Trading Day immediately preceding the Ex-Dividend Date for such issuance;






-59-









 






	 	 	 	 	 

	X

	 	=
	 	the total number of shares of Common Stock issuable pursuant to such rights
or warrants; and
	 
	 	 	 	 
	Y

	 	=
	 	the number of shares of Common Stock equal to the quotient of (x) the
aggregate price payable to exercise such rights or warrants divided by (y) the average
of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading
Day period ending on the Trading Day immediately preceding the date such issuance was
first publicly announced.






     Any adjustment made pursuant to this Section 6.04(c) shall become effective immediately prior
to the Open of Business on the Ex-Dividend Date for such issuance. In the event that such rights
or warrants described in this Section 6.04(c) are not so issued, the Conversion Rate shall be
readjusted, effective as of the date the Company publicly announces its decision not to issue such
rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not
been declared. To the extent that such rights or warrants are not exercised prior to their
expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or
warrants upon the exercise of such rights or warrants, the Conversion Rate shall be readjusted to
the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered. In determining the aggregate price payable to exercise such rights or
warrants, there shall be taken into account any consideration received by the Company for such
rights or warrants and the value of such consideration (if other than cash, to be determined by the
Company’s Board of Directors). For purposes of this Section 6.04(c), the number of shares of
Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the
Ex-Dividend Date for such issuance shall not include shares of Common Stock held in treasury, if
any. The Company will not issue any rights or warrants in respect of shares of Common Stock held
in treasury, if any.



          (d) In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its outstanding Common Stock, shares of the Company’s Capital Stock, evidences of
the Company’s indebtedness or assets, including securities, but excluding:



               (i) any dividends or distributions referred to in Section 6.04(a) above;



               (ii) shares delivered in connection with subdivisions of Common Stock referred to in Section
6.04(b) above;



               (iii) any rights or warrants referred to in Section 6.04(c) above;



               (iv) any rights or warrants referred to in the last paragraph of this Section 6.04(d) below
(to the extent and as specified therein);



               (v) any dividends or distributions referred to in Section 6.04(e) below; and



               (vi) any Public Spin-Offs to which the provisions set forth below in this Section 6.04(d)
applies,


then for these non-excluded transactions and events, the Conversion Rate will be adjusted based on
the following formula:







-60-









 













     where




	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect at the Close of Business on the Trading Day
immediately preceding the Ex-Dividend Date for such distribution;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect on the Ex-Dividend Date for such
distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock during the
10 consecutive Trading Day period ending on the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and
	 
	 	 	 	 
	FMV

	 	=
	 	the Fair Market Value (as determined by the Company’s Board of Directors) on
the Ex-Dividend Date for such distribution of shares of the Company’s Capital Stock,
evidences of the Company’s indebtedness or assets, including securities, so
distributed, expressed as an amount per share of Common Stock.






     If the transaction that gives rise to an adjustment pursuant to this Section 6.04(d) is,
however, one pursuant to which the payment of a dividend or other distribution on Common Stock
consists of shares of Capital Stock of any class or series of, or similar equity interests in, a
Subsidiary or other business unit of the Company (i.e. a “spin-off”) that are, or when issued, will
be, traded or listed on The Nasdaq Stock Market, the New York Stock Exchange or any other U.S.
national securities exchange or market (a “Public Spin-Off”), the Conversion Rate will be adjusted
based on the following formula:








     where



	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect at the Close of Business on the Trading Day
immediately preceding the Ex-Dividend Date for such distribution;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect on the Ex-Dividend Date for such
distribution;
	 
	 	 	 	 
	FMV0

	 	=
	 	the average of the Last Reported Sale Prices of the Capital Stock or
similar equity interests distributed in the Public Spin-Off to holders of Common Stock
applicable to one share of Common Stock during the 10 consecutive Trading Day
period commencing on and including the effective date of the Public Spin-Off (the
“Public Spin-Off Valuation Period”); and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock during the
Public Spin-Off Valuation Period.






     Any adjustment made pursuant to this Section 6.04(d) shall become effective immediately prior
to the Open of Business on the Ex-Dividend Date for such distribution. If any dividend or
distribution of the type described in this Section 6.04(d) is declared but not so paid or made, the



-61-









 







Conversion Rate shall be readjusted, effective as of the date the Company publicly announces its
decision not to pay such dividend or distribution, to the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared. If an adjustment to the Conversion
Rate is required pursuant to this Section 6.04(d) during any settlement period in respect of
Securities that have been tendered for conversion, delivery of the related conversion consideration
will be delayed to the extent necessary in order to complete the calculations provided for in this
Section 6.04(d).



     For purposes of this Section 6.04(d), rights or warrants distributed by the Company to all or
substantially all holders of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company’s Capital Stock (either initially or under certain circumstances),
which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and
(iii) are also issued in respect of future issuances of shares of Common Stock, shall be deemed not
to have been distributed for purposes of this Section 6.04(d) (and no adjustment to the Conversion
Rate under this Section 6.04(d) will be required) until the occurrence of the earliest Trigger
Event, whereupon such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section
6.04(d), except as set forth in Section 6.14. If any such rights or warrants are subject to
events, upon the occurrence of which such rights or warrants become exercisable to purchase or
exchangeable for additional or different securities, evidences of indebtedness or other assets,
then the date of the occurrence of any and each such event shall be deemed to be the date of
distribution and Trigger Event with respect to new rights or warrants with such rights (and a
termination or expiration of the existing rights or warrants to the extent not exercised by any of
the holders thereof), except as set forth in Section 6.14. In addition, except as set forth in
Section 6.14, in the event of any distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding sentence) with respect
thereto that was counted for purposes of calculating a distribution amount for which an adjustment
to the Conversion Rate under this Section 6.04(d) was made (including any adjustment contemplated
by Section 6.14), (1) in the case of any such rights or warrants that shall all have been redeemed
or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted
upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as
the case may be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrant that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been issued.



          (e) In case the Company shall pay a dividend or otherwise distribute to all or substantially
all holders of Common Stock a dividend or other distribution consisting exclusively of cash
(excluding any dividend or distribution made in connection with the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary), the Conversion Rate will be adjusted
based on the following formula:








     where



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	CR0

	 	=
	 	the Conversion Rate in effect at the Close of Business on the Trading Day
immediately preceding the Ex-Dividend date for such dividend or distribution;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect on the Ex-Dividend Date for such dividend or
distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock during the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such dividend or distribution; and
	 
	 	 	 	 
	C

	 	=
	 	the amount in cash per share of Common Stock the Company pays as a dividend
or otherwise distributes to holders of Common Stock.






     Any adjustment made pursuant to this Section 6.04(e) shall become effective immediately prior
to the Open of Business on the Ex-Dividend Date for such dividend or distribution. If any dividend
or distribution of the type described in this Section 6.04(e) is declared but not so paid or made,
the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces
its decision not to pay such dividend or distribution, to the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared.



          (f) In case of purchases of Common Stock pursuant to a tender offer or exchange offer made by
the Company or any Subsidiary of the Company for all or any portion of Common Stock, to the extent
that the Fair Market Value of cash and any other consideration included in the payment per share of
Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day
immediately after the last date on which tenders or exchanges may be made pursuant to such tender
offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be
adjusted based on the following formula:








     where



	 	 	 	 	 

	CR0

	 	=
	 	the Conversion Rate in effect at the Close of Business on the Expiration
Date;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect on the Trading Day immediately following the
Expiration Date;
	 
	 	 	 	 
	AC

	 	=
	 	the Fair Market Value (as determined by the Company’s Board of Directors), on
the Expiration Date, of the aggregate value of all cash and any other consideration
paid or payable for Common Stock validly tendered or exchanged and not withdrawn as of
the Expiration Date;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately before the
last time tenders or exchanges may be made pursuant to such tender offer or exchange
offer (the “Expiration Time”) (prior to giving effect to such tender or exchange
offer);






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	OS1

	 	=
	 	the number of shares of Common Stock outstanding immediately after the
Expiration Time (after giving effect solely to such tender or exchange offer); and
	 
	 	 	 	 
	SP1

	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock during the
10 consecutive Trading Day period commencing on, and including, the Trading Day
immediately after the Expiration Date.






     Any adjustment pursuant to this Section 6.04(f) shall become effective immediately prior to
the Open of Business on the 10th Trading Day from, and including, the Trading Day
immediately after the Expiration Date. In the event that the Company, or one of its Subsidiaries,
is obligated to purchase Common Stock pursuant to any such tender or exchange offer, but the
Company, or such Subsidiary, is permanently prevented by applicable law from effecting any such
purchases, or all such purchases are rescinded, then the Conversion Rate shall be readjusted to be
the Conversion Rate that would then be in effect if such tender or exchange offer had not been
made. Except as set forth in the preceding sentence,
if the application of this Section 6.04(f) to
any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment
shall be made for such tender offer or exchange offer under this Section 6.04(f). If an adjustment
to the Conversion Rate is required pursuant to this Section 6.04(f) during any settlement period in
respect of Securities that have been tendered for conversion, then delivery of the related
conversion consideration will be delayed to the extent necessary in order to complete the
calculations provided for in this Section 6.04(f).



          (g) If the Company distributes to holders of Common Stock assets, including cash, Capital
Stock, evidences of indebtedness, securities or rights, warrants or options to purchase its
securities, other than with respect to a Public Spin-Off, as to which Sections 6.04(d) and 6.04(e)
apply, if the Fair Market Value of the assets, including cash, Capital Stock, evidences of
indebtedness, securities or rights, warrants or options so distributed applicable to one share of
Common Stock equals or exceeds the average of the Last Reported Sale Prices of the Common Stock
during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the
Ex-Dividend Date for such distribution, rather than being entitled to an adjustment in the
Conversion Rate, the Holder of a Security will be entitled to receive upon conversion, in addition
to shares of Common Stock, and, if applicable, cash payable on conversion, the kind and amount of
assets, including cash, Capital Stock, evidences of indebtedness, securities or rights, warrants or
options to purchase the Company’s securities, as applicable, that such Holder would have received
if such Holder had converted such Security immediately prior to the record date for determining the
stockholders entitled to receive the distribution (without regard to any limitations on conversion
described in Section 6.16).



          (h) In addition to those Conversion Rate adjustments required by Section 6.04(a), 6.04(b),
6.04(c), 6.04(d), 6.04(e) and 6.04(f), to the extent permitted by applicable law and subject to the
applicable rules of The Nasdaq Stock Market or the applicable rules of any stock exchange on which
the Company’s Common Stock is listed at the relevant time, the Company from time to time may
increase the Conversion Rate by a specified amount for a period of at least 20 Business Days, if
the increase is irrevocable during the period and the Company’s Board of Directors shall have made
a determination that such increase would be in the interest of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding
sentence,



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the Company shall mail to Holders of Record of the Securities a notice of increase, which
notice will be given at least 15 calendar days prior to the effective date of any such increase,
and such notice shall state the increased Conversion Rate and the period during which it will be in
effect.



     To the extent permitted by applicable law and subject to the applicable rules of The Nasdaq
Stock Market or the applicable rules of any stock exchange on which the Common Stock is listed at
the relevant time, the Company may also (but is not required to) to make such increases to the
Conversion Rate, in addition to those required by Section 6.04(a), 6.04(b), 6.04(c), 6.04(d),
6.04(e) and 6.04(f), as the Company’s Board of Directors deems advisable to avoid or diminish any
income tax to holders of Common Stock resulting from any dividend or distribution of Common Stock
(or rights to acquire Common Stock) or from any event treated as such for income tax purposes.



          (i) All calculations under this Article 6 shall be made by the Company and not by the Trustee
or Conversion Agent, and shall be made to the nearest one-ten thousandth (1/10,000th) of a share of
Common Stock. No adjustment need be made for rights to purchase Common Stock pursuant to a Company
plan for reinvestment of dividends or for any issuance of Common Stock or convertible or
exchangeable securities or, except as provided in this Section 6.04, rights to purchase Common
Stock or convertible or exchangeable securities.



          (j) Whenever the Conversion Rate is adjusted as herein provided, the Company will promptly
publicly announce through a reputable national newswire in the United States the relevant
information and make this information available on the Company Website. In addition, the Company
shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’
Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee
shall have received such Officers’ Certificate, the Trustee and the Conversion Agent (provided the
Conversion Agent is not the Company) shall not be deemed to have knowledge of any adjustment of the
Conversion Rate and may assume that the last Conversion Rate of which each had knowledge is still
in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which
each adjustment became effective and shall mail such notice of such adjustment of the Conversion
Rate to each Holder of each Security at its last address appearing on the list of Holders provided
for in Section 3.06, within 20 calendar days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of any such adjustment.



          (k) For purposes of this Section 6.04, the number of shares of Common Stock at any time
outstanding shall not include shares of Common Stock held in the treasury of the Company but shall
include shares of Common Stock issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any dividend or make any
distribution on Common Stock held in the treasury of the Company.



          (l) Notwithstanding any of the foregoing clauses in this Section 6.04, the applicable
Conversion Rate will not be adjusted pursuant to this Section 6.04 if the Holders of the Securities
are permitted to participate (as a result of holding the Securities and contemporaneously with
holders of Common Stock) in any of the transactions that would otherwise give rise to adjustment
pursuant to this Section 6.04 as if such Holders of the Securities held a number of shares
of Common Stock equal to (i)(A) the principal amount of Securities held by such Holder,
divided by



-65-









 







(B) 1,000, multiplied by (ii) the Applicable Conversion Rate in effect five Business
Days prior to Ex-Dividend Date, Expiration Date or other effective date of the applicable
transaction, without having to convert their Securities (without regard to any limitations on
conversion described in Section 6.16).



          (m) The Company shall not take any voluntary action that would result in an increase to the
Conversion Rate of the Securities pursuant to this Section 6.04 without first complying, if
applicable, with the shareholder approval rules of The Nasdaq Stock Market (including Market Rule
5635) or any stock exchange on which the Common Stock is listed at the relevant time.



     Section 6.05 Effect of Reclassification, Consolidation, Merger or Sale. If the Company:



          (a) reclassifies or changes the outstanding shares of Common Stock (other than a change in par
value, or as a result of a subdivision or combination), or



          (b) consolidates or merges with or into another Person, or sells, leases, transfers, conveys
or otherwise disposes of all or substantially all of the Company’s assets, including those of the
Company’s Subsidiaries taken as a whole, to any other Person or Persons,


and, in either case, holders of Common Stock receive stock, other securities or other property or
assets (including cash or any combination thereof) with respect to or in exchange for such Common
Stock, then the Company or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture under Section 15.01 (which shall comply with the
Trust Indenture Act as in force at the date of execution of such supplemental indenture, if such
supplemental indenture is then required to so comply) providing that from and after the effective
date of such transaction each such Security shall, without the consent of any Holders of
Securities, become convertible into (including payments in shares of Common Stock made in respect
of the Coupon Make Whole Payments upon conversion described in Sections 6.07 and 6.10), in lieu of
the Common Stock otherwise deliverable, the same type (in the same proportion and without regard to
any limitations on conversion described in Section 6.16) of the consideration received by the
holders of Common Stock in such reclassification, change, consolidation, merger, sale, lease,
transfer, conveyance or other disposition (such consideration, the “Reference Property”).
Appropriate provisions will be made, as determined in good faith by the Company’s Board of
Directors, to preserve the value, and give effect to the intent of, the Coupon Make Whole Payment
provisions set forth in Sections 6.07 and 6.10 following such transaction and without regard to any
limitations on conversion described in Section 6.16. If such transaction causes Common Stock to be
converted into the right to receive more than a single type of consideration (determined based in
part upon any form of stockholder election), the Reference Property into which Securities will
become convertible (including payment in shares of Common Stock made with respect to Coupon Make
Whole Payments upon conversion) shall be deemed to be the kind and amount of consideration elected
to be received by a majority of shares of Common Stock voting for such an election (if electing
between two types of consideration) or a plurality of shares of Common Stock voting for such an
election (if electing between more than two types of consideration), as the case may be, and
without regard to
any limitations on conversion described in Section 6.16 . The occurrence of an event described in
clause (a) or (b) of the first sentence of this Section 6.05
that results in an adjustment to the
consideration into which the Securities become convertible pursuant to the terms of this Section
6.05


-66-









 






 shall not result in an adjustment to the Conversion Rate pursuant to Section 6.04. The Company
may not become a party to any such transaction unless its terms are consistent with the foregoing
in all material respects. Such supplemental indenture shall provide for adjustments that shall be
as nearly equivalent as may be practicable to the adjustments provided for in this Article 6, as
determined in good faith by the Company or successor or purchasing corporation. The amount of cash
and any Reference Property a Holder receives upon conversion will be based on the conversion value
of the Reference Property and the Applicable Conversion Rate, as described above.




     If, in the case of any such reclassification, change, consolidation, merger, sale, lease,
transfer, conveyance or other disposition, the stock or other securities and assets received
thereupon by a holder of Common Stock includes shares of stock or other securities and assets of a
corporation other than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other
disposition, then such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders of the Securities
as the Company’s Board of Directors shall reasonably consider necessary by reason of the foregoing,
including to the extent practicable the provisions providing for the conversion rights set forth in
this Article 6.



     The Company shall cause notice of the execution of such supplemental indenture to be mailed or
delivered to each Holder, at the address of such Holder as it appears on the register of the
Securities maintained by the Registrar, within 20 calendar days after execution thereof.
Simultaneously with providing such notice, the Company shall announce through a reputable national
newswire in the United States the relevant information and make this information available on the
Company Website. Failure to deliver such notice shall not affect the legality or validity of such
supplemental indenture.



     The above provisions of this Section 6.05 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales, leases, transfers, conveyances or other
dispositions.



     Section 6.06 Adjustments of Prices. Whenever any provision of this Indenture requires the Company to calculate an average of
the Last Reported Sale Prices over multiple days, the Company will make appropriate adjustments to
account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate occurs, at any time during the period from which the average is
to be calculated. In addition, if during a period applicable for calculating the VWAP or the Last
Reported Sale Price of the Common Stock an event occurs that requires an adjustment to the
Conversion Rate, the VWAP or the Last Reported Sale Price of the Common Stock shall be calculated
for such period in a manner determined in good faith by the Company to appropriately reflect the
impact of such event on the price of Common Stock during such period.



     Section 6.07 Coupon Make Whole Payment in Connection with a Voluntary Conversion.



          (a) If a Holder elects to convert all or a portion of its Securities on or prior to April 15,
2015, such Holder will receive, in addition to the consideration received pursuant to Section 6.03,
an additional payment (the “Coupon Make Whole Payment”) with respect to the Securities converted in
an amount equal to the aggregate amount of interest payments that would have been payable on such
converted Securities from the last day through which interest was paid on



-67-









 







such converted
Securities, or the Issue Date if no interest has been paid, to and including April 15, 2015;
provided that if the Conversion Date falls after any Regular Record Date and on or prior to the
Interest Payment Date to which it relates, the amount of the Coupon Make Whole Payment will be
reduced by the amount of interest payable on such Interest Payment Date to the Holder of record of
the converted Securities at the Close of Business on such Regular Record Date.



     The Coupon Make Whole Payment shall be calculated in accordance with the foregoing as
determined in good faith by the Company. Prior to or concurrently with such payment, the Company
will provide the Trustee with an Officers’ Certificate setting forth the calculation of the payment
required by this Section 6.07. The Trustee shall have no obligation or liability with respect to
the calculation of the payments required by this Section 6.07.



          (b) The Coupon Make Whole Payment payable in connection with a voluntary conversion will
initially be paid in shares of Common Stock valued at a price per share equal to 90% of the lesser
of (i) the average of the daily VWAP for the 10 Trading Days ending on and including the Trading
Day prior to the Conversion Date and (ii) the daily VWAP on the Trading Day prior to the Conversion
Date (the “Trailing Pricing Mechanism”). Notwithstanding the foregoing, in no event will the per
share value used to calculate the number of shares issuable in connection with the Coupon Make
Whole Payment be less than $3.00, subject to a proportionate inverse adjustment in the event of any
adjustment to the Conversion Rate pursuant to Section 6.04.



          (c) The Company may, at its option, elect to pay the Coupon Make Whole Payment payable in
connection with a voluntary conversion in cash or, following any such election to pay in cash, in
shares of Common Stock by delivering a notice to Holders that shall state that the Company intends
to pay the Coupon Make Whole Payment in cash or in shares of Common Stock in accordance with
Section 6.07(b), as the case may be. Such election shall be subject to 11 Trading Days having
elapsed following notice of any election to pay in cash, or following any such cash election,
notice of any election to pay in shares of Common Stock. [The Company may only make this Coupon Make Whole Payment in cash after the 2015 Notes are no
longer outstanding.]24 [While the 2015 Notes are outstanding, the Company may only make
this Coupon Make Whole Payment in cash if it does not then have a sufficient number of authorized
and unissued shares that have not been reserved for other purposes (determined as provided in
paragraph
(d) below).]25



          (d) [Notwithstanding anything to the contrary contained herein, upon any voluntary conversion
the Company will only pay the Coupon Make Whole Payment in shares of Common Stock to the extent
that, at the time of such conversion, it has a sufficient number of authorized and unissued shares
that have not been reserved for other purposes to satisfy the Coupon Make Whole Payment in full.
If the Company does not then have a sufficient number of such shares, the Company will pay the
Coupon Make Whole Payment in
cash.]26



     Section 6.08 Taxes on Shares Issued. Any issue of share certificates on conversions of Securities shall be made without charge
to the converting Holder for any documentary, transfer, stamp or any similar tax in respect of the
issue thereof, and the Company shall pay any and all documentary, stamp or similar issue or
transfer taxes that may be payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any
such tax which may be payable in respect of any transfer



 




			
	24	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is obtained
	 
	25	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is not obtained
	 
	26	 	This portion is to be included only if stockholder
approval to increase the Company’s authorized shares of Common Stock is not
obtained.





-68-









 




involved in the issue and delivery of
shares in any name other than that of the Holder of any Securities converted, and the Company shall
not be required to issue or deliver any such share certificate unless and until the person or
persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid. The Company shall
pay any other costs or expenses incurred in connection with the issuance and delivery of any Common
Stock upon conversion.




     Section 6.09 Conversion at the Option of the Company



          (a) Generally. The Company may elect to mandatorily convert the Securities in whole or in
part (a “Mandatory Conversion”) at any time on or prior to the Maturity Date if the Last Reported
Sale Price of the Common Stock is greater than or equal to 150% of the Applicable Conversion Price
for at least 20 Trading Days during any 30 consecutive Trading Day period ending within five
Trading Days prior to the Company Conversion Notice (as defined below).



     The Company will make appropriate adjustments determined by the Company or its agents to
account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate occurs, at any time during the period from which the average of
such Last Reported Sale Prices is to be calculated.



     In the event the Company elects to mandatorily convert less than all of the outstanding
Securities, the Trustee will (subject to the applicable procedures of the Depositary) select or
cause to be selected the Securities or portions thereof to be converted (in principal amounts of
$1,000 or an integral multiple of $1,000) by lot, on a pro rata basis or by any other method the
Trustee considers fair and appropriate.



     The Securities converted pursuant to such election will be converted automatically, with no
further action by the Holders thereof, on the Mandatory Conversion Date specified in the Company
Conversion Notice. The Company will cause the settlement of the Mandatory Conversion to occur
(including payment of the Coupon Make Whole Payment, if any, and any interest payable upon
conversion) on the Mandatory Conversion Date.



          (b) Delivery of Company Conversion Notice. If the Company elects to mandatorily convert the
Securities pursuant to Section 6.09(a), then on or before the 5th Trading Day following
the 30 consecutive Trading Day period described in Section 6.09(a) above, the Company shall deliver
or cause to be delivered to all Holders of record of the Securities at their addresses shown in the
Security Register a written notice containing the information set forth in Section 6.09(c) (the
“Company Conversion Notice”) with respect to the Mandatory Conversion. The Company shall also
deliver a copy of the Company Conversion Notice to the Trustee, the Conversion Agent and the Paying
Agent at such time as it is mailed to Holders of Securities. Simultaneously with providing such
Company Conversion Notice, the Company shall promptly
publicly announce the relevant information through a reputable national newswire in the United
States and make such information available on the Company Website.



          (c) Company Conversion Notice. In connection with any Mandatory Conversion of Securities, the
Company Conversion Notice shall:



-69-









 





               (i) state the conversion date for such Mandatory Conversion, which shall not be less than 20
nor more than 30 calendar days following the date of the Company Conversion Notice (the “Mandatory
Conversion Date”);



               (ii) state the Applicable Conversion Rate in effect on the date of the Company Conversion
Notice;



               (iii) state the aggregate principal amount of Securities to be mandatorily converted;



               (iv) if fewer than all of the outstanding Securities are to be mandatorily converted, state
that the Securities shall be automatically reduced to the principal amount equal to the unconverted
portion thereof and appropriate notation of such action shall be made by the Trustee and Security
Registrar upon such Securities;



               (v) state whether the Company will pay the Coupon Make Whole Payment payable in accordance
with Section 6.10 below, if any, in cash or in shares of Common Stock;



               (vi) state that each Holder of Securities will have until five Business Days prior to the
Mandatory Conversion Date to inform the Company, in writing, that conversion of such Holder’s
Securities that the Company has elected to convert would result in such Holder (together with such
Holder’s Affiliates) beneficially owning in excess of 9.9% of the number of shares of Common Stock
outstanding immediately after giving effect to such conversion, calculated in accordance with
Section 6.16 of the Indenture, which notice to the Company will include details regarding the
extent to which such Holder’s and its Affiliates’ beneficial ownership will exceed 9.9% of the
outstanding Common Stock after giving effect to such Mandatory Conversion; and



               (vii) state that if the Company is unable to exercise its option to convert all or some of the
Securities of any Holder due to the limitations described under Section 6.16, then the Company will
have the right at any time to redeem the Securities held by such Holder that the Company is not
permitted to convert.



     A Company Conversion Notice may be given by the Company or, at the Company’s request, the
Trustee shall give such Company Conversion Notice in the Company’s name and at the Company’s
expense; provided that the text of the Company Conversion Notice shall be prepared by the Company.



          (d) Securities Converted in Whole or in Part. In the event the Company elects to mandatorily
convert less than all of the outstanding Securities, the Securities shall be automatically reduced
to the principal amount equal to the unconverted portion thereof and appropriate notation of such
action shall be made by the Trustee and Security Registrar upon such Securities; provided that
in no event shall a Security of a principal amount of $1,000 or less be converted in part. If
upon a Mandatory Conversion, a Holder of any Security converted in part surrenders at the office of
the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Holder’s attorney duly authorized in writing) such Security, then the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of any authorized denomination as
requested by



-70-









 







such Holder in aggregate principal amount equal to, and in exchange for, the
unconverted portion of the Security so surrendered.



     Upon conversion, interest on the Securities or portion of Securities so called for Mandatory
Conversion shall cease to accrue and the Holders thereof shall have no right in respect of such
Securities except the right to receive the shares of Common Stock to which they are entitled
pursuant to this Section 6.09 (including shares in respect of the Coupon Make Whole Payment
pursuant to Section 6.10, if any) and cash payments in lieu of fractional shares and in respect of
the Coupon Make Whole Payment pursuant to Section 6.10, if any, and accrued and unpaid interest
pursuant to Section 6.03.



     Section 6.10 Coupon Make Whole Payment in Connection with Conversion at the Option of the
Company.



          (a) If the Company elects to convert some or all of the Securities on or prior to April 15,
2015, pursuant to Section 6.09, Holders will receive a Coupon Make Whole Payment with respect to
the Securities being converted equal to the aggregate amount of interest payments that would have
been payable on such converted Securities from the last day through which interest was paid on such
converted Securities, or the Issue Date if no interest has been paid, to and including April 15,
2015; provided, however, that if the Mandatory Conversion Date falls after any Regular Record Date
and on or prior to the Interest Payment Date to which it relates, the amount of the Coupon Make
Whole Payment will be reduced by the amount of interest payable on such Interest Payment Date to
the Holders of record of the converted Securities at the Close of Business on such Regular Record
Date.



     The Coupon Make Whole Payment shall be calculated in accordance with the foregoing as
determined in good faith by the Company. Prior to or concurrently with such payment, the Company
will provide the Trustee with an Officers’ Certificate setting forth the calculation of the payment
required by this Section 6.10. The Trustee shall have no obligation or liability with respect to
the calculation of the payments required by this Section 6.10.



          (b) The Coupon Make Whole Payment payable in connection with a Mandatory Conversion will
initially be paid in shares of Common Stock valued at a price per share equal to the average of the
daily VWAP for the 10 Trading Days beginning two Trading Days following the date of the Company
Conversion Notice (the “Subsequent Pricing Mechanism”). Notwithstanding the foregoing, in no event
will the per share value used to calculate the number of shares issuable in connection with the
Coupon Make Whole Payment be less than $3.00, subject to a proportionate inverse adjustment in the
event of any adjustment to the Conversion Rate pursuant to Section 6.04.



          (c) The Company may, at its option, elect to pay the Coupon Make Whole Payment payable in
connection with a Mandatory Conversion in cash by delivering notice of such election in the Company
Conversion Notice. [The Company may only make this Coupon Make Whole Payment in cash after the 2015 Notes are no
longer outstanding.]27 [While the 2015 Notes are outstanding, the Company may only make
this Coupon Make Whole Payment in cash if it does not then have a sufficient number of authorized
and unissued shares that have not been reserved for other purposes (determined as provided in
paragraph (d) below).]28




          (d) [Notwithstanding anything to the contrary contained herein, upon any Mandatory Conversion
the Company will only pay the Coupon Make Whole Payment in shares of Common Stock to the extent
that, at the time of such conversion, it has a sufficient number of authorized and unissued shares
that have not been reserved for other purposes to satisfy the Coupon




 




			
	27	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is obtained.
	 
	28	 	This portion is to be included only if (i) the Company accepts more than 50% but
less than 75% of 2015 Notes in exchange offer, and (ii) stockholder approval to increase the
Company’s authorized shares of Common Stock is not obtained




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Make Whole Payment with
respect to such Mandatory Conversion in full. If the Company does not then have a sufficient
number of such shares, the Company will pay the Coupon Make Whole
Payment in
cash.]29



     Section 6.11 Reservation of Shares; Shares to be Fully Paid; Compliance with Governmental
Requirements. The Company shall at all times maintain out of its authorized but unissued shares of Common
Stock enough shares to permit the issuance of shares of Common Stock upon the conversion, in
accordance herewith (without regard to any limitations on conversion described in Section 6.16), of
all of the Securities, including any shares issuable in payment of the Coupon Make Whole Payments
[but subject, in the case of shares issuable in respect of the Coupon Make Whole Payments, to
Section 6.07(d) and Section 6.10(d). If at any time the Company does not have a sufficient number
of authorized and unissued shares that have not been reserved for other purposes to satisfy the
Coupon Make Whole Payment payable upon conversions, the Company shall provide prompt notice of such
insufficiency to the Holders of Securities, the Trustee, the Conversion Agent and the Paying Agent.
Simultaneous with such notice, the Company shall publicly announce the relevant information
through a reputable national newswire in the United States and make such information available on
the Company
Website]30. The shares of Common Stock due upon conversion of a Global
Security shall be delivered by the Company in accordance with the Depositary’s customary practices,
except under the limited circumstances provided in Section 3.09(b). All shares of Common Stock
which may be issued upon conversion of the Securities shall be validly issued, fully paid and
non-assessable and shall be free of preemptive or similar rights and free from all liens, taxes,
charges or adverse changes.



     Before taking any action that would cause an adjustment increasing the Conversion Rate to an
amount that would cause the Conversion Price to be reduced below the then par value, if any, of the
shares of Common Stock issuable upon conversion of the Securities, the Company will take all
corporate action which may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue shares of such Common Stock at such adjusted Conversion Price.



     The Company covenants to take all such actions as may be required for the payment in
accordance herewith of shares of Common Stock, if any, deliverable upon the conversion of any
Securities, including any shares issuable in payment of the Coupon Make Whole Payments, including
the acceptance of such shares of Common Stock into the book-entry system maintained by the
Depositary. Without limiting the generality of the foregoing, the Company further covenants that,
(i) if any shares of Common Stock to be provided for the purpose of conversion of Securities
hereunder, including any shares issuable in payment of the Coupon Make Whole Payments, require
registration with or approval of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company will in good faith and as
expeditiously as possible, to the extent then permitted by the rules and interpretations of the





 




			
	29	 	This portion is to be included only if stockholder
approval to increase the Company’s authorized shares of Common Stock is not
obtained.
	 
	30	 	This portion is to be included only if stockholder
approval to increase the Company’s authorized shares of Common Stock is not
obtained.





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Commission (or any successor thereto), endeavor to secure such registration or approval, as the
case may be and (ii) if at any time Common Stock shall be listed on any national securities
exchange or automated quotation system, the Company will, if permitted by the rules of such
exchange or automated quotation system, list and keep listed, so long as Common Stock shall be so
listed on such exchange or automated quotation system, all shares of Common Stock issuable upon
conversion of the Securities, including any shares issuable in payment of the Coupon Make Whole
Payments; provided that if the rules of such exchange or automated quotation system permit the
Company to defer the listing of such shares of Common Stock until the first conversion of the
Securities into Common Stock in accordance with the provisions of this Indenture, the Company
covenants to list such shares of Common Stock issuable upon conversion of the Securities, including
any shares issuable in payment of the Coupon Make Whole Payments, in accordance with the
requirements of such exchange or automated quotation system at such time.




     Section 6.12 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or
responsibility to any Holder to determine the Conversion Rate or whether any facts exist which may
require any adjustment of the Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same. The Trustee and any
other Conversion Agent shall not be accountable with respect to the validity or value (or the kind
or amount) of any Common Stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Securities; and the Trustee and any other Conversion Agent
make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall
be responsible for any failure of the Company to issue, transfer or deliver any shares of Common
Stock or share certificates or other securities or property or cash upon the surrender of any
Securities for the purpose of conversion, or upon any automatic conversion in the event of a
Mandatory Conversion, or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article 6. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into pursuant to Section 6.05
relating either to the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any event referred to in such
Section 6.05 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 12.01, may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected
in relying upon, the Officers’ Certificate (which the Company shall be obligated to file with
the Trustee prior to the execution of any such supplemental indenture) with respect thereto.



     Section 6.13 Notice to Holders Prior to Certain Actions. In case:



          (a) the Company shall pay a dividend (or any other distribution) on shares of Common Stock
that would require an adjustment in the Conversion Rate pursuant to Section 6.04; or



          (b) the Company shall issue rights or warrants to the holders of all or substantially all of
the shares of Common Stock to subscribe for or purchase any shares of any class of Capital Stock or
any other rights or warrants; or



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          (c) of any reclassification or change of the outstanding shares of Common Stock (other than
change in par value, or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or of any consolidation or merger of the Company with or
into another Person, or any sale, lease, transfer, conveyance or other disposition of all or
substantially all of the Company’s assets and those of the Company’s Subsidiaries taken as a whole
to any other Person or Persons; or



          (d) liquidation, dissolution or winding up of the Company, whether voluntary or involuntary;


then, in each case, the Company shall cause to be filed with the Trustee and the Conversion Agent
and to be mailed to each Holder at such Holder’s address appearing on the list of Holders provided
for in Section 3.06 of this Indenture, as promptly as practicable but in any event at least 30 days
prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend or distribution of Common Stock rights, warrants,
cash or other assets, evidences of indebtedness, securities or rights to purchase the Company’s
securities, or, if a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution or rights are to be determined, or (y) the
date on which such reclassification, change, consolidation, merger, sale, lease, transfer,
conveyance or other disposition or liquidation, dissolution or winding up is expected to become
effective or occur, and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.




     Section 6.14 Stockholder Rights Plan. If the Company has a stockholder rights plan relating to Common Stock in effect upon
conversion of the Securities, Holders will receive upon conversion of Securities, in addition to
such Common Stock, rights under the Company’s stockholder rights plan, unless prior to such
conversion, the rights have separated from the Common Stock, in which case the Conversion Rate will
be adjusted at the time of separation as if the Company distributed to all or substantially all
holders of
Common Stock, shares of Capital Stock, evidences of indebtedness or assets as described in
Section 6.04(d) above (with such separation being deemed the occurrence of a Trigger Event for
purposes of Section 6.04(d)). For purposes of calculating the per share fair market value of the
shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including
securities, distributed with respect to each outstanding share of Common Stock under Section
6.04(d), any shares of Common Stock held by any Person who is ineligible to receive such
distribution under the terms of the rights plan shall not be deemed outstanding. The Company
agrees that any rights plan adopted by the Company shall provide for the foregoing rights upon
conversion of the Securities. Any distribution of rights or warrants pursuant to a rights plan
that would allow a Holder to receive upon conversion, in addition to shares of Common Stock, the
rights described therein with respect to such shares of Common Stock (unless such rights or
warrants have separated from the Common Stock) shall not constitute a distribution of rights or
warrants that would entitle such Holder to an adjustment to the Conversion Rate.



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     Section 6.15 Company Determination Final. Any determination that the Company or its Board of Directors must make pursuant to this
Article 6 shall be conclusive if made in good faith and in accordance with the provisions of this
Article 6, absent manifest error, and set forth in a Board Resolution.



     Section 6.16 Limitations on Conversion. The Company will not effect any conversion of the Securities (including any Mandatory
Conversion pursuant to Section 6.09), and Holders of the Securities will not have the right to
convert any portion of the Securities, in excess of that portion of the Securities on conversion of
which the sum of (1) the number of shares of Common Stock beneficially owned by a Holder and its
Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the
ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of
any other securities of the Company beneficially owned by such Holder or its Affiliates subject to
a limitation on exercise or conversion analogous to the limitations described in this Section 6.16)
and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the
Securities with respect to which the determination set forth in this sentence is being made
(including any shares related to the settlement of the Coupon Make Whole Payment in connection
therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount
greater than 9.9% (the “Maximum Percentage”) of the then issued and outstanding shares of Common
Stock.



     Except as set forth in the preceding sentence, for purposes of this Section 6.16, beneficial
ownership will be calculated in accordance with Section 13(d) and the rules and regulations
promulgated thereunder under the Exchange Act. For purposes of this Section 6.16, in determining
the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and
outstanding shares of Common Stock as reflected in (x) the Company’s most recent document or
report, as the case may be, filed by the Company with the Commission, (y) a more recent public
announcement by the Company or (z) any other recent notice by the Company, in each case setting
forth the number of shares of Common Stock issued and outstanding. Upon the written request of a
Holder, the Company will within two Business Days confirm in writing to such Holder the number of
shares of Common Stock then issued and outstanding. In any case, the number of issued and
outstanding shares of Common Stock will be determined for this purpose after giving effect to the
conversion or exercise of securities of the Company, including the Securities, by the
applicable Holder and its Affiliates since the date as of which such number of outstanding shares
of Common Stock was reported, announced or confirmed.



     Any purported delivery of shares of Common Stock upon exercise of the conversion right on the
Securities will be void and have no effect to the extent (but only to the extent) that such
delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more
than the Maximum Percentage of the shares of Common Stock outstanding at such time.



     Notwithstanding anything to the contrary in this Section 6.16, no Holder will be entitled,
with or without the Company’s consent, to waive the restrictions set forth in this Section 6.16.



     If the Company is unable to exercise its option (pursuant to Section 6.09) to convert some or
all of the Securities of any Holder due to the limitations described in this Section 6.16, then the
Company will have the right at any time to redeem the Securities held by such Holder that the
Company is not permitted to convert[; provided, however, that the Company may only redeem the



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Securities
after the 2015 Notes are no longer
outstanding]31. If the Company elects to
redeem such Securities from such Holder, the redemption shall be made in accordance with and
pursuant to the provisions of Article 7. In addition, the Holder will retain its right to
voluntarily convert such Holder’s Securities, subject to the limitations set forth in this Section
6.16.



ARTICLE 7

REDEMPTION




     Section 7.01 Optional Redemption.



          (a) The Securities are not redeemable by the Company prior to April 15, 2015, except in the
limited circumstances described in Section 6.16. At any time on or after April 15, 2015, the
Company has the right, at its option, to redeem the Securities in whole or in part. [The Company
may only redeem the Securities after the 2015 Notes are no longer
outstanding]32



          (b) The redemption price at which the Securities are redeemable (the “Redemption Price”) shall
be payable in cash and shall be equal to 100% of the principal amount of the Securities to be
redeemed, together with accrued and unpaid interest (including Additional Interest, if any), on the
principal amount of the Securities redeemed, to but excluding the Redemption Date; provided that if
the Redemption Date falls after a Regular Record Date and on or prior to the Interest Payment Date
to which it relates, the Company will pay the full amount of
accrued and unpaid interest (including Additional Interest, if any), due on such Interest
Payment Date to the Holder of record at the Close of Business on such Regular Record Date and not
to the Holder submitting the Securities for redemption, if different.



          (c) If the Company exercises its right to redeem Securities pursuant to Section 6.16, any such
redemption shall be deemed to be made pursuant to this Article 7.



     Section 7.02 Selection of Securities to be Redeemed. If fewer than all of the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed (in principal amounts of $1,000 or an integral multiple of $1,000) by
lot, on a pro rata basis or by any other method the Trustee considers fair and appropriate. The
Trustee shall make the selection within seven calendar days from its receipt of the Redemption
Notice from outstanding Securities not previously called for redemption. The Trustee shall notify
the Company promptly of the Securities or portion of Securities to be redeemed. Portions of this
Indenture that apply to Securities called for redemption in whole also apply to Securities called
for redemption in part.



     If a portion of a Holder’s Security is selected for partial redemption and the Holder converts
a portion of its Security after the Redemption Notice is given and prior to the Redemption Date,
the converted portion will be deemed to be from the portion selected for redemption. Securities
which





 




			
	31	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.
	 
	32	 	This portion is to be included only if the Company
accepts more than 50% but less than 75% of 2015 Notes in exchange offer.





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have been converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.




     Section 7.03 Delivery of Redemption Notice. At least 20 calendar days but not more than 60 calendar days before a Redemption Date, the
Company shall provide or cause to be provided to all Holders of record of the Securities to be
redeemed at their addresses shown in the Security Register a written notice containing the
information set forth in Section 7.04 (a “Redemption Notice”) with respect to the redemption. The
Company shall also deliver a copy of the Redemption Notice to the Trustee and the Paying Agent at
such time as it is mailed to Holders of Securities. Simultaneously with providing such Redemption
Notice, the Company shall promptly publicly announce the relevant information through a reputable
national newswire in the United States and make such information available on the Company Website.



     Section 7.04 Redemption Notice. In connection with any redemption of Securities pursuant to this Article 7, the Redemption
Notice shall specify the Securities to be redeemed and shall state:



          (a) the Redemption Date;



          (b) the Redemption Price;



          (c) the Applicable Conversion Rate;



          (d) the name and address of the Paying Agent and Conversion Agent;



          (e) that Securities called for redemption may be converted at any time before the Close of
Business on the Business Day immediately preceding the Redemption Date;



          (f) that Holders who want to convert Securities must satisfy the requirements set forth
therein and in this Indenture, including the limitations on conversion set forth in Section 6.16;



          (g) that Securities called for redemption must be surrendered to the Paying Agent for
cancellation to collect the Redemption Price;



          (h) the aggregate principal amount of Securities to be redeemed; and



          (i) if any Security is to be redeemed in part only, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion thereof will be issued.



     A Redemption Notice may be given by the Company or, at the Company’s request, the Trustee
shall give such Redemption Notice in the Company’s name and at the Company’s expense; provided that
the text of the Redemption Notice shall be prepared by the Company.



     In connection with any redemption pursuant to this Article 7, the Company will, to the extent
required, (i) comply with the provisions of Rule 13e-4, Rule 14e-1 (or any successor provision) and
any other tender offer rules under the Exchange Act that may be applicable at the time of the
purchase of the Securities, (ii) file the related Schedule TO (or any successor schedule, form or
report) or any other schedule required in connection with any offer by the Company to purchase the



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Securities under the Exchange Act and (iii) otherwise comply with all federal and state securities
laws so as to permit the rights and obligations under this Article 7 to be exercised in the time
and in the manner specified in this Article 7.



     Section 7.05 Effect of Redemption Notice. Once a Redemption Notice is given, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price stated in the Redemption Notice except for
Securities that are converted in accordance with the terms of this Indenture. Upon surrender to
the Paying Agent, such Securities shall be paid at the Redemption Price stated in the Redemption
Notice. A Holder’s conversion rights on Securities called for redemption will expire at the Close
of Business on the Business Day immediately preceding the Redemption Date, unless the Company
defaults in payment of the Redemption Price.



     Section 7.06 Deposit of Redemption Price. No later than 10:00 a.m., New York City time, on the Redemption Date, the Company shall
deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them
is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount of
money (in immediately available funds if deposited on such Redemption Date) sufficient to pay the
Redemption Price of all the Securities or portions thereof that are to be redeemed as of the
Redemption Date. The Company shall promptly notify the Trustee in writing of the amount of any
deposits of cash made pursuant to this Section 7.06.



     If on the Redemption Date the Paying Agent holds money sufficient to pay the Redemption Price
of the Securities to be redeemed in accordance with this Article 7, then, as of the Redemption
Date, (a) such Securities will cease to be outstanding and interest, including Additional Interest
if any, will cease to accrue thereon and (b) all other rights of the Holder in respect thereof will
terminate (other than the right to receive the Redemption Price). This will be the case whether or
not book-entry transfer of the Securities has been made or the Securities have been delivered to
the Paying Agent.



     Section 7.07 Securities Redeemed in Whole or in Part. Any Security that is to be redeemed, whether in whole or in part, shall be surrendered at
the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion
of the principal amount of the Security so surrendered which is not redeemed; provided that in no
event shall a Security of a principal amount of $1,000 or less be redeemed in part.



     In the event of a redemption in part, the Company will not be required to (i) issue, register
the transfer of or exchange any Security during a period of 15 calendar days before the mailing of
the Redemption Notice; or (ii) register the transfer of or exchange any Security so selected for
redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in
part.



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ARTICLE 8

NOTE GUARANTIES




     Section 8.01 The Guarantees. Subject to the provisions of this Article 8, each Guarantor hereby irrevocably and
unconditionally guarantees, jointly and severally, on a secured basis, the full and punctual
payment (whether at the Maturity Date, upon redemption pursuant to Article 7, purchase pursuant to
Article 5, acceleration, or otherwise) of the principal of, premium, if any, and interest on, and
all other amounts payable under, each Security, and the full and punctual payment of all other
amounts payable by the Company under this Indenture and each other Note Document. Upon failure by
the Company to pay punctually any such amount, each Guarantor shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in this Indenture.



     Section 8.02 Guarantee Unconditional. The obligations of each Guarantor hereunder are unconditional and absolute and, without
limiting the generality of the foregoing, will not be released, discharged or otherwise affected
by:



          (a) any extension, renewal, settlement, compromise, waiver or release in respect of any
obligation of the Company under this Indenture or any Security, by operation of law or otherwise;



          (b) any modification or amendment of or supplement to this Indenture or any Security;



          (c) any release, impairment, non-perfection or invalidity of any direct or indirect security
for any obligation of the Company or any Guarantor hereunder;



          (d) any change in the corporate existence, structure or ownership of the Company, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its
assets or any resulting release or discharge of any obligation of the Company contained in this
Indenture or any Security;



          (e) the existence of any claim, set-off or other rights which such Guarantor may have at any
time against the Company, the Trustee or any other Person, whether in connection with this
Indenture or any unrelated transactions, provided that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim;



          (f) any invalidity or unenforceability relating to or against the Company for any reason of
this Indenture, any Security or any Note Document, or any provision of applicable law or regulation
purporting to prohibit the payment by the Company of the principal of or interest on any Security
or any other amount payable by the Company under this Indenture; or



          (g) any other act or omission to act or delay of any kind by the Company, the Trustee or any
other Person or any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to such Guarantor’s obligations
hereunder.



     Section 8.03 Discharge; Reinstatement. Each Guarantor’s obligations hereunder will remain in full force and effect until the
principal of, premium, if any, and interest on the Securities



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and all other amounts payable by the
Company under this Indenture have been paid in full. If at any time any payment of the principal
of, premium, if any, or interest on any Security or any other amount payable by the Company under
this Indenture is rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, each Guarantor’s obligations hereunder
with respect to such payment will be reinstated as though such payment had been due but not made at
such time.



     Section 8.04 Waiver by the Guarantors. Each Guarantor irrevocably waives (to the extent permitted by law) acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against the Company or any other Person.



     Section 8.05 Subrogation and Contribution. Upon making any payment with respect to any obligation of the Company under this Article 8,
the Guarantor making such payment will be subrogated to the rights of the payee against the Company
with respect to such obligation; provided that such Guarantor may not enforce either any right of
subrogation, or any right to receive payment in the nature of contribution, or otherwise, from any
other Guarantor, with respect to such payment, so long as any amount payable by the Company
hereunder or under the Securities remains unpaid.



     Section 8.06 Stay of Acceleration. If acceleration of the time for payment of any amount payable by the Company under this
Indenture or the Securities is stayed upon the insolvency, bankruptcy or reorganization of the
Company, all such amounts otherwise subject to acceleration under the terms of this Indenture are
nonetheless payable by the Guarantors hereunder forthwith on demand by the Trustee or the Holders.



     Section 8.07 Limits of Guarantees. Notwithstanding anything to the contrary in this Article 8, each Guarantor, and by its
acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties
that the Note Guaranty of such Guarantor not constitute a fraudulent conveyance under applicable
fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision
of state law. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of each Guarantor under its Note Guaranty are limited
to the maximum amount that would not render the Guarantor’s obligations subject to avoidance under
applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable
provision of state law.



     Section 8.08 Execution and Delivery of Note Guaranty. The execution by each Guarantor of this Indenture (or a supplemental indenture in the form
of Exhibit C) evidences the Note Guaranty of such Guarantor, whether or not the person
signing as an officer of the Guarantor still holds that office at the time of authentication of any
Security. The delivery of any Security by the Trustee after authentication constitutes due
delivery of the Note Guaranty set forth in this Indenture on behalf of each Guarantor.



     Section 8.09 Release of Note Guaranty.



          (a) A Guarantor shall be released from all of its obligations under its Note Guaranty, this
Indenture and the Security Agreements (if applicable):



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               (i) upon a sale or other disposition (including by way of consolidation, merger, liquidation
or dissolution) of the Guarantor following which such Guarantor ceases to be a direct or indirect
Wholly Owned Domestic Subsidiary of the Company, or the sale or disposition of all or substantially
all the assets of the Guarantor (other than to the Company or a Subsidiary) otherwise permitted by
this Indenture;



               (ii) upon the Guarantor becoming an Excluded Subsidiary; provided that if the applicable
Subsidiary ceases to be an Excluded Subsidiary, it shall again become a Guarantor pursuant to
Section 4.19;



               (iii) with the consent of the requisite holders of the Securities in accordance with Section
15.02, including, without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, Securities;



               (iv) a Guarantor ceasing to be a Wholly Owned Domestic Subsidiary of the Company in accordance
with this Indenture; provided that if the applicable Subsidiary becomes a Wholly Owned Domestic
Subsidiary (other than an Excluded Subsidiary) it will again become a Guarantor pursuant to Section
4.19; or



               (v) upon discharge of the Indenture, as provided in Article 14;


and in each case the Company has delivered to the Trustee an Officers’ Certificate, stating that
all conditions precedent herein relating to such release have been complied with and that such
release is authorized and permitted hereunder.




          (b) If all of the conditions to release contained in this Section 8.09 have been satisfied,
the Trustee shall execute any documents reasonably requested by the Company or any Guarantor in
order to evidence the release of such Guarantor from its obligations under its Note Guaranty and
the Collateral Documents (if applicable).



ARTICLE 9

SECURITY INTEREST




     Section 9.01 Grant of Security Interest.



          (a) The Company and the Guarantors shall, pursuant to the Collateral Documents and within the
period permitted by the Collateral Documents, pledge the Collateral to the Collateral Agent and
grant to the Collateral Agent for the benefit of the Secured Parties, a security interest in the
Collateral, whether owned on the Issue Date or thereafter acquired, subject to Permitted Liens (the
“Security Interest”), to secure the Secured Obligations. As among the Holders, the Collateral as
now or hereafter constituted shall be held for the equal and ratable benefit of the Holders,
without preference, priority or distinction of any Holder thereof over any other such Holder by
reason of differences in time of issuance, sale or otherwise, as security for the Secured
Obligations.



          (b) The Company shall furnish to the Trustee and the Collateral Agent Opinions of Counsel as
required by the Trust Indenture Act with respect to indentures that are secured by the mortgage or
pledge of property. To the extent applicable, within 60 days after each April 15, beginning with
April 15, 2011, the Company will comply with Sections 313(b) and 314(b) of the



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Trust Indenture Act, relating to reports with respect to the Collateral and annual opinions as to
the validity of the Liens securing the Securities and Note Guaranties.




          (c) Each Holder, by its acceptance of the Securities, (i) authorizes and directs the
Collateral Agent (x) to enter into the Collateral Documents and to perform its obligations and
exercise its rights thereunder in accordance therewith, and (y) to receive for the benefit of the
Secured Parties any funds collected by or distributed to the Collateral Agent pursuant to the
Collateral Documents and to make further distributions of such funds to the Secured Parties
according to the provisions of this Indenture and (ii) without limiting the foregoing, consents and
agrees to all of the terms and conditions of the Collateral Trust Agreement and the other
Collateral Documents (including, without limitation, the provisions providing for foreclosure and
release of Collateral); provided that if any provision of the Collateral Documents limits,
qualifies or conflicts with the requirements of the Trust Indenture Act made a part of this
Indenture, the Trust Indenture Act will control.



          (d) In acting in its capacity as collateral agent, the Collateral Agent shall not be (i)
deemed to have breached its fiduciary duty as Trustee to the Holders as a result of the performance
of its duties as collateral agent to the extent that it acts pursuant to and in compliance with the
terms and provisions of the Collateral Documents or (ii) liable for any action taken or omitted
pursuant to and in compliance with the terms and provisions of the Collateral Documents.



          (e) In the event (i) the Trustee shall receive any written request from the Company, a
Guarantor or the Collateral Agent under any Collateral Document for consent or approval with
respect to any matter or thing relating to any Collateral or the Company’s or such Guarantor’s
obligations with respect thereto, (ii) there shall be due to or from the Trustee or the Collateral
Agent under the provisions of any Collateral Document any material performance or the delivery of
any material instrument or (iii) the Trustee shall become aware of any nonperformance by the
Company or a Guarantor of any covenant or any breach of any representation or warranty of the
Company or such Guarantor set forth in any Collateral Document, then, in each such event, the
Trustee shall be entitled to hire experts, consultants, agents and attorneys to advise the Trustee
on the manner in which the Trustee should respond, or direct the Collateral Agent to respond, to
such request or render any requested performance or respond, or direct the Collateral Agent to
respond, to such nonperformance or breach; provided that the Trustee’s right to direct the
Collateral Agent to respond shall be subject to the terms of the Collateral Documents. The Trustee
shall be fully protected in the taking of any action recommended or approved by any such expert,
consultant, agent or attorney or agreed to by the Holders of a majority in principal amount of the
Outstanding Securities.



     Section 9.02 Release of Security Interest.



          (a) Upon the occurrence of any of the following events, the Company may, at its option,
deliver to the Trustee an Officers’ Certificate (which shall set forth in reasonable detail such
event and the Collateral subject to such event) requesting that the Security Interest in the
Collateral
subject to such event be released, and upon the receipt of such Officers’ Certificate, the
Trustee shall instruct the Collateral Agent to release the Collateral subject to such event:



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               (1) upon the release of a Guarantor from its Note Guaranty in accordance with the terms of
this Indenture, the Security Interest in the assets of such Guarantor shall be released;



               (2) the Security Interest in all of the Collateral shall be released upon a satisfaction and
discharge of this Indenture pursuant to Article 14 hereof;



               (3) upon any sale, transfer or other disposition of Collateral by the Company or any Guarantor
to a Person that is not (either before or after the consummation of such sale, transfer or
disposition) the Company or a Guarantor and which sale, transfer or other disposition is permitted
by the Indenture (but excluding any transaction subject to Article 11 where the recipient is
required to become the obligor on the Securities or a Guarantor), the Security Interest in such
portion of the Collateral subject to such sale, transfer of other disposition shall be released;



               (4) with the consent of the requisite Holders in accordance with Section 15.02, including,
without limitation, consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Securities, the Security Interest in the Collateral shall be released with respect
to that portion of the Collateral that is the subject of such consent; and



               (5) upon the Incurrence of Debt permitted by Section 4.15(b)(8) that is secured by a Lien of
the type described in clause (11) of the definition of Permitted Liens, the Security Interest shall
be released with respect to that portion of the Collateral that is the subject of such Lien, but
only (x) to the extent that the terms of such Debt (or of the Lien securing such Debt) prohibit the
existence of a junior Lien upon the applicable property and (y) if any Lien securing Credit
Agreement Obligations on the applicable junior property shall have also been released;


provided that in each case provided in clauses (1) to (5) above, (x) at the time of such release no
Default or Event of Default shall have occurred and be continuing and (y) the Company shall have
complied with Section 9.03 and the Collateral Trust Agreement.




          (b) The release of the Security Interest in any part of the Collateral shall not be deemed to
impair the Security Interest in other parts of the Collateral under this Indenture or be deemed to
be in contravention of the provisions of this Indenture and of the Collateral Documents if and to
the extent such Security Interest in such part of the Collateral is released pursuant to the terms
of this Indenture and the Collateral Documents.



          (c) Whenever any part of or all of the Security Interest is to be released pursuant to this
Section 9.02 and the Collateral Documents, the Trustee shall, if necessary, or shall cause the
Collateral Agent to, execute any reasonable document or termination statement necessary to release
the Security Interest. Nothing set forth in this Section 9.02 shall limit the automatic release
provisions of any Collateral Document.



     Section 9.03 Documents to be Delivered Prior to Release of Security Interest. The Company and any other obligor shall cause Section 314(d) of the Trust Indenture Act
relating to the release of property from the Security Interest to be complied with. Any
certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an
officer of the Company except in cases where Section 314(d) requires that such certificate or
opinion be made by an independent engineer, appraiser or other expert, who shall be reasonably
satisfactory to the Trustee.




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Notwithstanding anything to the contrary herein, the Company and its Subsidiaries will not be
required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they
determine, in good faith based on the advice of outside counsel, that under the terms of that
section and/or any interpretation or guidance as to the meaning thereof of the Commission and its
staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of
the Trust Indenture Act is inapplicable to the released Collateral.




     Section 9.04 Pledge of Additional Collateral.



          (a) From and after the date the Collateral Documents are executed and delivered and so long as
the Securities are secured by the Security Interest, if a Wholly Owned Domestic Subsidiary shall
become a Guarantor pursuant to Section 4.19, then, the Company or such Guarantor (in respect of the
Property acquired) or such Wholly Owned Domestic Subsidiary (in respect of all of its Properties
that constitute Collateral), shall, promptly, after such acquisition of Property, if necessary,
execute and deliver in respect of such Property or Properties, mortgages, deeds of trust, security
agreements, pledge agreements or similar instruments (as applicable) and take all such other
actions as may be deemed reasonably necessary to grant and perfect, if not otherwise perfected, a
first priority lien on those additional assets or the assets of such Wholly Owned Domestic
Subsidiary to the Collateral Agent for the benefit of the Secured Parties (to the extent such
assets constitute Collateral). The execution of such additional security documents shall vest in
the Collateral Agent a perfected security interest, subject only to Permitted Liens, in such
Property or Properties (to the extent such assets constitute Collateral) for the benefit of the
Collateral Agent on behalf of the Secured Parties, and thereupon all provisions of this Indenture
and the applicable Collateral Documents relating to the Collateral shall be deemed to relate to
such Property or Properties to the same extent and with the same force and effect.



          (b) Unless and until documents granting a first priority lien security interest in additional
Property or assets are delivered to the Collateral Agent as contemplated by Section 9.04(a), the
Trustee and the Collateral Agent may assume without inquiry that the Collateral Agent has received
all Collateral Documents required to be delivered to it pursuant to this Article 9 and that no
additional documents are required to be delivered to the Collateral Agent pursuant to Section
9.04(a).



     Section 9.05 Collateral Agent. U.S. Bank National Association is appointed as Collateral Agent for the benefit of the
Holders of the Securities and the other Secured Parties, and shall initially act as Collateral
Agent under the Collateral Documents. Subject to the terms of the Collateral Trust Agreement, the
Collateral Agent will hold (directly or through co-trustee or agents), and will be entitled to
enforce on behalf the Holders of the Securities and the other Secured Parties, all Liens on the
Collateral.



ARTICLE 10

EVENTS OF DEFAULT; REMEDIES



     Section 10.01 Events of Default. “Event of Default,” wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):



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          (a) default in any payment of interest (including Additional Interest, if any) on any Security
when due and payable and such default continues for a period of 30 calendar days;



          (b) default in the payment of the principal amount of any Security when due and payable at the
Maturity Date, upon declaration or otherwise, or in the payment of any Fundamental Change Purchase
Price or Redemption Price when due and payable;



          (c) failure by the Company to comply with its obligation to convert the Securities in
accordance with this Indenture upon exercise of a Holder’s conversion right herein and such failure
continues for a period of five calendar days;



          (d) default in the payment of the Coupon Make Whole Payment in accordance with Sections 6.07
and 6.10, as applicable, when due and payable upon conversion and such default continues for a
period of 30 calendar days;



          (e) failure by the Company to issue a Fundamental Change Notice to Holders in accordance with
the terms of this Indenture and such failure continues for a period of five calendar days;



          (f) failure by the Company or any Guarantor to comply with its obligations under Article 11
hereof;



          (g) failure by the Company or any Guarantor to comply with any other covenant or agreement in
the Securities, in this Indenture or any other Collateral Documents other than those referred to in
other clauses of this Section 10.01, and such default continues for a period of 60 calendar days
after receipt by the Company of a Notice of Default;



          (h) failure by the Company, any Guarantor or any Significant Subsidiary of the Company,
whether or not a Guarantor, to make any payment of the principal or interest on any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any debt for money borrowed in excess of $10,000,000 (or its equivalent in
any other currency or currencies) in the aggregate of the Company, any Guarantor and/or any
Significant Subsidiary of the Company, whether or not a Guarantor, whether such debt now exists or
shall hereafter be created, resulting in such debt becoming or being declared due and payable, and
such acceleration shall not have been rescinded or annulled within 30 calendar days after written
notice of such acceleration has been received by the Company, any Guarantor and/or any Significant
Subsidiary of the Company, whether or not a Guarantor;



          (i) the commencement by the Company, any Guarantor or by a Significant Subsidiary of the
Company, whether or not a Guarantor, of a voluntary case or proceeding under any applicable
federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company, any Guarantor or of a Significant
Subsidiary of the Company, whether or not a Guarantor, in an involuntary case or proceeding under
any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable federal, state or foreign law, or the consent by it to the filing of such petition or to
the appointment of or



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taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, any Guarantor or of a Significant Subsidiary
of the Company, whether or not a Guarantor, or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of corporate action by
the Company, any Guarantor or by a Significant Subsidiary of the Company, whether or not a
Guarantor, in furtherance of any such action;



          (j) the entry by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company, any Guarantor or any Significant Subsidiary of the Company,
whether or not a Guarantor, in an involuntary case or proceeding under any applicable federal,
state or foreign bankruptcy, insolvency, reorganization or other similar law, (ii) a decree or
order adjudging the Company, any Guarantor or a Significant Subsidiary of the Company, whether or
not a Guarantor, as bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company, any
Guarantor or any Significant Subsidiary of the Company, whether or not a Guarantor, under any
applicable federal, state or foreign law or (iii) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company, any Guarantor or any
Significant Subsidiary of the Company, whether or not a Guarantor, of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in effect for a period of
90 consecutive days;



          (k) any Note Guaranty ceases to be in full force and effect, other than in accordance with the
terms of this Indenture, or any Guarantor denies or disaffirms its obligations under its Note
Guaranty; or



          (l) (a) the Liens created by the Collateral Documents shall at any time not constitute a valid
and (to the extent perfection by filing, registration, recordation or possession is required by
this Indenture or the Collateral Documents) perfected Lien on any material portion of the
Collateral intended to be covered thereby other than in accordance with the terms of the relevant
Collateral Document and this Indenture, or (b) any of the Collateral Documents shall for whatever
reason be terminated or cease to be in full force and effect (except for expiration in accordance
with its terms or amendment, modification, waiver, termination or release in accordance with the
terms of this Indenture and the relevant Collateral Document), or the enforceability thereof shall
be contested by the Company or any Guarantor.



     Notwithstanding anything in this Indenture to the contrary, if in connection with purchases
made pursuant to Article 5 or redemptions made pursuant to Article 7, the Company is required to
comply with Rule 13e-4, Rule 14e-1 and/or any other tender offer rule under the Exchange Act or
applicable state securities laws and such compliance contravenes the terms of this Indenture or the
Securities, such compliance will not, standing alone, constitute an Event of Default.



     The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have be given to a Trust Officer at the Corporate Trust Office of the Trustee by the
Company’s Paying Agent or any Holder.



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     Section 10.02 Acceleration of Maturity; Waiver of Past Defaults and Rescission.



          (a) If an Event of Default (other than those specified in Section 10.01(i) and Section
10.01(j), and as otherwise provided in Section 10.03) occurs and is continuing, then and in every
such case the Trustee by written notice to the Company, or the Holders of not less than 25% in
aggregate principal amount of the outstanding Securities by written notice to the Company or the
Trustee, may, and the Trustee at the request of such Holders shall, declare 100% of the principal
amount plus accrued and unpaid interest (including Additional Interest, if any) on all the
outstanding Securities to be due and payable, and upon any such declaration such principal amount
plus accrued and unpaid interest (including Additional Interest, if any) shall become immediately
due and payable.



     Notwithstanding the foregoing, in the case of an Event of Default specified in Section
10.01(i) or Section 10.01(j), 100% of the principal amount plus accrued and unpaid interest
(including Additional Interest, if any) on all outstanding Securities will automatically become
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder.



          (b) The Holders of not less than a majority in aggregate principal amount of the outstanding
Securities, by written notice to the Company and the Trustee may (x) on behalf of the Holders of
the Securities, waive any past Default and its consequences and (y) at any time after a declaration
of acceleration 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 10 provided, rescind any such acceleration
with respect to the Securities and its consequences, except, in each case, an uncured Default
described in Sections 10.01(a) or 10.01(b), or in respect of a covenant or provision hereof which
under Section 15.02 cannot be modified or amended without the consent of the Holder of each
outstanding Security affected, if:



               (i) such rescission will not conflict with any judgment or decree of a court of competent
jurisdiction; and



               (ii) all existing Events of Default, other than the non-payment of the principal amount plus
accrued and unpaid interest (including Additional Interest, if any) on Securities that have become
due solely by such declaration of acceleration, have been cured or waived.



     Upon any such waiver, the Default which has been waived shall cease to exist and any Event of
Default arising therefrom shall be deemed to have been cured, for every other purpose of the
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent.



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



     Section 10.03 Additional Interest. Notwithstanding anything to the contrary in this
Indenture, if so elected by the Company, the sole remedy for an Event of Default relating to the
failure to comply with Section 4.10 hereof (including reporting obligations that arise under
Section 314(a)(1) of the Trust Indenture Act) will (i) for the first 90 days after the occurrence
of such



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an Event of Default consist exclusively of the right to receive Additional Interest on the
Securities at an annual rate equal to 0.25% of the principal amount of the Securities and (ii) from
the 91st day until the 180th day following the occurrence of such an Event of Default consist
exclusively of the right to receive Additional Interest on the Securities at an annual rate equal
to 0.50% of the principal amount of the Securities. If the Company so elects, the Additional
Interest payable under this Section 10.03 will be payable on all outstanding Securities from and
including the date on which such Event of Default first occurs to, but excluding, the 180th day
thereafter, or such earlier date on which such Event of Default has been cured or waived or ceases
to exist. On the 181st day after such Event of Default, if such Event of Default has not been
cured or waived prior to such 181st day, Additional Interest payable pursuant to this Section 10.03
will cease to accrue and the Securities will be subject to acceleration as provided in Section
10.02. This Section 10.03 will not affect the rights of Holders of the Securities in the event of
the occurrence of any other Event of Default. In the event the Company does not elect to pay the
Additional Interest payable pursuant to this Section 10.03 upon an Event of Default in accordance
with this paragraph, the Securities will be subject to acceleration as provided in Section 10.02.
Any Additional Interest payable pursuant to this Section 10.03 will be payable at the same time, in
the same manner and to the same persons as ordinary interest is payable pursuant to the Securities.



     In order to elect to pay the Additional Interest payable pursuant to this Section 10.03 as the
sole remedy during the first 180 days after the occurrence of an Event of Default relating to the
failure to comply with Section 4.10 (including reporting obligations that arise under Section
314(a)(1) of the Trust Indenture Act) in accordance with the immediately preceding paragraph, the
Company must notify all Holders, the Trustee and Paying Agent of such election on or before the
Close of Business on the date on which such Event of Default first occurs. Upon the failure to
timely give such notice, the Securities will be immediately subject to acceleration as provided in
Section 10.02.



     Section 10.04 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if a Default is made in the payment of the principal amount plus accrued and unpaid
interest (including Additional Interest, if any) at the Maturity Date thereof or in the payment of
the Fundamental Change Purchase Price or the Redemption Price in respect of any Security,
the Trustee may recover, in its own name, and as trustee of an express trust against the Company,
and 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, 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 an Event of Default occurs and is continuing, the Trustee may, but shall not be obligated
to, pursue any available remedy to collect the payment of the principal amount plus accrued but
unpaid interest (including Additional Interest, if any) on the Securities or to enforce the
performance of any provision of the Securities or this Indenture. The Trustee may maintain a
proceeding even if the Trustee does not possess any of the Securities or does not produce any of
the Securities in the proceeding. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.



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     Section 10.05 Trustee May File Proofs of Claim. In case of any judicial proceeding relative
to the Company (or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized 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 12.07.



     No provision of this Indenture 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.



     Section 10.06 Application of Money Collected. Any money collected by the Trustee pursuant to
this Article 10 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 to Holders, 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 12.07;



     SECOND: To the payment of the amounts then due and unpaid on the Securities for the principal
amount, interest (including Additional Interest, if any), Fundamental Change Purchase Price,
Redemption Price, cash in lieu of fractional shares and cash payments made in respect of the Coupon
Make Whole Payments, if any, as the case may be, 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; and



     THIRD: To the payment of the remainder, if any, to the Company or any other Person lawfully
entitled thereto.



     Section 10.07 Limitation on Suits. Except to enforce rights in the case of an Event of
Default specified in Sections 10.01(a) or 10.01(b), no Holder of any Security 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:



               (i) such Holder has previously given written notice to the Trustee of an Event of Default that
is continuing;



               (ii) the Holder or Holders of not less than 25% in aggregate principal amount of the
outstanding Securities shall have made a written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;



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               (iii) such Holder or Holders have offered to the Trustee indemnity or security reasonably
satisfactory to it against any loss, liability or expense;



               (iv) the Trustee for 60 days after its receipt of such request and offer of indemnity or
security has failed to institute any such proceeding; and



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



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



     Section 10.08 Unconditional Right of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of the principal amount,
Fundamental Change Purchase Price, Redemption Price or Coupon Make Whole Payments in respect of, or
interest (including Additional Interest, if any) on, the Securities held by such Holder, on or
after the respective due or payment dates expressed in the Securities, any Fundamental Change
Purchase Date, any Redemption Date or otherwise, as applicable, to convert the Securities in
accordance with Article 6, or to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, is absolute and unconditional and shall not be
impaired or affected adversely without the consent of such Holder.



     Section 10.09 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 10.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.07, 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 shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.



     Section 10.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Security 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 an
acquiescence therein. Every right and remedy given by this Article 10 or by law to the Trustee or
to



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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.



     Section 10.12 Control by Holders. The Holders of not less than a majority in aggregate
principal amount of the outstanding Securities may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. However, if an Event of Default has occurred and is continuing, the
Trustee will be required in the exercise of its powers and rights vested in it by the Indenture to
use the degree of care that a prudent person would use in the conduct of its own affairs.
Furthermore, the Trustee may refuse to follow any direction that conflicts with applicable law or
this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability unless the Trustee is offered
indemnity or security reasonably satisfactory to the Trustee in its sole discretion against any
loss, liability or expense to the Trustee to institute such proceeding as Trustee; provided that
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with
such direction.



     Section 10.13 Undertaking for Costs. 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 or omitted by it as
Trustee, in either case in respect of the Securities, a court may require any party litigant in
such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorney’s fees and expenses, against any party litigant in the suit
having due regard to the merits and good faith of the claims or defenses made by the party
litigant; but the provisions of this Section 10.13 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any Holder pursuant to
Section 10.08, or to any suit by Holders holding in the aggregate more than 10% in principal amount
of the outstanding Securities.



     Section 10.14 Waiver of Stay or Extension Laws. The Company covenants (to the extent that 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.



ARTICLE 11

MERGER, CONSOLIDATION OR SALE OF ASSETS



     Section 11.01 Company May Consolidate, Etc., Only on Certain Terms. The Company shall not,
in one transaction or a series of related transactions, consolidate or merge with or into any
Person, or sell, convey, transfer, lease or dispose of all or substantially all of the assets of
the Company and its Subsidiaries as an entirety or substantially as an entirety, to any Person, or,
permit any Person to merge with or into the Company, unless:



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          (a) either (i) the Company is the continuing or surviving Person or (ii) the resulting,
surviving or transferee Person (the “Successor Company”) is a corporation organized and validly
existing under the laws of the United States of America or any jurisdiction thereof and such
Successor Company expressly assumes by an indenture supplemental hereto (or other joinder
agreement, as applicable) all of the obligations of the Company under this Indenture, including
payment of the principal amount and interest (including Additional Interest, if any) on the
Securities, the Securities and the Collateral Documents, and the performance and observance of all
of the covenants and conditions to be performed by the Company;



          (b) immediately after giving effect to such transaction, no Default has occurred and is
continuing; and



          (c) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel
(subject to customary exceptions and qualifications), each stating that the consolidation, merger
or transfer and the supplemental indenture (if any) comply with this Indenture;


provided, that clause (b) does not apply to the consolidation or merger of a Wholly Owned
Subsidiary with or into the Company.




     Any sale or other disposition of assets by Subsidiaries which would constitute substantially
all of the assets of the Company and its Subsidiaries, taken as a whole, shall be subject to the
provisions set forth in this Section 11.01.



     Section 11.02 Successor Substituted for Company. Upon the consummation of any transaction
effected in accordance with Section 11.01, the Successor Company (if not the Company) shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture and the Securities and the Collateral Documents with the same effect as if such Successor
Company had been named as the Company herein. Upon such substitution, unless the Successor Company
is one or more of the Company’s Subsidiaries, the Company will be released from its obligations
under this Indenture and the Securities, except in the case of a lease of all or substantially all
of the properties and assets of the Company and its Subsidiaries.



     Section 11.03 Guarantors May Consolidate, Etc., Only on Certain Terms. No Guarantor may, in
one transaction or a series of related transactions, consolidate or merge with or into any Person,
or sell, convey, transfer, lease or dispose of all or substantially all of its assets as an
entirety or substantially as an entirety, to any Person, or, permit any Person to merge with or
into the Guarantor, unless:



          (a) the other Person is the Company or any Subsidiary that is a Guarantor or becomes a
Guarantor concurrently with the transaction; or



          (b) (i) either (x) the Guarantor is the continuing or surviving Person or (y) the Successor
Company is a corporation organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and such Successor Company expressly assumes by an indenture
supplemental hereto (or other joinder agreement, as applicable) all of the obligations of the
Guarantor under its Note Guaranty, including payment of the principal amount and interest
(including Additional Interest, if any) on the Securities, this Indenture, the Securities and the



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Collateral Documents, and the performance and observance of all of the covenants and conditions to
be performed by the Guarantor; and



               (ii) immediately after giving effect to such transaction, no Default has occurred and is
continuing.



     Any sale or other disposition of assets by Subsidiaries of a Guarantor which would constitute
substantially all of the assets of the Guarantor and its Subsidiaries, taken as a whole, shall be
subject to the provisions set forth in this Section 11.03.



     Section 11.04 Successor Substituted for Guarantor. Upon the consummation of any transaction
effected in accordance with Section 11.03, the resulting, surviving or transferee person (if not
the Guarantor) formed by such consolidation or into which the Guarantor is merged or to which such
sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Indenture and the Securities with the
same effect as if such Successor Company had been named as the Guarantor herein (unless the Note
Guaranty will be released in connection therewith as set forth in Section 8.09). Upon such
substitution, unless the Successor Company is one or more of the Guarantor’s Subsidiaries, the
Guarantor will be released from its obligations under this Indenture and the Securities, except in
the case of a lease of all or substantially all of the properties and assets of the Guarantor.



ARTICLE 12

THE TRUSTEE



     Section 12.01 Duties and Responsibilities of Trustee.



          (a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of its rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.



          (b) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:



               (i) prior to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred:



                    (A) the duties and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trust Indenture Act, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this Indenture and the Trust
Indenture Act against the Trustee; and



                    (B) in the absence of bad faith or willful misconduct on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness



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of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, 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 be
under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein);



               (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust
Officer or Officers of the Trustee, unless the Trustee was negligent in ascertaining the pertinent
facts;



               (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the written direction of the Holders of not less than a
majority in principal amount of the Securities at the time outstanding determined as provided in
Sections 1.04 and 16.05 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) whether or not therein provided, every provision of this Indenture relating to the
conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to
the provisions of this Section 12.01;



               (v) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected by the
Company or any Paying Agent or any records maintained by any co-registrar with respect to the
Securities; and



          (c) if any party fails to deliver a notice relating to an event the fact of which, pursuant to
this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred.



     None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.



     Section 12.02 Notice of Defaults. The Trustee shall give the Holders notice of any Default
known to it hereunder within 90 days after the occurrence thereof so long as such Default is
continuing; provided that (except in the case of any Default pursuant to Sections 10.01(a) or
10.01(b), the Trustee may withhold such notice if and so long as a committee of Trust Officers of
the Trustee in good faith determines that withholding of such notice is in the interest of the
Holders of Securities.



     Section 12.03 Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
12.01:



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          (a) the Trustee may rely and shall be protected in acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note,
coupon or other paper or document (whether in its original or facsimile form) believed by it in
good faith to be genuine and to have been signed or presented by the proper party or parties;



          (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the secretary, any assistant secretary or the general
counsel of the Company;



          (c) the Trustee may consult with counsel of its own selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;



          (d) the Trustee shall be under no obligation to exercise any of its rights or powers under
this Indenture at the request or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee indemnity or security reasonably
satisfactory to it against any loss, liability or expense which may be incurred therein or thereby;



          (e) 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 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 (at the
reasonable expense of the Company and shall incur no liability of any kind by reason of such
inquiry or investigation);



          (f) 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 any misconduct or negligence on the part of any agent or attorney appointed by it
with due care hereunder;



          (g) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;



          (h) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;



          (i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Trust Officer of the Trustee has actual knowledge thereof or unless written notice of



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any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and the Indenture; and



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



     Section 12.04 No Responsibility for Recitals, Etc. The recitals contained herein and in the
Securities (except in the Trustee’s certificate of authentication) shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by the Company of any
Securities or the proceeds of any Securities authenticated and delivered by the Trustee in
conformity with the provisions of this Indenture. The Trustee shall have no responsibility for the
Company’s compliance with or determination of the Subordinated Debt provisions contained in this
Indenture.



     Section 12.05 Trustee, Paying Agents, Conversion Agents or Registrar May Own Securities. The
Trustee, any Paying Agent, any Conversion Agent or Security Registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same rights it would have if
it were not Trustee, Paying Agent, Conversion Agent or Security Registrar.



     Section 12.06 Monies to be Held in Trust. Subject to the provisions of Section 14.04, all
monies and properties received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it hereunder except as
may be agreed in writing from time to time by the Company and the Trustee.



     Section 12.07 Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation
for all services rendered by it hereunder in any capacity (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed
to from time to time in writing between the Company and the Trustee, and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence, willful misconduct or bad faith. The Company also covenants to
indemnify the Trustee (or any officer, director or employee of the Trustee), in any capacity under
this Indenture and its agents and any authenticating agent for, and to hold them harmless against,
any and all loss, liability, claim or expense incurred without negligence, willful misconduct or
bad faith on the part of the Trustee or such officers, directors, employees and agent or
authenticating agent, as the case may be, and arising out of or in connection with the acceptance
or administration of this trust or in any other capacity hereunder, including the costs and
expenses of defending themselves against any claim of liability in the premises. The obligations
of the Company under this Section 12.07 to compensate or indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances



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shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities. The obligation of the
Company under this Section 12.07 shall survive the satisfaction and discharge of this Indenture.



     When the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Sections 10.01(i) or 10.01(j) with respect to the Company
occurs, the expenses and the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.



     Section 12.08 Officers’ Certificate as Evidence. Except as otherwise provided in Section
12.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate delivered to the
Trustee.



     Section 12.09 Conflicting Interests of Trustee. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.



     Section 12.10 Eligibility of Trustee. There shall at all times be a Trustee hereunder which
shall at all times be a corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus of at least
$50,000,000 (or if such Person is a member of a bank holding company system, its bank holding
company shall have a combined capital and surplus of at least $50,000,000). If such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of any
supervising or examining authority,
then for the purposes of this Section 12.10 the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. The Company shall not, nor shall any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as Trustee. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section
12.10, it shall resign immediately in the manner and with the effect hereinafter specified in this
Article 12.



     Section 12.11 Resignation or Removal of Trustee.



          (a) The Trustee may at any time resign by giving written notice of such resignation to the
Company and to the Holders of Securities. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment sixty (60) days after the mailing of such notice of resignation to the
Holders, the resigning Trustee may, upon ten (10) Business Days’ notice



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to the Company and the
Holders, appoint a successor identified in such notice or may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor trustee, or, if any
Holder who has been a bona fide Holder of a Security or Securities for at least six (6) months may,
subject to the provisions of Section 10.13, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.



          (b) In case at any time any of the following shall occur:



               (i) the Trustee shall fail to comply with Section 12.09 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security or Securities for at least
six (6) months; or



               (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 12.10
and shall fail to resign after written request therefor by the Company or by any such Holder; or



               (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation;


then, in any such case, the Company may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 10.13, any Holder who has been a bona fide Holder of a
Security or Securities for at least six (6) months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee; provided, however, that if no successor Trustee shall have
been appointed and have accepted appointment sixty (60) days after either the Company or the
Holders has removed the Trustee, the Trustee so removed may petition at its own expense any court
of competent jurisdiction
for an appointment of a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




          (c) The Holders of a majority in aggregate principal amount of the Securities at the time
outstanding may at any time remove the Trustee and nominate a successor trustee which shall be
deemed appointed as successor trustee unless, within ten (10) days after notice to the Company of
such nomination, the Company objects thereto, in which case the Trustee so removed or any Holder,
or if such Trustee so removed or any Holder fails to act, the Company, upon the terms and
conditions and otherwise as in Section 12.11(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor trustee.



          (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 12.11 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 12.12.



     Section 12.12 Acceptance by Successor Trustee. Any successor trustee appointed as provided in
Section 12.11 shall execute, acknowledge and deliver to the Company and to its



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predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of Section
12.07, execute and deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company
shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by such trustee as such,
except for funds held in trust for the benefit of Holders of particular Securities, to secure any
amounts then due it pursuant to the provisions of Section 12.07.



     No successor trustee shall accept appointment as provided in this Section 12.12 unless, at the
time of such acceptance, such successor trustee shall be qualified under the provisions of Section
12.09 and be eligible under the provisions of Section 12.10.



     Upon acceptance of appointment by a successor trustee as provided in this Section 12.12, the
Company (or the former trustee, at the written direction of the Company) shall mail or cause to be
mailed notice of the succession of such trustee hereunder to the Holders of Securities at their
addresses as they shall appear on the Security Register. If the Company fails to mail such notice
within ten (10) days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.



     Section 12.13 Succession by Merger, Etc. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Trustee (including any trust
created by this Indenture), shall be the successor to the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that
in the case of any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, such corporation shall be qualified under the provisions of Section 12.09
and eligible under the provisions of Section 12.10.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have been authenticated,
any successor to the Trustee or any authenticating agent appointed by such successor trustee may
authenticate such Securities in the name of the successor trustee; and in all such cases such
certificates shall have the full force that is provided in the Securities or in this Indenture;
provided, however, that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.



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     Section 12.14 Preferential Collection of Claims. The Trustee shall comply with Section 311(a)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent included therein.



     Section 12.15 Trustee’s Application for Instructions from the Company. Any application by the
Trustee for written instructions from the Company (other than with regard to any action proposed to
be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the
Securities under this Indenture) may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The Trustee shall not be
liable for any action taken by, or omission of, the Trustee in accordance with a proposal included
in such application on or after the date specified in such application (which date shall not be
less than three (3) Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any earlier date) unless
prior to taking any such action (or the effective date in the case of an omission), the Trustee
shall have received written instructions in response to such application specifying the action to
be taken or omitted.



ARTICLE 13

HOLDERS’ LISTS AND REPORTS BY TRUSTEE



     Section 13.01 Company to Furnish Trustee Names and Addresses of Holders. The Company will
furnish or cause to be furnished to the Trustee:



               (i) semi-annually, not more than 15 days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular
Record Date; and



               (ii) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;


excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar; provided, however, that no such list need be furnished so long as the Trustee
is acting as Security Registrar.




     Section 13.02 Preservation of Information; Communications to Holders.



          (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 13.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 13.01
upon receipt of a new list so furnished.



          (b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by Section 312(b) of the Trust Indenture Act.



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          (c) Every Holder, by receiving and holding the same, agrees with the Company and the Trustee
that the Company and the Trustee shall have the protection of Section 312(c) of the Trust Indenture
Act and neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.



     Section 13.03 Reports By Trustee. The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.



          A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when the Securities are listed on any
stock exchange or of any delisting thereof.



     Section 13.04 Reports by Company.



          (a) The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that
the Company’s reporting obligations under Section 314(a)(1) of the Trust Indenture Act shall be as
set forth in Section 4.10 hereof.



          (b) Delivery of such 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
conclusively rely exclusively on an Officers’ Certificate).



ARTICLE 14

SATISFACTION AND DISCHARGE



     Section 14.01 Discharge of Indenture. When:



          (a) the Company shall deliver to the Trustee for cancellation all Securities theretofore
authenticated (other than any Securities that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Securities shall have been authenticated and delivered) and not
theretofore canceled; or



          (b) all the Securities not theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit with the Trustee, or deliver
to the Holders, as applicable, in trust, cash or U.S. Government Obligations or a combination
thereof sufficient to pay, whether at the Maturity Date or with respect to any Fundamental Change
Purchase Date or Redemption Date in connection with the purchase, conversion or redemption of all
of the outstanding Securities (other than any Securities that shall have been mutilated, destroyed,
lost or stolen and in lieu of or in substitution for which other



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Securities shall have been
authenticated and delivered), all amounts due and payable or to become due and payable, accompanied
by a verification report, as to the sufficiency of the deposited amount, from an independent
certified accountant or other financial professional satisfactory to the Trustee,


and if the Company shall also pay or cause to be paid all other sums payable hereunder or under any
other Note Document by the Company or any Guarantor, then this Indenture shall cease to be of
further effect (except as to (i) remaining rights of registration of transfer, substitution and
exchange and conversion of Securities, (ii) rights hereunder of Holders to receive payments of
principal of and interest (including Additional Interest, if any) on, the Securities and the other
rights, duties and obligations of Holders, as beneficiaries hereof with respect to the amounts, if
any, so deposited with the Trustee and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on written demand of the Company accompanied by an Officers’
Certificate and an Opinion of Counsel as required by Section 1.03 and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and discharging this
Indenture; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in connection with this
Indenture, the Securities or the other Note Documents.




     Section 14.02 Deposited Monies to be Held in Trust by Trustee. Subject to Section 14.04, all
monies or U.S. Government Obligations deposited with the Trustee pursuant to Section 14.01 shall be
held in trust for the sole benefit of the Holders, and such monies or U.S. Government Obligations
shall be applied by the Trustee to the payment, either directly or through any Paying Agent
(including the Company if acting as its own Paying Agent), to the Holders of the particular
Securities for the payment or redemption of which such monies or U.S. Government Obligations have
been deposited with the Trustee, of all sums due and to become due thereon for principal and
interest (including Additional Interest, if any).



     Section 14.03 Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this
Indenture, all monies or U.S. Government Obligations then held by any Paying Agent of the
Securities (other than the Trustee) shall, upon written request of the Company, be repaid to it or
paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability
with respect to such monies or U.S. Government Obligations.



     Section 14.04 Return of Unclaimed Monies. Subject to the requirements of applicable law, any
monies or U.S. Government Obligations deposited with or paid to the Trustee for payment of the
principal of or interest (including Additional Interest, if any) on Securities and not applied but
remaining unclaimed by the Holders of Securities for two years after the date upon which the
principal of or interest (including Additional Interest, if any) on such Securities, as the case
may be, shall have become due and payable, shall be repaid to the Company by the Trustee on demand
and all liability of the Trustee shall thereupon cease with respect to such monies or U.S.
Government Obligations; and the Holder of any of the Securities shall thereafter look only to the
Company for any payment that such Holder may be entitled to collect unless an applicable abandoned
property law designates another Person.



     Section 14.05 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with Section 14.02 by reason of any order or



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judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s and the Guarantor’s obligations under this Indenture, the Securities and the other Note
Documents shall be revived and reinstated as though no deposit had occurred pursuant to Section
14.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 14.02; provided, however, that if the
Company makes any payment of interest on or principal of any Security following 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 Paying Agent.



ARTICLE 15

MODIFICATION AND AMENDMENT



     Section 15.01 Without Consent of Holders. Without the consent of any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto and amend the Collateral Documents, in form
satisfactory to the Trustee, for any of the following purposes:



               (i) to cure any ambiguity or omission or correct any defect or inconsistency contained herein
or in the Securities or the Collateral Documents, so long as such action will not adversely affect
the interests of the Holders;



               (ii) to provide for the assumption by a successor corporation, partnership, trust or limited
liability company of the obligations of the Company contained herein;



               (iii) to provide for any Guarantee of the Securities, to secure the Securities or to confirm
and evidence the release, termination or discharge of any Guarantee of or Lien
securing the Securities when such release, termination or discharge is permitted by this
Indenture and, in the case of a release, termination or discharge of a Lien, the Collateral Trust
Agreement;



               (iv) to add to the covenants of the Company or its Subsidiaries for the benefit of the
Holders, or to surrender any right or power conferred upon the Company or its Subsidiaries by this
Indenture;



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



               (vi) to make any changes or modifications to this Indenture necessary in connection with the
registration of a public offer and sale of the Securities under the Securities Act or the
qualification of this Indenture under the Trust Indenture Act;



               (vii) to make any amendment to the provisions of this Indenture relating to the transferring
and legending of Securities as permitted by this Indenture, including, without limitation, to
facilitate the issuance and administration of the Securities; provided, however, that (a)
compliance with this Indenture as so amended would not result in Securities being transferred in
violation of the Securities Act or any applicable securities laws and (b) such amendment does not
adversely affect the rights of the Holders;



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               (viii) to release Collateral as permitted under the terms of this Indenture and the Collateral
Documents;



               (ix) to evidence and provide for the acceptance of the appointment of a successor Trustee or
Collateral Agent; or



               (x) to make any change that does not materially adversely affect the rights of any Holder,
provided that any amendment made solely to conform the provisions of this Indenture or the
Securities to the “Description of New 7.5% Notes” section in the Prospectus will be deemed not to
materially adversely affect the rights of the Holders.



     Section 15.02 With Consent of Holders. With the consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding Securities, including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for, the Securities,
by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto and
amend the Collateral Documents for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or the Collateral Documents or of
modifying in any manner the rights of the Holders under this Indenture or the Collateral Documents;
provided, however, that no such supplemental indenture shall, without the consent of the Holder of
each outstanding Security affected thereby:



               (i) reduce the percentage in aggregate principal amount of Securities whose Holders must
consent to an amendment of this Indenture or to waive any past default;



               (ii) reduce the rate or extend the stated time of payment of any interest (including
Additional Interest, if any) on any Security, or change the Company’s obligation to pay Additional
Interest or Coupon Make Whole Payments;



               (iii) reduce the principal amount, Additional Interest or Coupon Make Whole Payments, if any,
or extend the Maturity Date, of any Security;



               (iv) change the place or currency of payment of principal or interest in respect of any
Security;



               (v) make any change that adversely affects the conversion rights of any Security, including
any change to the provisions set forth in Article 6;



               (vi) amend or modify in any manner the provisions described under Section 6.16;



               (vii) reduce the Fundamental Change Purchase Price or Redemption Price of any Security or
amend or modify in any manner adverse to the Holders of Securities the Company’s obligation to make
such payments, including any extension of the related payment dates or any change to the provisions
set forth in Article 5 or Article 7;



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               (viii) impair the right of any Holder to receive payment of principal of and interest,
including Additional Interest, on such Holder’s Securities on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such Holder’s Securities;



               (ix) modify any of the provisions of this Section 15.02 or Section 10.02(b);



               (x) adversely affect the ranking of the Securities or any Note Guaranty as senior secured
indebtedness of the Company and the applicable Guarantor;



               (xi) release any Guarantor from any of its obligations under its Note Guaranty or this
Indenture, except in accordance with the terms of this Indenture; or



               (xii) make any changes in any Note Guaranty that would adversely affect the Holders.



     In addition, without the consent of Holders of at least 75% of principal amount of Securities
then outstanding, no amendment may modify any Collateral Documents or the provisions of this
Indenture dealing with the Collateral Documents in any manner, taken as a whole, adverse to the
Holders or otherwise release all or substantially all of the Collateral securing the Company’s and
the Guarantor’s obligations under this Indenture, the Securities and any Note Guaranties, except as
permitted in this Indenture.



     It shall not be necessary for any Act of Holders under this Section 15.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.



     Section 15.03 Execution of Supplemental Indentures. In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Section 15.03 or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be provided with, and (subject
to Section 12.01) shall be fully protected in relying upon, in addition to the documents required
by Section 1.03, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. Subject to the preceding sentence, the Trustee shall
sign such supplemental indenture if the same does not adversely affect the Trustee’s own rights,
duties or immunities under this Indenture or otherwise. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that adversely affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.



     Section 15.04 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under Section 15.03, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder
theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



     Section 15.05 Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article 15 shall conform to the applicable requirements of the Trust Indenture
Act.



     Section 15.06 Reference in Securities to Supplemental Indentures. Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to Section 15.03 shall
bear a notation in form approved by the Trustee as to any matter provided for in such supplemental




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indenture pursuant to Section 15.03 shall bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for outstanding Securities.




     Section 15.07 Notice to Holders of Supplemental Indentures. The Company shall cause notice
briefly detailing any supplemental indenture to be delivered to each Holder, at his address
appearing on the Security Register provided for in this Indenture, within 20 days after execution
thereof. Failure to deliver such notice to all Holders, or any defect in such notice, shall not
impair or affect the legality or validity of such supplemental indenture.



ARTICLE 16

MISCELLANEOUS




     Section 16.01 Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act through operation of Section 318(c) thereof, such imposed duties shall control.
If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the provision of the Trust Indenture Act shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.



     Section 16.02 Notices. Any notice or communication shall be in writing (including telecopy
promptly confirmed in writing) and delivered in person or mailed by first-class mail addressed as
follows:


if to the Company:



Evergreen Solar, Inc.

138 Bartlett Street

Marlboro, Massachusetts 01752

Attention: Chief Financial Officer

Fax: (508) 229-0747



if to a Guarantor:



Guarantor

c/o Evergreen Solar, Inc.

138 Bartlett Street

Marlboro, Massachusetts 01752

Attention: Chief Financial Officer

Fax: (508) 229-0747




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if to the Trustee:



U.S. Bank National Association

633 West 5th Street, 24th Floor

Los Angeles, California 90071

Attention: Corporate Trust Services

(Evergreen Solar 7.5% Convertible Senior Secured Notes due 2017)

Fax: (213) 615-6197




     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 mailed to a registered Holder shall be mailed to the Holder at the
Holder’s address as it appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. Any notice shall be deemed to have been given: at
the time delivered, if delivered in person; on the fifth day after being mailed using the U.S.
postal system; upon confirmation of transmission, if delivered by facsimile; or the next Business
Day, if sent by overnight courier.



     Failure to mail or deliver a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or communication is delivered in
the manner provided above, it is duly given, whether or not the addressee receives it, except that
notices to the Trustee shall be effective only upon receipt.



     The Trustee agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Indenture given by the Company, provided, however, that (i) the
Company, subsequent to such facsimile transmission of written instructions and/or directions, shall
provide the originally executed instructions and/or directions to the Trustee in a timely manner
and (ii) such originally executed instructions and/or directions shall be signed by an authorized
officer of the Company.



     Section 16.03 Communication by Holders with other Holders. Holders may communicate pursuant
to Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of Section 312(c) of the Trust Indenture Act.



     Section 16.04 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:



          (a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
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) if requested by the Trustee, an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.







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     Section 16.05 When Securities Are Disregarded. In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be disregarded and deemed not
to be outstanding, except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities which a Trust
Officer of the Trustee actually knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Securities outstanding at the time shall be considered in any such determination.



     Section 16.06 Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable
rules for action by, or a meeting of, Holders. The Registrar and the Paying Agent may make
reasonable rules for their functions.



     Section 16.07 Legal Holidays. If an Interest Payment Date is not a Business Day, payment
shall be made on the next succeeding day that is a Business Day, and no interest (including
Additional Interest, if any) shall accrue for the intervening period. If a Regular Record Date is
not a Business Day, the Regular Record Date shall not be affected. In any case where the Maturity
Date of any Security is not a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of principal need not be made on such date, but may be made
on the next succeeding day that is a Business Day, with the same force and effect as if made on at
the Maturity Date.



     Section 16.08 Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     Section 16.09 No Recourse against Others. An incorporator, director, officer, employee,
Affiliate or stockholder of the Company, solely by reason of this status, shall not have any
liability for any obligations of the Company under the Securities, this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issue of the Securities.



     Section 16.10 Successors. All agreements of the Company and of each Guarantor in this
Indenture and the Securities shall bind its respective successors. All agreements of the Trustee
in this Indenture shall bind its successors.



     Section 16.11 Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



     Section 16.12 Table of Contents; Headings. The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.



     Section 16.13 Severability Clause. In case any provision in this Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not



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in any way be affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.




     Section 16.14 Calculations. Except as otherwise provided herein, the Company will be
responsible for making all calculations called for under this Indenture or the Securities. The
Company (or its agents) will make all such calculations in good faith and, absent manifest error,
its calculations will be final and binding on the Trustee, the Paying Agent, the Conversion Agent
and Holders. The Company (or its agents) upon request will provide a schedule of its calculations
to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is
entitled to rely conclusively upon the accuracy of such calculations without independent
verification. The Trustee will deliver a copy of such schedule to any Holder upon the written
request of such Holder.



     Section 16.15 Waiver of Jury Trial. EACH OF THE COMPANY, EACH GUARANTOR 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 ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES,
THE COLLATERAL DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.



     Section 16.16 Consent to Jurisdiction.



          (a) The Company and each Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court or federal court of
the United States sitting in the State and City of New York, County and Borough of Manhattan, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Indenture, a Note Guaranty or the Securities, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such state court
sitting in the State and City of New York, County and Borough of Manhattan or, to the extent
permitted by law, in such federal court sitting in the State and City of New York, County and
Borough of Manhattan. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.




          (b) The Company and each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action proceeding arising out of or relating to this
Indenture, a Note Guaranty or the Securities in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.




     Section 16.17 Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services; it being understood that the Trustee shall use
reasonable efforts



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which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.




[Remainder of the page intentionally left blank.]




-110-









 





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



	 	 	 	 	 
	 	EVERGREEN SOLAR, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




 









 





EXHIBIT A




FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE




_______________, ____




U.S. Bank National Association

633 West Fifth Street, 24th floor

Los Angeles, California 90071

Attention: Corporate Trust Services

Attention: Corporate Trust Services

(Evergreen Solar 7.5% Convertible Senior Secured Notes due 2017)

Fax: (213) 615-6197





			
	     Re:	 	Evergreen Solar, Inc. (the “Company”)

7.5% Convertible Senior Secured Notes due 2017





     This is a Fundamental Change Purchase Notice as defined in Section 5.01(c) of the Indenture
dated as of [•], 2011 (the “Indenture”) by and among the Company, the guarantors from time to time
party thereto and U.S. Bank National Association, as Trustee. Terms used but not defined herein
shall have the meanings ascribed to them in the Indenture.



Certificate No(s). of Securities: _____________________________

(if certificated)




     I intend to deliver the following aggregate principal amount of Securities for purchase by the
Company pursuant to Section 5.01 of the Indenture (in integral multiples of $1,000):


$________________________




     I hereby agree that the Securities will be purchased by the Company as of the Fundamental
Change Purchase Date pursuant to the terms and conditions thereof and of the Indenture.



Signed: ________________________




 









 





EXHIBIT B




ARTICLE [__]

SUBORDINATION




     Section 1.1.
Agreement to Subordinate. The Company [and each
Guarantor]33 agrees,
and each holder of Securities by accepting a Security agrees, that the indebtedness evidenced by
the Security [and any Guarantee therefor] is subordinated in right of payment, to the extent and in
the manner provided in this Article [__], to the prior payment in full (other than contingent
indemnification obligations for which no claim has been asserted) in cash or other consideration
satisfactory to holders of Senior Debt of all Senior Debt (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.



     Section 1.2. Liquidation, Dissolution, Bankruptcy. Upon any distribution to creditors of the
Company [or any Guarantor] in a liquidation or dissolution of the Company [or such Guarantor] or in
a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the
Company [or such Guarantor] or its property, any assignment for the benefit of creditors or any
marshaling of the Company’s [or such Guarantor’s] assets and liabilities:



          (a) holders of Senior Debt shall be entitled to receive payment in full of all obligations due
in respect of such Senior Debt (including interest accruing after, or which would accrue but for,
the commencement of any such proceeding at the rate specified in the applicable Senior Debt,
whether or not the claim for such interest would be allowed) in cash or other consideration
satisfactory to the holders of the Senior Debt before holders of Securities [and any Guarantees
therefor] shall be entitled to receive any payment with respect to the Securities [or such
Guarantees]; and




          (b) until all Senior Debt is paid in full in cash or other consideration satisfactory to the
holders of the Senior Debt, any distribution to which holders of Securities would be entitled but
for this Article [__] shall be made to holders of Senior Debt, as their interests may appear.




     Section 1.3. Default on Senior Debt and/or Designated Senior Debt.



          (a) In the event of any default in payment of the principal of or premium, if any, or interest
on, or any other payment obligation under any Senior Debt beyond any applicable grace period with
respect thereto (a “Payment Default”), then, until all such payments due in respect of such Senior
Debt have been paid in full in cash or other consideration satisfactory to holders of Senior Debt
or such default shall have been cured or waived or shall have ceased to exist, no payment shall be
made by the Company with respect to the principal of, or interest on the Securities or to acquire
any of the Securities (including any purchase pursuant to the right of a Holder pursuant to
_________________) [and no payment shall be made by any Guarantor on its Guarantee].






 




			
	33	 	References to Guarantors and Guarantees to be included if the Subordinated Debt is guaranteed.




 









 










          (b) In addition, if the Trustee shall receive written notice from one or more holders of
Designated Senior Debt or one or more representatives of such holder or holders that there has
occurred and is continuing under such Designated Senior Debt, or any agreement pursuant to which
such Designated Senior Debt is issued, any default (other than a Payment Default), which default
shall not have been cured or waived, giving the holders of such Designated Senior Debt the right to
declare such Designated Senior Debt immediately due and payable (a “Payment Blockage Notice”),
then, anything contained in this [Indenture] to the contrary notwithstanding, no payment on account
of the principal of or interest on the Securities, and no repurchase or other acquisition of the
Securities, shall be made by or on behalf of the Company [any no payment on its Guarantee shall be
made by or on behalf of any Guarantor] during the period (the “Payment Blockage Period”) commencing
on the date of receipt of the Payment Blockage Notice and ending on the earlier of 179 calendar
days thereafter or the date on which such non-Payment Default is cured or waived or shall have
ceased to exist.




     Notwithstanding the provisions described in the immediately preceding sentence (but subject to
the provisions contained in Section [1.1] and the first clause of this Section [1.3]), unless the
holder(s) of such Designated Senior Debt or the representative(s) of such holder(s) shall have
accelerated the maturity of such Designated Senior Debt, the Company may resume payments on the
Securities [and the Guarantors may resume payments on the Guarantees] after the end of such Payment
Blockage Period. No new Payment Blockage Period may be commenced unless 365 calendar days have
elapsed since the effectiveness of the prior Payment Blockage Notice. No default under Designated
Senior Debt that is not a Payment Default that existed or was continuing on the date of delivery of
any Payment Blockage Notice delivered to the Trustee shall be, or be made, the basis of a
subsequent Payment Blockage Notice.



          (c) In the event any judicial proceeding shall be pending with respect to any Payment Default
with respect to Senior Debt or non-payment default with respect to Designated Senior Debt, then,
anything contained in this Indenture to the contrary notwithstanding, no payment on account of the
principal of or interest on the Securities, and no repurchase or other acquisition of the
Securities, shall be made by or on behalf of the Company [and no payment on any Guarantee shall be
made by or on behalf of any Guarantor].




     Section 1.4. Acceleration of Securities. In the event of the acceleration of the Securities
because of an Event of Default, the Company may not make any payment or distribution to the Trustee
or any holder of Securities in respect of any obligations with respect to Securities and may not
acquire or purchase from the Trustee or any holder of Securities any Securities [and no Guarantor
may make any payment or distribution to the Trustee or any holder of any Guarantee in respect of
any of its obligations under any Guarantee] until all Senior Debt has been paid in full in cash or
other consideration satisfactory to holders of Senior Debt or such acceleration has been rescinded
in accordance with the terms of this Indenture.



     If payment of the Securities is to be accelerated because of an Event of Default (other than
Events of Default that result in an automatic acceleration of Securities), the Company shall
promptly notify holders of Senior Debt or trustee(s) of such Senior Debt before the acceleration.



     Section 1.5. When Distribution Must Be Paid Over. In the event that the Trustee, any holder
of Securities [or any Guarantee] or any other person receives any payment or distribution of



-2-









 




assets of the Company [or any Guarantor] of any kind with respect to the Securities [or the
Guarantees] in contravention of any terms contained in this Indenture, whether in cash, property or
securities, including, without limitation, by way of set-off or otherwise, then such payment or
distribution shall be held by the recipient in trust for the benefit of holders of Senior Debt, and
shall be immediately paid over and delivered to the holders of Senior Debt or their
representative(s), to the extent necessary to make payment in full in cash or other consideration
satisfactory to the holders of the Senior Debt remaining unpaid, after giving effect to any
concurrent payment or distribution or provision therefor, to or for the holders of Senior Debt;
provided, that the foregoing shall apply to the Trustee only if a Responsible Officer of the
Trustee has actual knowledge (as determined in accordance with Section [__] that such payment or
distribution is prohibited by this Indenture.




     With respect to the holders of Senior Debt, the Trustee undertakes to perform only such
obligations on the part of the Trustee as are specifically set forth in this Article [__], and no
implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the Trustee shall pay over
or distribute to or on behalf of holders of Securities or the Company [, the Guarantors] or any
other person money or assets to which any holders of Senior Debt shall be entitled by virtue of
this Article [__], except if such payment or distribution is made as a result of the willful
misconduct or negligence of the Trustee.



     Section 1.6. Notice by Company. The Company shall promptly notify the Trustee of any facts
known to the Company that would cause a payment of any obligations with respect to the Securities
or the purchase of any Securities by the Company [or the payment by any Guarantor on its Guarantee]
to violate this Article [__], but failure to give such notice shall not affect the subordination of
the Securities [and the Guarantees therefor] to the Senior Debt as provided in this Article [__].



     Section 1.7. Subrogation. After all Senior Debt is paid in full and until the Securities are
paid in full, holders of Securities [and Guarantees therefor] shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Securities [and the Guarantees]) to the
rights of holders of Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the holders of Securities have been applied to the payment
of Senior Debt. A distribution made under this Article [__] to holders of Senior Debt that
otherwise would have been made to holders of Securities is not, as between the Company and holders
of Securities, a payment by the Company on the Securities.



     Section 1.8. Relative Rights. This Article [___] defines the relative rights of holders of
Securities [and Guarantees therefor] and holders of Senior Debt. Nothing contained in this
Indenture shall otherwise:



          (a) impair, as between the Company and holders of Securities, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest on the Securities in
accordance with their terms [or impair, as between any Guarantor and the holders of Securities, the
obligation of such Guarantor, which is absolute and unconditional, to make payments on its
Guarantee];







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          (b) affect the relative rights of holders of Securities and creditors (other than with respect
to Senior Debt) of the Company [or any Guarantor], other than their rights in relation to holders
of Senior Debt; or




          (c) prevent the Trustee or any holder of Securities [and any Guarantee therefor] from
exercising its available remedies upon a Default or Event of Default, subject to the notice
requirements of Section [__] and to the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to holders of Securities [and Guarantees therefor].




     If the Company fails because of this Article [__] to pay principal of or interest on a
Security on the due date (after the expiration of any applicable grace period), the failure is
still a Default or Event of Default.



     Section 1.9. Subordination May Not Be Impaired by Company. No right of any holder of Senior
Debt to enforce the subordination of the indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company [, any Guarantor] or any holder of Securities or by the
failure of the Company [, any Guarantor] or any such holder to comply with this Indenture.



     Section 1.10. Distribution or Notice to Representative. Whenever a distribution is to be made
or a notice given to holders of Senior Debt, the distribution may be made and the notice given to
their representative(s).



     Upon any payment or distribution of assets of the Company [or any Guarantor] referred to in
this Article [__], the Trustee and the holders of Securities shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any certificate of such
representative or of the liquidating trustee or agent or other person making any distribution to
the Trustee or to the holders of Securities for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article [__].



     Section 1.11. Rights of Trustee and Paying Agent. The Company shall give prompt written
notice to the Trustee of any fact known to the Company that would prohibit the making of any
payment to or by the Trustee in respect of the Securities [and the Guarantees therefor].
Notwithstanding the provisions of this Article [___] or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the
making of any payment or distribution by the Trustee (other than pursuant to Section [__]), and the
Trustee may continue to make payments on the Securities, unless a Responsible Officer shall have
received at least two Business Days prior to the date of such payment or distribution written
notice of facts that would cause such payment or distribution with respect to the Securities [or
any Guarantee therefor] to violate this Article [__]. Only the Company or the holder or
representative of any class of Senior Debt may give such notice.



     Nothing contained in this Article [__]shall impair the claims of, or payments to, the Trustee
under or pursuant to Section [__].



     The Trustee in its individual or any other capacity may hold Senior Debt with the same rights
it would have if it were not Trustee. Any agent may do the same with like rights.



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     Section 1.12. Authorization to Effect Subordination. Each holder of a Security by such
holder’s acceptance thereof authorizes and directs the Trustee on the holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination as provided in this
Article [__], and appoints the Trustee to act as the holder’s attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of debt in the form
required in any proceeding referred to in Section [__] at least 30 days before the expiration of
the time to file such claim, the holders of any Senior Debt or their representatives are hereby
authorized to file an appropriate claim for and on behalf of the holders of the Securities.



     Section 1.13. Article Applicable to Paying Agents. In case at any time any paying agent for
the Securities other than the Trustee shall have been appointed by the Company and be then acting
hereunder, the term “Trustee” as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such paying agent within its meaning
as fully for all intents and purposes as if such paying agent were named in this Article in
addition to or in place of the Trustee.



     Section 1.14. Senior Debt Entitled to Rely. The holders of Senior Debt shall have the right
to rely upon this Article [__], and no amendment or modification of the provisions contained herein
shall diminish or adversely affect the rights of such holders of Senior Debt outstanding at the
time of such amendment or modification unless such holders shall have agreed in writing thereto.



     Section 1.15. Permitted Payments. Notwithstanding anything to the contrary contained in this
Article [__], the holders of Securities may receive and retain at any time on or prior to the
Maturity Date (a) securities that are subordinated to at least the same extent as the Securities to
(i) Senior Debt and (ii) any securities issued in exchange for Senior Debt and (b) payments and
other distributions made from any trust created pursuant to Article [__]. The holders of Securities
may receive and retain the following so long as such payment, repurchase, redemption, defeasance or
acquisition was not made at a time otherwise prohibited by this Article [__]: (x) any regularly
scheduled payments of interest, and (y) consideration related to any repurchase, redemption,
defeasance or other acquisition or retirement for value of the Securities upon a change of control
transaction to the extent (i) required by the agreement governing such Securities and (ii)
permitted by each agreement governing Senior Debt.



     Section 1.16. No Waiver of Subordination Provisions. No right of any present or future holder
of any Senior Debt to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company [or any Guarantor],
or by any non-compliance by the Company [or any Guarantor] with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise
charged with.



     Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Debt may, at any time and from time to time, without the consent of or notice to the Trustee or the
holders of the Securities, without incurring responsibility to the holders of the Securities and
without impairing or releasing the subordination provided in this Article [__] or the obligations
hereunder of
the holders of the Securities to the holders of Senior Debt, do any one or more of the
following, subject to any rights of the Company [and any Guarantor] in respect thereof: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or



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otherwise amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding or related thereto; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any person liable in any manner for the collection of Senior Debt; and
(iv) exercise or refrain from exercising any rights or remedies against the Company [, any
Guarantor] and any other person.



     Section 1.17.
Certain Conversions Deemed
Payment.34 For the purposes of this
Article [__] only, (i) the issuance and delivery of junior securities upon conversion of Securities
in accordance with Article [__] shall not be deemed to constitute a payment or distribution on
account of the principal of or premium or interest on Securities or on account of the purchase or
other acquisition of Securities, and (ii) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Article [__], property or securities (other than
junior securities)) upon conversion of a Security shall be deemed to constitute payment on account
of the principal of such Security. For the purposes of this Section, the term “junior securities”
means (a) shares of common stock of the Company and securities into which the Securities are
convertible pursuant to Article [__] and (b) securities of the Company which are subordinated in
right of payment to all Senior Debt which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article [__]. Nothing contained in this Article [__] or
elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the Securities, the
right, which is absolute and unconditional, of the Holder of any Security to convert such Security
in accordance with Article [__].



     Defined Terms:



     “Capital Stock” means, with respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however designated, whether
voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the
profits and losses, and a distribution of assets, after liabilities, of such Person.



     “Company” means Evergreen Solar, Inc., a Delaware corporation, together with any successor
thereto permitted under the Indenture.



     “Default” has the meaning specified in [add reference to the applicable provision].



     “Designated Senior Debt” means the obligations of the Company [or any Guarantor] under (a) the
Company’s 13% Convertible Senior Secured Notes due 2015, (b) the Company’s 7.5% Convertible Senior
Secured Notes due 2017, and (c) any Senior Debt in which the instrument creating or evidencing the
same or any related agreements or documents to which the Company is a
party expressly provides that such Senior Debt shall be “Designated Senior Debt” for purposes
of this Indenture; provided that the instrument, agreement or other document may place limitations
and conditions on the right of the Senior Debt to exercise the rights of Designated Senior Debt.





 




			
	34	 	Include if the Securities are convertible into Qualified Equity Interests of the Company.




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     “Event of Default” has the meaning specified in Section [__].



     “Fundamental Change” has the meaning specified in [add reference to the applicable provision].



     [“Guarantor” means (i) each Wholly Owned Domestic Subsidiary that Guarantees the Securities on
the Issue Date and (ii) each other Wholly Owned Domestic Subsidiary that executes a supplemental
indenture providing for the guaranty of the payment of the Securities, or any successor obligor
under its Note Guaranty pursuant to Article [__], in each case unless and until such Guarantor is
released from its Note Guaranty pursuant to this Indenture.]



     “Indebtedness” means, with respect to any Person, without duplication, (1) all indebtedness of
such Person in respect of the 2015 Notes, including any guaranty obligations in respect thereof;
(1) all indebtedness of such Person in respect of the 2017 Notes, including any guaranty
obligations in respect thereof and (3) [other indebtedness specified in the indenture governing the
Securities.]



     “Indenture” means [add reference to indenture or other agreement pursuant to which the
Securities are issued or the debt is incurred.]



     “Maturity Date” means [insert maturity date of the Securities].



     “Securities” means [add reference to the applicable securities].



     “Senior Debt” means, with respect to any Person, without duplication, the principal of,
premium, if any, interest, including any interest accruing after the commencement of any bankruptcy
or similar proceeding, whether or not a claim for post-petition interest is allowed as a claim in
the proceeding, and all fees, costs, expenses and other amounts accrued or due on or in connection
with (1) the 2015 Notes (and any guarantees in respect thereof), (2) the 2017 Notes (and any
guarantees in respect thereof) and (3) [other indebtedness specified in the indenture governing the
Securities]. “Senior Debt” does not include:



          (a) Indebtedness that expressly provides that such Indebtedness shall not be senior in right
of a payment to the Securities or expressly provides that such Indebtedness is on the same basis or
junior to the Securities;




          (b) any Indebtedness to any Subsidiary, other than Indebtedness to a Subsidiary arising by
reason of guarantees by the Company [or a Guarantor] of Indebtedness of such Subsidiary to a Person
that is not a Subsidiary; and




          (c) [such other indebtedness specified in the indenture governing the Securities, other than
any principal, premium, interest, fees, costs, expenses or other amounts accrued or due on or in
connection with the 2015 Notes (and any guarantees in respect thereof) and the 2017 Notes (and any
guarantees in respect thereof)].




     “Subsidiary” means with respect to any Person, any corporation, association or other business
entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by,
or, in the case of a partnership, the sole general partner or the managing partner or the



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only
general partners of which are, such Person and one or more Subsidiaries of such Person (or a
combination thereof). Unless otherwise specified, “Subsidiary” means a Subsidiary of the Company.



     “Trustee” means ______________, as trustee under the Indenture, until a successor replaces it
pursuant to the applicable provisions of the Indenture, and, thereafter, shall mean such successor
Trustee.



     “Voting Stock” means, with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.



-8-









 





EXHIBIT C




 




EVERGREEN SOLAR, INC.




as Issuer



[Guarantors]




AND




U.S. BANK NATIONAL ASSOCIATION




as Trustee



 






SUPPLEMENTAL INDENTURE




Dated as of _____________, ____



 






7.5% Convertible Senior Secured Notes due 2017




      




 









 





     SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of __________, ____, among
Evergreen Solar, Inc., a Delaware corporation, as Issuer (the “Company”), [INSERT EACH GUARANTOR
EXECUTING THIS SUPPLEMENTAL INDENTURE AND ITS JURISDICTION OF INCORPORATION] (each a “Guarantor”)
and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”).



RECITALS




     WHEREAS, the Company, the Guarantors party thereto and the Trustee entered into the Indenture,
dated as of [•], 2011 (the “Indenture”), relating to the Company’s 7.5% Convertible Senior Secured
Notes due 2017 (the “Securities”); and



     WHEREAS, as a condition to the Trustee entering into the Indenture and the purchase of the
Securities by the Holders, the Company agreed, subject to certain exceptions, pursuant to Section
4.19 of the Indenture, to cause any Wholly Owned Domestic Subsidiary (other than any such
Subsidiary that is an Excluded Subsidiary) to provide a Note Guaranty.



     NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein contained
and intending to be legally bound, the parties hereto hereby agree as follows:



     Section 1. Defined Terms. Capitalized terms used herein and not otherwise defined herein are
used herein as defined in the Indenture.



     Section 2. Guaranty. Each Guarantor, by its execution of this Supplemental Indenture, agrees
to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to
Guarantors, including, but not limited to, Article 8 thereof.



     Section 3. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     Section 4. Successors. All agreements of the Company and of each Guarantor in this
Supplemental Indenture shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successors.



     Section 5. Multiple Originals. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Supplemental Indenture.



     Section 6. Amendment. This Supplemental Indenture is an amendment supplemental to the
Indenture and said Indenture and this Supplemental Indenture shall henceforth be read together.



[Remainder of the page intentionally left blank.]






 









 







          IN WITNESS WHEREOF, the parties have duly executed and delivered this Supplemental Indenture
or have caused this Supplemental Indenture to be duly executed on their respective behalf by their
respective officers thereunto duly authorized, as of the day and year first above written.




	 	 	 	 	 	 	 

	 	 	EVERGREEN SOLAR, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[GUARANTOR]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, 
  
as Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title: