EX-4.7






Exhibit 4.7




 





YINGLI GREEN ENERGY HOLDING COMPANY LIMITED




as the Company




YINGLI POWER HOLDING COMPANY LTD.

MR. LIANSHENG MIAO

as the Guarantors




YINGLI POWER HOLDING COMPANY LTD.




as the Chargor




and




DB TRUSTEES (HONG KONG) LIMITED

as the Trustee




 






INDENTURE




Dated January 16, 2009




 






10.0% Guaranteed Senior Secured Convertible Notes due 2012




 















 




TABLE OF CONTENTS



	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1
	 	 	 	 
	 
	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	Section 1.01.   Definitions
	 	 	2	 
	Section 1.02.   Rules of Construction
	 	 	21	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	 
	 	 	 	 
	ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
	 	 	 	 
	 
	 	 	 	 
	Section 2.01.   Designation Amount and Issue of Notes
	 	 	22	 
	Section 2.02.   Form of Notes
	 	 	22	 
	Section 2.03.   Date and Denomination of Notes; Payments of Interest
	 	 	23	 
	Section 2.04.   Execution of Notes
	 	 	23	 
	Section 2.05.   Transfer and Exchange
	 	 	24	 
	Section 2.06.   Mutilated, Destroyed, Lost or Stolen Notes
	 	 	25	 
	Section 2.07.   [Reserved]
	 	 	26	 
	Section 2.08.   Cancellation of Notes
	 	 	26	 
	Section 2.09.   Defaulted Interest
	 	 	27	 
	Section 2.10.   Holder Lists
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	 
	 	 	 	 
	REDEMPTION AND REPURCHASE OF NOTES
	 	 	 	 
	 
	 	 	 	 
	Section 3.01.   Redemption at Maturity
	 	 	27	 
	Section 3.02.   Offer to Purchase
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	 
	 	 	 	 
	PARTICULAR COVENANTS OF THE COMPANY
	 	 	 	 
	 
	 	 	 	 
	Section 4.01.   Payment of Principal and Interest
	 	 	30	 
	Section 4.02.   Maintenance of Office or Agency
	 	 	30	 
	Section 4.03.   Provisions as to Paying Agent
	 	 	31	 
	Section 4.04.   Existence
	 	 	32	 
	Section 4.05.   Maintenance of Properties
	 	 	32	 
	Section 4.06.   Payment of Taxes and Other Claims
	 	 	32	 
	Section 4.07.   Stay, Extension and Usury Laws
	 	 	32	 






i








 






	 	 	 	 	 
	 	 	Page	 
	Section 4.08.   Payments for Consent
	 	 	33	 
	Section 4.09.   Incurrence of Additional Debt; Financial Covenants
	 	 	33	 
	Section 4.10.   Restricted Payments
	 	 	33	 
	Section 4.11.   Liens; Negative Pledge
	 	 	33	 
	Section 4.12.   Affiliate Transactions
	 	 	34	 
	Section 4.13.   Repurchase at the Option of Holders Following a Change of Control
	 	 	35	 
	Section 4.14.   Business Activities; Charter Documents
	 	 	35	 
	Section 4.15.   Amendments to Security Documents
	 	 	35	 
	Section 4.16.   Use of Proceeds
	 	 	35	 
	Section 4.17.   Repurchase Upon Termination of Trading
	 	 	35	 
	Section 4.18.   Government Approvals and Licenses; Compliance with Law
	 	 	36	 
	Section 4.19.   Engage Qualified Auditing Firms
	 	 	36	 
	Section 4.20.   Notes to Rank Senior
	 	 	36	 
	Section 4.21.   Compliance Certificate
	 	 	36	 
	Section 4.22.   Reports by the Company and Provision of Information
	 	 	37	 
	Section 4.23.   Rights Agreement
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	 
	 	 	 	 
	SUCCESSORS
	 	 	 	 
	 
	 	 	 	 
	Section 5.01.   Merger, Consolidation and Sale of Assets
	 	 	38	 
	Section 5.02.   Successor Corporation Substituted
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	 
	 	 	 	 
	REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
	 	 	 	 
	 
	 	 	 	 
	Section 6.01.   Events of Default
	 	 	39	 
	Section 6.02.   Payments of Notes on Default; Suit Therefor
	 	 	42	 
	Section 6.03.   Other Remedies
	 	 	43	 
	Section 6.04.   Application of Monies Collected by Trustee
	 	 	44	 
	Section 6.05.   Proceedings by Noteholder
	 	 	44	 
	Section 6.06.   Proceedings by Trustee
	 	 	45	 
	Section 6.07.   Remedies Cumulative and Continuing
	 	 	46	 
	Section 6.08.   Direction of Proceedings and Waiver of Defaults by Majority of Holders of the Notes
	 	 	46	 
	Section 6.09.   Notice of Default
	 	 	46	 
	Section 6.10.   Undertaking to Pay Costs
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	 
	 	 	 	 
	THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 7.01.   Duties and Responsibilities of Trustee
	 	 	47	 
	Section 7.02.   Rights of Trustee
	 	 	49	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 7.03.   No Responsibility for Recitals, Etc.
	 	 	51	 
	Section 7.04.   Trustee, Paying Agents, Conversion Agents, Collateral Agents or Registrar May Own Notes
	 	 	51	 
	Section 7.05.   Monies to Be Held in Trust
	 	 	51	 
	Section 7.06.   Compensation and Expenses of Trustee
	 	 	51	 
	Section 7.07.   Eligibility and Disqualification of Trustee
	 	 	53	 
	Section 7.08.   Resignation or Removal of Trustee
	 	 	53	 
	Section 7.09.   Acceptance by Successor Trustee
	 	 	54	 
	Section 7.10.   Succession by Merger
	 	 	54	 
	Section 7.11.   Trustee’s Application for Instructions from the Company
	 	 	55	 
	Section 7.12.   Certain Provisions
	 	 	55	 
	Section 7.13.   Discretion of the Trustee
	 	 	56	 
	Section 7.14.   Force Majeure
	 	 	56	 
	Section 7.15.   Acceleration
	 	 	56	 
	Section 7.16.   Error of Judgment
	 	 	56	 
	Section 7.17.   Event of Default
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	 
	 	 	 	 
	SUPPLEMENTAL INDENTURES
	 	 	 	 
	 
	 	 	 	 
	Section 8.01.   Supplemental Indentures Without Consent of Noteholders
	 	 	56	 
	Section 8.02.   Supplemental Indenture with Consent of Noteholders
	 	 	58	 
	Section 8.03.   Effect of Supplemental Indenture
	 	 	59	 
	Section 8.04.   Notation on Notes
	 	 	60	 
	Section 8.05.   Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee
	 	 	60	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	 
	 	 	 	 
	GUARANTEES
	 	 	 	 
	 
	 	 	 	 
	Section 9.01.   Guarantee
	 	 	60	 
	Section 9.02.   Limitation on Guarantor Liability
	 	 	60	 
	Section 9.03.   Execution and Delivery of Guarantee
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	 
	 	 	 	 
	COLLATERAL AND SECURITY
	 	 	 	 
	 
	 	 	 	 
	Section 10.01.   Security Documents
	 	 	61	 
	Section 10.02.   Release of Collateral
	 	 	62	 
	Section 10.03.   Authorization of Actions to Be Taken by the Trustee Under the Security Documents
	 	 	62	 
	Section 10.04.   Authorization of Receipt of Funds by the Trustee Under the Security Documents
	 	 	63	 





iii








 





	 	 	 	 	 
	 	 	Page	 
	Section 10.05.   Termination of Security Interest
	 	 	63	 
	Section 10.06.   Appointment of Collateral Agent
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	 
	 	 	 	 
	SURETYSHIP WAIVERS
	 	 	 	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	 
	 	 	 	 
	SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	 	 
	 
	 	 	 	 
	Section 12.01.   Discharge of Indenture
	 	 	65	 
	Section 12.02.   Deposited Monies to Be Held in Trust by Trustee
	 	 	66	 
	Section 12.03.   Paying Agent to Repay Monies Held
	 	 	66	 
	Section 12.04.   Return of Unclaimed Monies
	 	 	66	 
	Section 12.05.   Reinstatement
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 13
	 	 	 	 
	 
	 	 	 	 
	THE NOTEHOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 13.01.   Action by Noteholders
	 	 	66	 
	Section 13.02.   Proof of Execution by Noteholders
	 	 	67	 
	Section 13.03.   Who Are Deemed Absolute Owners
	 	 	67	 
	Section 13.04.   Company-owned Notes Disregarded
	 	 	67	 
	Section 13.05.   Revocation of Consents; Future Holders Bound
	 	 	68	 
	 
	 	 	 	 
	ARTICLE 14
	 	 	 	 
	 
	 	 	 	 
	MEETINGS OF NOTEHOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 14.01.   Purpose of Meetings
	 	 	68	 
	Section 14.02.   Call of Meetings by Company or Noteholders
	 	 	68	 
	Section 14.03.   Qualifications for Voting
	 	 	69	 
	Section 14.04.   Regulations
	 	 	69	 
	Section 14.05.   Voting
	 	 	70	 
	Section 14.06.   No Delay of Rights by Meeting
	 	 	70	 
	 
	 	 	 	 
	ARTICLE 15
	 	 	 	 
	 
	 	 	 	 
	CONVERSION OF NOTES
	 	 	 	 
	 
	 	 	 	 
	Section 15.01.   Right to Convert
	 	 	70	 






iv








 






	 	 	 	 	 
	 	 	Page	 
	Section 15.02.   Exercise of Conversion Right; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends
	 	 	71	 
	Section 15.03.   Cash Payments in Lieu of Fractional Shares
	 	 	72	 
	Section 15.04.   Conversion Rate
	 	 	72	 
	Section 15.05.   Adjustment of Conversion Rate
	 	 	72	 
	Section 15.06.   Effect of Reclassification, Consolidation, Merger or Sale
	 	 	80	 
	Section 15.07.   Taxes on Shares Issued
	 	 	81	 
	Section 15.08.   Reservation of Shares; Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock
	 	 	81	 
	Section 15.09.   Responsibility of the Conversion Agent
	 	 	82	 
	Section 15.10.   Notice to Holders Prior to Certain Actions
	 	 	82	 
	Section 15.11.   Shareholder Rights Plans
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 16
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 16.01.   Provisions Binding on Company’s Successors
	 	 	84	 
	Section 16.02.   Official Acts by Successor Corporation
	 	 	84	 
	Section 16.03.   Addresses for Notices, Etc.
	 	 	84	 
	Section 16.04.   Governing Law, Consent to Jurisdiction and Service of Process
	 	 	85	 
	Section 16.05.   Evidence of Compliance with Conditions Precedent; Certificates to Trustee
	 	 	86	 
	Section 16.06.   Legal Holidays
	 	 	86	 
	Section 16.07.   Company Responsible for Making Calculations
	 	 	87	 
	Section 16.08.   Benefits of Indenture
	 	 	87	 
	Section 16.09.   Table of Contents, Headings, Etc.
	 	 	87	 
	Section 16.10.   Authenticating Agent
	 	 	87	 
	Section 16.11.   Indenture and Notes Solely Corporate Obligations
	 	 	88	 
	Section 16.12.   Execution in Counterparts
	 	 	88	 
	Section 16.13.   Severability
	 	 	88	 
	Section 16.14.   Appointment of Co-Trustee
	 	 	88	 






Exhibit A  -      FORM OF NOTE

Exhibit B  -       FORM OF NOTATION OF GUARANTEE

Exhibit C - 1  -  FORM OF CERTIFICATE OF TRANSFER

Exhibit C - 2  -  FORM OF TRANSFER INSTRUMENT

Exhibit D -       FORM OF RESTRICTIVE LEGEND FOR COMMON STOCK ISSUED UPON CONVERSION

Exhibit E  -        FORM OF YGE SHARE CHARGE


v








 








INDENTURE




     INDENTURE dated January 16, 2009, among YINGLI GREEN ENERGY HOLDING COMPANY LIMITED, a company
incorporated in the Cayman Islands (hereinafter called the “Company”), the parties listed
on the signature pages hereto, and DB TRUSTEES (HONG KONG) LIMITED, a company incorporated under
the laws of Hong Kong, as trustee hereunder (hereinafter called the “Trustee”).



WITNESSETH:




     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
10.0% Guaranteed Senior Secured Convertible Notes due 2012 (hereinafter called the
“Notes”), in an aggregate principal amount of $50,000,000 and, to provide the terms and
conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and



     WHEREAS, for its lawful corporate purposes, each Guarantor has duly authorized the issue of
its Guarantee of the Notes and, to provide the terms and conditions upon which the Guarantee is to
be issued and delivered, each Guarantor has duly authorized the execution and delivery of this
Indenture; and



     WHEREAS, for its lawful corporate purposes, the Chargor has duly authorized the issue of the
Security Document executed by it as security for the Notes and, to provide the terms and conditions
upon which the Security Document is to be issued and delivered, the Chargor has duly authorized the
execution and delivery of this Indenture; and



     WHEREAS, the Notes, the Security Documents, the certificate of authentication to be borne by
the Notes, a form of notation of Guarantee, a form of Assignment, a form of Purchase Notice and a
form of Conversion Notice to be borne by the Notes are to be substantially in the forms hereinafter
provided for; and



     WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company, and to constitute this
Indenture a valid agreement according to its terms, have been done and performed, and the execution
of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized,



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     That in order to declare the terms and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the premises and of the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:













 





ARTICLE 1




DEFINITIONS




     Section 1.01.   Definitions. 



     The terms defined in this Section (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings assigned to such terms in the
Securities Act as in force at the date of the execution of this Indenture. The words “herein”,
“hereof”, “hereunder” and words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this Article include the
plural as well as the singular.



     “ADR” means an American Depositary Receipt issued pursuant to the Deposit Agreement
and evidencing ADSs.



     “ADS” means an American Depositary Share listed on the New York Stock Exchange under
the symbol “YGE” and representing one ordinary share of Common Stock of the Company.



     “Affiliate” of any specified Person means:



     (a) any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, or



     (b) any other Person who is a director or officer of:



               (i) such specified Person,



               (ii) any Subsidiary of such specified Person, or



               (iii) any Person described in clause (a) above.



     For the purposes of this definition, “control,” when used with respect to any 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. “Affiliate” shall also mean any
Beneficial Owner of shares representing 10% or more of the total voting power of the Voting Stock
of the Company or any of its Subsidiaries or of rights or warrants to purchase such Voting Stock
(whether or not currently exercisable) and any Person who would be an Affiliate of any such
Beneficial Owner pursuant to the first sentence hereof. Notwithstanding the foregoing, in no event
shall any Person or any of its Affiliates be considered an Affiliate of the Company solely as a
result of such Person being a Noteholder hereunder.



     “Agent” means any Registrar, Paying Agent, Conversion Agent or Collateral Agent.



     “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at any date
of determination,



2








 





     (a) if such Sale and Leaseback Transaction is a Capital Lease Obligation, the amount of Debt
represented thereby according to the definition of “Capital Lease Obligations,” and



     (b) in all other instances, the greater of (i) the fair market value of the Property subject
to such Sale and Leaseback Transaction, and (ii) the present value (discounted at the weighted
average interest rate borne by the Notes, compounded annually in the most recently completed twelve
months) of the total obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Leaseback Transaction (including any period for which such lease
has been extended).



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency,
moratorium, administration, debt adjustment, winding up, liquidation, reorganization, relief of
debtors or any similar law now or hereafter in effect.



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act. The terms “Beneficially Owns” and “Beneficially Owned” have a
corresponding meaning.



     “Board of Directors” means (a) in respect of a corporation, the board of directors of
the corporation, or (except if used in the definition of “Change of Control”) any duly authorized
committee thereof; and (b) in respect of any other Person, the board or committee of that Person
serving an equivalent function.



     “Board Resolution” of a Person means a copy of a resolution (in form and substance
satisfactory to the Trustee) certified by the secretary or an assistant secretary (or individual
performing comparable duties) of the applicable Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.



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



     “Capital Lease Obligations” means any obligation under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP; and the amount of Debt
represented by such obligation shall be the capitalized amount of such obligations determined in
accordance with GAAP.



     “Capital Stock” means, with respect to any Person, any shares or other equivalents
(however designated) of any class of corporate stock or partnership interests or any other
participations, rights, warrants, options or other interests in the nature of an equity interest in
such Person, including Preferred Stock, and in the case of YGE shall include ADRs and ADSs.



     “Capital Expenditure” means any expenditure or obligation in respect of expenditure
which in accordance with GAAP is treated as capital expenditure and including the capital element
of any expenditure or obligation incurred in connection with a finance or capital lease.



     “Cash” means, at any time, cash at bank and credited to an account in the name of any
member of the Company and its Subsidiaries with a reputable financial institution and to which the
relevant member of the Company and its Subsidiaries is alone beneficially entitled and for so long
as (a) that cash is repayable on demand; (b) repayment of that cash is not contingent on the prior
discharge of any other indebtedness of any Company and its Subsidiaries or of any other person
whatsoever or on the satisfaction of any other



3









 







condition; (c) there is no security over that cash; and (d) such cash is freely and
immediately available to be applied in repayment or prepayment of the Facility.



     “Cash Equivalents” means any of the following:



     (a) Investments in U.S. Government Securities maturing within 365 days of the date of
acquisition thereof;



     (b) Investments in time deposit accounts, certificates of deposit and money market deposits
maturing within 90 days of the date of acquisition thereof issued by a bank or trust company
organized under the laws of the United States of America or any state thereof having capital,
surplus and undivided profits aggregating in excess of $500,000,000 and whose long-term debt is
rated “A-3” or “A-” or higher according to Moody’s or S&P (or such similar equivalent rating by at
least one “nationally recognized statistical rating organization” (as defined in Rule 436 under the
Securities Act));



     (c) repurchase obligations with a term of not more than 30 days for underlying securities of
the types described in clause (a) entered into with:




     (i) a bank meeting the qualifications described in clause (b) above, or




     (ii) any primary government securities dealer reporting to the Market Reports Division
of the Federal Reserve Bank of New York;



     (d) Investments in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company) organized and in
existence under the laws of the United States of America with a rating at the time as of which any
Investment therein is made of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according
to S&P (or such similar equivalent rating by at least one “nationally recognized statistical rating
organization” (as defined in Rule 436 under the Securities Act)); and



     (e) direct obligations (or certificates representing an ownership interest in such
obligations) of any state of the United States of America (including any agency or instrumentality
thereof) for the payment of which the full faith and credit of such state are pledged and which are
not callable or redeemable at the issuer’s option, provided that:




     (i) the long-term debt of such state is rated “A-3” or “A-” or higher according to
Moody’s or S&P (or such similar equivalent rating by at least one “nationally recognized
statistical rating organization” (as defined in Rule 436 under the Securities Act)), and




     (ii) such obligations mature within 180 days of the date of acquisition thereof.



     “Cash Flow” means, in respect of any relevant period, EBITDA for that relevant
period  after:
adding back




	 	(a)	 	the amount by which Working Capital as of the beginning of such period exceeds
Working Capital as of the end of such period;
	 
	 	(b)	 	any cash receipt during such period in respect of any exceptional or
extraordinary item;




4









 






	 	(c)	 	any increase in provisions, non-cash debits and other non-cash charges (which are
not Current Assets or Current Liabilities) taken into account in establishing EBITDA;





     and deducting




	 	(d)	 	any amount of Capital Expenditure actually made during that period by the Company
and its Subsidiaries;
	 
	 	(e)	 	the amount by which Working Capital as of the end of such period is greater than
Working Capital as of the beginning of such period;
	 
	 	(f)	 	any cash payment during such period in respect of any exceptional or
extraordinary item;
	 
	 	(g)	 	any amount actually paid or due and payable during such period in respect of
taxes on the profits the Company and its Subsidiaries; and
	 
	 	(h)	 	any decrease in provisions and other non-cash credits which are not Current
Assets or Current Liabilities taken into account in establishing EBITDA,





     and so that no amount shall be included more than once.



     “Chairman” means Mr. Liangsheng Miao, the Chairman and Chief Executive Officer of the
Company.



     “Change of Control” means the occurrence of any of the following events:



     (a) the Permitted Holders cease to be the Beneficial Owners, directly or indirectly, of at
least 25% (on a fully diluted basis) of the total voting power of the Voting Stock of the Company,
whether as a result of the issuance of securities of the Company, any merger, consolidation,
liquidation or dissolution of the Company, any direct or indirect transfer of securities by the
Permitted Holders or otherwise; or



     (b) any “person” or “group” of related persons (as such terms are used in Section 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders, acquires Control of the
Company. The term “Control” as used in the preceding sentence means the right to appoint and/or
remove all or the majority of the members of the Company’s Board of Directors or other governing
body, whether obtained directly or indirectly, and whether obtained by ownership of share capital,
the possession of voting rights, contract or otherwise; or



     (c) any “person” or “group” of related persons (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the Beneficial
Owner, directly or indirectly, of more than 35% of the total voting power of the Voting Stock of
the Company (or its successor by merger, consolidation or purchase of all or substantially all of
its assets) (for the purposes of this definition of “Change of Control”, such person or group shall
be deemed to Beneficially Own any Voting Stock of a specified corporation held by a parent
corporation so long as such person or group Beneficially owns, directly or indirectly, in the
aggregate more than 50% of the total voting power of the Voting Stock of such parent corporation);
or



5









 





     (d) the sale, transfer, assignment, lease, conveyance or other disposition, directly or
indirectly, of all or substantially all the Property of the Company and its Subsidiaries,
considered as a whole, shall have occurred, or the Company merges, consolidates or amalgamates with
or into any other Person or any other Person merges, consolidates or amalgamates with or into the
Company (in each case whether through a voluntary transaction, a scheme or arrangement or
otherwise), in any such event pursuant to a transaction in which the outstanding Voting Stock of
the Company is reclassified into or exchanged for cash, securities or other Property, other than
any such transaction where:




     (i) the outstanding Voting Stock of the Company is reclassified into or exchanged for
other Voting Stock of the Company or for Voting Stock of the Surviving Person, and




     (ii) the holders of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of the Voting Stock of the
Company or the Surviving Person immediately after such transaction and in substantially the
same proportion as before the transaction; or



     (e) Continuing Directors cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or



     (f) the Shareholders shall have approved any plan of liquidation or dissolution of the
Company.



     “Chargor” means the Major Shareholder and any other Person executing a Security
Document providing for Collateral for the Notes in accordance with the terms and provisions of this
Indenture.



     “Closing Sale Price” of the shares of Common Stock on any date means (a) if Common
Stock is primarily traded on a securities exchange, the last sale price on such securities exchange
on the applicable day, or if no sale occurred on such day, the mean between the closing “bid” and
“asked” prices on such day, (b) if the principal market for Common Stock is in the over-the-counter
market, the closing sale price on the applicable day as published by The NASDAQ Stock Market, Inc.
or similar organization, or if such price is not so published on such day, the mean between the
closing “bid” and “asked” prices, if available, on such day, which prices may be obtained from any
reputable pricing service, broker or dealer, and (c) if neither clause (a) nor clause (b) is
applicable, the fair market value as determined in good faith by the Board of Directors of the
Company (or in the event the shares have a fair market value in excess of $20,000,000, by an
Independent Financial Advisor) . The Closing Sale Price shall be determined based on regular
market hours without reference to extended after hours trading or pre-market trading.



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



     “Collateral” means all the collateral described in the Security Documents.



     “Collateral Agent” means DB Trustees (Hong Kong) Limited, and any successor collateral
agent appointed pursuant to the terms of this Indenture.



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



     “Commodity Price Protection Agreement” means, in respect of a Person, any forward
contract, commodity swap agreement, commodity option agreement or other similar agreement or
arrangement designed to protect such Person against fluctuations in commodity prices.



6









 





     “Common Stock” means, with respect to the Company, any stock of any class of the
Company which has no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not
subject to redemption by the Company, and shall include ADRs and ADSs. Subject to the provisions
of Section 15.06, however, shares issuable on conversion of Notes shall include only shares
of the class designated as ordinary shares of the Company at the date of this Indenture (namely,
the Common Stock, with no par value) or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the Company; provided that, if
at any time there shall be more than one such resulting class, the shares of each such class then
so issuable on conversion shall be substantially in the proportion which the total number of shares
of such class resulting from all such reclassifications bears to the total number of shares of all
such classes resulting from all such reclassifications.



     “Company” means Yingli Green Energy Holding Company Limited, a company incorporated in
the Cayman Islands, and, subject to the provisions of Article 5 and Section 15.06,
shall include its successors and assigns.



     “Consolidated Interest Expense” means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, plus, to the extent not included in such total
interest expense, and to the extent Incurred by the Company or its Subsidiaries, without
duplication,



     (a) interest expense attributable to leases constituting part of a Sale and Leaseback
Transaction and to Capital Lease Obligations,



     (b) amortization of debt discount and debt issuance cost, including commitment fees,



     (c) capitalized interest,



     (d) non-cash interest expense,



     (e) commissions, discounts and other fees and charges owed with respect to letters of credit
and banker’s acceptance financing,



     (f) net costs associated with Hedging Obligations (including amortization of fees),



     (g) Disqualified Stock Dividends (other than dividends payable in Capital Stock other than
Disqualified Stock),



     (h) Preferred Stock Dividends (other than dividends payable in Capital Stock other than
Disqualified Stock) of Subsidiaries,



     (i) interest accruing on any Debt of any other Person to the extent such Debt is guaranteed
by, or secured by a Lien on any of the assets of, the Company or any of its Subsidiaries, and



     (j) the cash contributions to any employee stock ownership plan or similar trust, if any and
to the extent such contributions are used by such plan or trust to pay interest or fees to any
Person (other than the Company) in connection with Debt Incurred by such plan or trust.



7









 





     “Consolidated Net Income” means, for any period, the net income (loss) of the Company
and its consolidated Subsidiaries; provided, however, that there shall not be included in such
Consolidated Net Income:



     (a) any net income (loss) of any Person (other than the Company) if such Person is not a
Subsidiary of the Company, except that:




     (i) subject to the exclusions contained in clauses (c), (d) and (e) below, the net
income of any such Person for such period shall be included in such Consolidated Net Income
up to the aggregate amount of cash distributed by such Person during such period to the
Company or any of its Subsidiaries as a dividend or other distribution (subject, in the case
of a dividend or other distribution to such Subsidiary, to the limitations contained in
clause (b) below), and




     (ii) a net loss of any such Person for such period shall be included in determining
such Consolidated Net Income; provided that the portion of such net loss included in the
calculation of Consolidated Net Income shall be in proportion to the Company’s and its
consolidated Subsidiaries’ equity interests in such Person,



     (b) any net income (loss) of any Subsidiary of the Company if such Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the making of distributions,
directly or indirectly, to the Company, except that:




     (i) subject to the exclusions contained in clauses (c), (d) and (e) below, the net
income of any such Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash distributed by such Subsidiary during such period
to the Company or another of its Subsidiaries as a dividend or other distribution (subject,
in the case of a dividend or other distribution to another Subsidiary of the Company, to the
limitation contained in this clause), and




     (ii) a net loss of any such Subsidiary for such period shall be included in determining
such Consolidated Net Income; provided that the portion of such net loss included in the
calculation of Consolidated Net Income shall be in proportion to the Company’s and its
consolidated Subsidiaries’ equity interests in such Person,



     (c) any gain (but not loss) realized upon the sale or other disposition of any Property of the
Company or any of its consolidated Subsidiaries (including pursuant to any Sale and Leaseback
Transaction) other than in respect of inventory sold in the ordinary course of business,



     (d) any net extraordinary gains or net non-cash extraordinary losses, and



     (e) the cumulative effect of a change in accounting principles.



     “Consolidated Net Worth” means, as of any date of determination, the total of the
amounts shown on the consolidated balance sheet of the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP



     (a) the par or stated value of all outstanding Capital Stock of the Company, plus



8









 





     (b) paid-in capital or capital surplus relating to such Capital Stock, plus



     (c) any retained earnings or earned surplus, less:




     (i) any accumulated deficit, and




     (ii) any amounts attributable to Disqualified Stock or any equity security convertible
into or exchangeable for Debt, the cost of treasury stock and the principal amount of any
promissory notes receivable from the sale of Capital Stock of the Company or any of its
Subsidiaries, each item to be determined in conformity with GAAP.



     “Consolidated Total Debt” means, at any date of determination, the aggregate stated
balance sheet amount of all Debt of Company and its Subsidiaries on a consolidated basis in
accordance with GAAP.



     “Continuing Directors” means, as of any date of determination, any member of the Board
of Directors who (a) was a member of the Board of Directors on the date of this Indenture or (b)
was nominated for election to the Board of Directors by, or whose election was ratified with the
approval of, a majority of the Continuing Directors who were members of the Board of Directors at
the time of such nomination or election.



     “Conversion Price” as of any day will equal $100,000 divided by the Conversion Rate as
of such date.



     “Corporate Trust Office” shall be the address of the Trustee specified in Section
16.03, or such other address as to which the Trustee may give notice to the Company.



     “Currency Exchange Protection Agreement” means, in respect of a Person, any foreign
exchange contract, currency swap agreement, currency option or other similar agreement or
arrangement designed to protect such Person against fluctuations in currency exchange rates.



     “Current Assets” means the aggregate of inventory, trade and other receivables of each
member of the Company and its consolidated Subsidiaries including prepayments in relation to
operating items and sundry debtors (but excluding Cash and Cash Equivalent) maturing within twelve
months from the date of computation and excluding:



     (a) receivables in relation to tax;



     (b) extraordinary items, exceptional items and other non-operating items; and



     (c) insurance claims.



     “Current Liabilities” means the aggregate of all liabilities (including trade
creditors, accruals, Long-term Debt, provisions, prepayments) of each member of the Company and its
subsidiaries, in each case falling due within twelve months from the date of computation but
excluding:




	 	(a)	 	liabilities for Debt;




9









 






	 	(b)	 	liabilities for tax;
	 
	 	(c)	 	extraordinary items, exceptional items and other non-operating
items;
	 
	 	(d)	 	insurance claims; and
	 
	 	(e)	 	liabilities in relation to dividends declared but not paid by
the Company.





     “Debt” means, with respect to any Person on any date of determination (without
duplication):



     (a) the principal of and premium (if any) in respect of:




     (i) debt of such Person for money borrowed, and




     (ii) debt evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;



     (b) all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale
and Leaseback Transactions entered into by such Person;



     (c) all obligations of such Person representing the deferred purchase price of Property, all
conditional sale obligations of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in the ordinary course of
business);



     (d) all obligations of such Person for the reimbursement of any obligor on any letter of
credit, banker’s acceptance or similar credit transaction;



     (e) the amount of all obligations of such Person with respect to the Repayment of any
Disqualified Stock or, with respect to any Subsidiary of such Person, any Preferred Stock;



     (f) any liability of such Person for the obligation of debt of another through any agreement
(contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such obligation or any
security therefor, or to provide funds for the payment or discharge of such obligation (whether in
the form of loans, advances, stock purchases, capital contributions or otherwise) or (ii) to
maintain the solvency or any balance sheet item, level of income or financial condition of another;



     (g) all obligations of the type referred to in clauses (a) through (f) above of other Persons
and all dividends of other Persons for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by
means of any guarantee;



     (h) all obligations of the type referred to in clauses (a) through (g) above of other Persons
secured by any Lien on any Property of such Person (whether or not such obligation is assumed by
such Person); and



     (i) to the extent not otherwise included in this definition, Hedging Obligations of such
Person.



     The amount of Debt of any Person at any date shall be the outstanding balance, or the accreted
value of such Debt in the case of Debt issued with original issue discount, at such date of all
unconditional



10









 







obligations as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such date.



     “Debt to Equity Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Debt, to (b) Consolidated Net Worth, in each case of the Company and its
Subsidiaries on a consolidated basis as of such date of determination.



     “Debt Service” means, in respect of any relevant period, the aggregate of:



     (a) Consolidated Interest Expense;



     (b) the aggregate of all scheduled and mandatory payments of any Debt falling due but
excluding:



     (c) any amounts falling due under any overdraft or revolving facility and which were available
for simultaneous redrawing according to the terms of such facility;




     (i) any such obligations owed by the Company or any of its Subsidiaries to the Company
or any of its Subsidiaries; and




     (ii) the amount of the capital element of any payments in respect of that relevant
period payable under any finance lease or capital lease entered into by any member of the
Company and its subsidiaries,



     and so that no amount shall be included more than once.



     “Debt Service Coverage Ratio” means, as of any date of determination, the ratio of (a)
Cash Flow, to (b) Debt Service, in each case of the Company and its Subsidiaries on a consolidated
basis for the four-Fiscal Quarter period ending on such date of determination, or if such date of
determination is not the last day of a Fiscal Quarter, the last day of the Fiscal Quarter
immediately preceding such date of determination.



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



     “Default Interest” means any interest payable on the Notes pursuant to the second
paragraph of Section 4.01.



     “Deposit Agreement” means the deposit agreement, dated as of June 13, 2007, among the
Company, JPMorgan Chase Bank, N.A., as depositary, and the holders from time to time of ADRs.



     “Disqualified Stock” means any Capital Stock of the Company or any of its Subsidiaries
that by its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable, in either case at the option of the holder thereof) or otherwise (a) matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (b) is or may become
redeemable or repurchaseable at the option of the holder thereof; (c) is convertible or
exchangeable at the option of the holder thereof for Debt or Disqualified Stock, in each case on or
prior to, in the case of clause (a), (b) or (c), the first anniversary of the Stated Maturity of
the Notes.



11









 





     “Disqualified Stock Dividends” means all dividends or other distributions with respect
to Disqualified Stock of the Company or any of its Subsidiaries held by Persons other than a Wholly
Owned Subsidiary. The amount of any such dividend shall be equal to the quotient obtained by
dividing such dividend by the difference between one and the maximum statutory federal and/or other
applicable income tax rate (expressed as a decimal number between 1 and 0) then applicable to the
Company.



     “EBITDA” means, for any period, an amount equal to, for the Company and its
consolidated Subsidiaries:



     (a) the sum of Consolidated Net Income for such period, plus the following to the extent
reducing Consolidated Net Income for such period:




     (i) the provision for taxes based on income,




     (ii) Consolidated Interest Expense,




     (iii) depreciation,




     (iv) amortization of intangibles, and




     (v) any other non-cash items (other than any such non-cash item to the extent that it
represents an accrual of, or reserve for, cash expenditures in any future period or
amortization of a prepaid cash expense paid in a period prior to the period that is subject
to calculation),




     (vi) minority interest, minus



     (b) all non-cash items increasing Consolidated Net Income for such period.



     Notwithstanding the foregoing clause (a), the provision for taxes and the depreciation,
amortization and non-cash items of a Subsidiary of the Company shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in the same proportion) that the net income of
such Subsidiary was included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the Company by such
Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Subsidiary or its shareholders.



     “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.



     “Ex-Dividend Time” means, with respect to any distribution on shares of Common Stock,
the first date on which the shares of Common Stock trade regularly on the principal securities
market on which the shares of Common Stock are then traded without the right to receive such
distribution.



     “First Tranche” means the Notes issued hereunder on the First Tranche Issue Date in an
aggregate amount equal to $20,000,000 in accordance with the terms of this Indenture.



     “First Tranche Issue Date” means January 16, 2009.



12









 





     “Fiscal Quarter” means each of the three month periods ending on March 31, June 30,
September 30 and December 31.



     “GAAP” means United States generally accepted accounting principles as in effect on
the First Tranche Issue Date, including those set forth in:



     (a) the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants,



     (b) the statements and pronouncements of the Financial Accounting Standards Board,



     (c) such other statements by such other entity as approved by a significant segment of the
accounting profession, and



     (d) the rules and regulations of the Commission governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports required to be filed
pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff of the Commission.



     All ratios and computations based on GAAP contained in this Indenture will be computed in
conformity with GAAP.



     “Governmental Approval” means any authorization of or by, consent of, approval of,
license from, ruling of, permit from, tariff by, rate of, certification by, exemption from, filing
with, variance from, claim of, order from, judgment from, decree of, publication to or by, notice
to, declaration of or with or registration by or with any Governmental Authority.



     “Governmental Authority” means any federal, state, national, provincial, municipal,
local, territorial or other government department, ministry (including local counterparts thereof),
commission, board, agency, regulatory authority, instrumentality, judicial or administrative body,
domestic or foreign.



     “guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person:



     (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt
of such other Person (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), or



     (b) entered into for the purpose of assuring in any other manner the obligee against loss in
respect thereof (in whole or in part);



     provided, however, that the term “guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business.



     The term “guarantee” used as a verb has a corresponding meaning. The term “guarantor” shall
mean any Person guaranteeing any obligation.



13









 





     “Guarantee” means each Guarantee of the Notes by each of the Guarantors pursuant to
the Guarantee Agreement by the Chairman and the Major Shareholder.



     “Guarantor” means each of the Chairman and the Major Shareholder, and any other Person
that becomes a Guarantor or otherwise executes and delivers a supplemental indenture (in form
satisfactory to the Trustee) to the Trustee providing for a Guarantee; provided that any Person
constituting a Guarantor as described above shall cease to constitute a Guarantor when its
respective Guarantee is released in accordance with the terms of this Indenture.



     “Hedging Obligation” of any Person means any obligation of such Person pursuant to any
Interest Rate Agreement, Currency Exchange Protection Agreement, Commodity Price Protection
Agreement or any other similar agreement or arrangement



     “Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic
of China.



     “Incur” means, with respect to any Debt or other obligation of any Person, to create,
issue, incur (by merger, conversion, exchange or otherwise), extend, assume, guarantee or become
liable in respect of such Debt or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Debt or obligation on the balance sheet of such Person (and “Incurrence”
and “Incurred” shall have meanings correlative to the foregoing); provided, that any Debt or other
obligations of a Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the
time it becomes a Subsidiary.



     “Indenture” means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented.



     “Independent Financial Advisor” means an investment banking firm of international
standing or any third party appraiser of international standing, provided that such firm or
appraiser is not an Affiliate of the Company.



     “Initial Security Document” means the YGE Share Charge.



     “Interest” means, when used with reference to the Notes, any interest payable under
the terms of the Notes, including Default Interest, if any.



     “Interest Payment Date” means each April 25, July 25, October 25 and January 25 of
each fiscal year during the term of this Agreement, and any other date upon which Interest is due
and payable on the Notes as provided in this Indenture.



     “Interest Rate Agreement” means, for any Person, any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar agreement designed to
protect against fluctuations in interest rates.



     “Issue Date” means, with respect to any Notes, the date on which the Notes are
originally issued.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in
the City of New York, the PRC, Hong Kong, the city in which the Corporate Trust Office of the
Trustee is located or



14









 







any other place of payment on the Notes are authorized by law, regulation or executive order
to remain closed.



     “Lien” means, with respect to any Property of any Person, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge,
easement, encumbrance, preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever on or with respect to such Property (including any Capital Lease
Obligation, conditional sale or other title retention agreement having substantially the same
economic effect as any of the foregoing or any Sale and Leaseback Transaction).



     “Long-term Debt” means the aggregate of all Debt with a maturity of more than
one year.



     “Major Shareholder” means Yingli Power Holding Co. Ltd., a company incorporated in the
British Virgin Islands.



     “Material Adverse Effect” means a material adverse effect on (a) the property,
business, operations or financial condition of the Company and its Subsidiaries, taken as a whole,
(b) the ability of the Company, any Guarantor or any Chargor to perform its payment obligations or
any of its material obligations under any of the Transaction Documents to which such Person is a
party, (c) the validity or enforceability of any of the Transaction Documents or (d) the material
rights and remedies of the Trustee or the Collateral Agent, under any of the Transaction Documents.



     “Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency
business thereof.



     “Note Obligations” means all Obligations of the Company, the Guarantors and the
Chargor under this Indenture, the Notes, the Guarantees and the Security Documents.



     “Noteholder” or “holder” as applied to any Note, or other similar terms (but
excluding the term “Beneficial Holder”), means any Person in whose name at the time a particular
Note is registered on the Registrar’s books.



     “Notes Purchase Agreement” means the Notes Purchase Agreement dated January 7, 2009 by
and between the Company and TB Partners Limited.



     “Notes” is defined in the recitals.



     “Notice Date” means the date of mailing of the notice pursuant to Section
3.02(b).



     “Obligations” means all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Debt.



     “Officer” means, with respect to the Company, its Chairman of the Board, a director of
the Board of Directors of the Company, the Chief Executive Officer, the President, the Chief
Financial Officer, the Chief Financial Officer, any Vice President (whether or not designated by a
number or numbers or word or words added before or after the title “Vice President”) and the
Treasurer or any Assistant Treasurer, or the Secretary or Assistant Secretary.



15









 





     “Officers’ Certificate” means a certificate, in form and substance satisfactory to the
Trustee, signed by two Officers of the Company, at least one of whom shall be the principal
executive officer or principal financial officer of the Company, and which certificate meets the
requirements of Section 16.05 and is delivered to the Trustee.



     “Opinion of Counsel” means a written opinion that meets the requirements of
Section 16.05 and which is in form and substance reasonably satisfactory to the Trustee
from legal counsel who may be an employee of or counsel for the Company, or other counsel
reasonably acceptable to the Trustee.



     “Outstanding”, when used with reference to Notes and subject to the provisions of
Section 13.04, means, as of any particular time, all Notes authenticated and delivered by
the Trustee under this Indenture, except:



     (a) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;



     (b) Notes, or portions thereof, (i) for the redemption of which monies in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or (ii) which shall have been otherwise discharged in accordance with Article 12;



     (c) Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06; and



     (d) Notes converted into Common Stock pursuant to Article 15 and Notes deemed not
outstanding pursuant to Article 3.



     “Permitted Holders” means the Chairman and the Major Shareholder; provided that the
Major Shareholder shall only be deemed to be a Permitted Holder so long as the Chairman continues
to own 100% of the issued and outstanding Capital Stock of the Major Shareholder.



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



     “PRC” means the People’s Republic of China, exclusive of Taiwan, Macau and Hong Kong.



     “Predecessor Note” of any particular Note means every previous Note evidencing all or
a portion of the same Debt as that evidenced by such particular Note; and any Note authenticated
and delivered under Section 2.06 in lieu of a lost, destroyed or stolen Note shall be
deemed to evidence the same Debt as the lost, destroyed or stolen Note.



     “Preferred Stock” means any Capital Stock of a Person, however designated, which
entitles the holder thereof to a preference with respect to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of any other class of Capital Stock issued by such Person.



     “Preferred Stock Dividends” means all dividends with respect to Preferred Stock of the
Company’s Subsidiaries held by Persons other than the Company or any of its Wholly Owned
Subsidiaries. The amount of any such dividend shall be equal to the quotient obtained by dividing
such dividend by the



16









 







difference between one and the maximum statutory federal and/or other applicable income tax
rate (expressed as a decimal number between 1 and 0) then applicable to the issuer of such
Preferred Stock.



     “pro forma” means, with respect to any calculation made or required to be made
pursuant to the terms hereof, a calculation performed in accordance with Article 11 of Regulation
S-X promulgated under the Securities Act, as interpreted in good faith by the Board of Directors
after consultation with the independent certified public accountants of the Company, or otherwise a
calculation made in good faith by the Board of Directors after consultation with the independent
certified public accountants of the Company, as the case may be.



     “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
intellectual property rights and Capital Stock in, and other securities of, any other Person. For
purposes of any calculation required pursuant to this Indenture, the value of any Property shall be
its fair market value.



     “Redemption Price” means the amount that is equal to 100% of the principal amount of
the Notes, plus an additional amount such that the total sum represents an internal rate of return
of 15%.



     “Refinance” means, in respect of any Debt, to refinance, extend, renew, refund or
Repay (in whole or in part), or to issue other Debt, in exchange or replacement for (in whole or in
part), such Debt. “Refinanced” and “Refinancing” shall have correlative meanings.



     “Repay” means, in respect of any Debt, to repay, prepay, repurchase, redeem, legally
defease or otherwise retire such Debt. “Repayment” and “Repaid” shall have correlative meanings.



     “Repurchase Amount” means, with respect to any Note, the Redemption Price plus
any accrued and unpaid Interest and any other interest payable pursuant to Section 4.01 on
such Note (including post-petition interest in any proceeding under any Bankruptcy Law) and
interest accrued on overdue principal (and, to the extent lawful, on overdue installments of
interest) and premium, if any.



     “Responsible Officer” shall mean, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee with direct responsibility for the
administration of this Indenture.



     “Restricted Payment” means:



     (a) any dividend or distribution (whether made in cash, securities or other Property) declared
or paid on or with respect to any shares of Capital Stock of the Company or any of its Subsidiaries
(including any payment in connection with any merger or consolidation) (other than a dividend or
distribution by any Subsidiary to the Company or any of its Subsidiaries); or



     (b) the purchase, repurchase, redemption, acquisition or retirement for value of any Capital
Stock of the Company or any of its Subsidiaries or any securities exchangeable for or convertible
into any such Capital Stock, including the exercise of any option to exchange any Capital Stock; or



     (c) the purchase, repurchase, redemption, acquisition or retirement for value, prior to the
date for any scheduled maturity, sinking fund or amortization or other installment payment, of any
Subordinated Obligation.



17









 





     “Rights Agreement” means the Rights Agreement dated as of October 17, 2007, as amended
by Amendment No. 1 to the Rights Agreement dated June 2, 2008 between the Company and RBC Dexia
Corporate Services Hong Kong Limited.



     “RMB” means the lawful currency of the PRC.



     “S&P” means Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc., or
any successor to the rating agency business thereof.



     “Sale and Leaseback Transaction” means any direct or indirect arrangement relating to
Property now owned or hereafter acquired whereby the Company or any of its Subsidiaries transfers
such Property to another Person and the Company or any of its Subsidiaries leases it from such
Person.



     “Second Tranche” means the Notes issued hereunder on the Second Tranche Issue Date in
an aggregate amount equal to $30,000,000 in accordance with the terms of this Indenture.



     “Second Tranche Issue Date” means any date of issuance of Second Tranche Notes in
accordance with the Notes Purchase Agreement and this Indenture, it being understood that the
Second Tranche of Notes hereunder may be issued in multiple series and that, accordingly, there may
be multiple Second Tranche Issue Dates.



     “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.



     “Security Documents” means the Initial Security Document executed and delivered for
the benefit of the holders of Note Obligations, whenever incurred, and also for the benefit of the
present and future holders of all other Note Obligations and any document perfecting such security
interests, and any one or more security agreements, pledge agreements, collateral assignments,
mortgages, deeds of trust or other grants or transfers for security executed and delivered by the
Company or any other obligor creating a Lien upon property owned or to be acquired by the Company
or such other obligor in favor of the Noteholders or the Collateral Agent for the benefit of the
holders of Note Obligations, whenever incurred, and also for the benefit of the present and future
holders of all other Note Obligations and any document perfecting such security interests pursuant
to the terms of Article 10.



     “Shareholders” means the shareholders of the Company, including the Major Shareholder.



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary”
of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission.



     “Stated Maturity” means, with respect to any installment of interest or principal on
any series of Debt (including, without limitation, a scheduled repayment or a scheduled sinking
fund payment), the date on which the payment of interest or principal was scheduled to be paid in
the original documentation governing such Debt, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date originally scheduled
for the payment hereof.



     “Subordinated Obligation” means any Debt of the Company or any Guarantor (whether
outstanding on the First Tranche Issue Date or thereafter Incurred) that is subordinate or junior
in right of payment to the Notes or the applicable Guarantee pursuant to a written agreement to
that effect.



18









 





     “Subsidiary” (a) with respect to any Person, means (i) any corporation of which the
outstanding Capital Stock having a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned, directly or indirectly, through
one or more intermediaries, by such Person or (ii) any other Person of which a majority of the
voting interest under ordinary circumstances is at the time, directly or indirectly, through one or
more intermediaries, owned by such Person or (b) with respect to the Company, means each other
Person whose financial reporting is consolidated with the Company in any audited financial
statements filed by the Company with the Commission in accordance with the Exchange Act.



     “Surviving Person” means the surviving Person formed by a merger, consolidation or
amalgamation and, for purposes of Section 5.01, a Person to whom all or substantially all
of the Property of the Company or a Guarantor is sold, transferred, assigned, leased, conveyed or
otherwise disposed.



     “Termination of Trading” will be deemed to have occurred if, (a) the Common Stock (or
other common stock, depositary receipts, ordinary shares or other certificates representing common
equity interests into which the Notes are then convertible) ceases to be listed for trading on the
New York Stock Exchange or any other United States national securities exchange, (b) trading in the
Common Stock on any such exchange or market has been suspended for more than ten (10) consecutive
Trading Days, or (c) a transaction or event (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification, recapitalization or otherwise)
occurs in connection with which all or substantially all of the Common Stock is exchanged for,
converted into, or acquired for, consideration which is not all or substantially all common stock,
depositary receipts, ordinary shares or other certificates representing common equity interests
that are (or, upon consummation of or immediately following such transaction or event, will be)
listed on a United States national securities exchange.



     “Transaction Document” means this Indenture, the Notes, the Guarantees, the Notes
Purchase Agreement and the Security Documents, or any of them as the context may so require.



     “Trading Day” shall mean (a) if the applicable security is listed or admitted for
trading on the American Stock Exchange, New York Stock Exchange or another national securities
exchange, a day on which the American Stock Exchange, New York Stock Exchange or another national
securities exchange is open for business, or (b) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or executive order to
close.



     “Trading Market” means the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the Nasdaq Capital Market, the American Stock
Exchange, the New York Stock Exchange, the NYSE Archipelago Exchange, the Nasdaq Global Market or
the Nasdaq Global Select Market.



     “Trading Reference VWAP (20 Day Backward Looking)” means, as of any date of
determination, the simple arithmetic average of the VWAPs for the twenty (20) Trading Days
preceding such date, as the case may be, as proportionally adjusted for any subdivision,
consolidation, reclassification or similar event of the Common Stock.



     “Trading Reference VWAP (20 Day Forward Looking)” means, as of any date of
determination, the simple arithmetic average of the VWAPs for the twenty (20) Trading Days
immediately following such



19









 







date, as the case may be, as proportionally adjusted for any subdivision, consolidation,
reclassification or similar event of the Common Stock.



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



     “U.S. Government Securities” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America are pledged and which are not callable or redeemable at the issuer’s option.



     “Voting Stock” of any Person means all classes of Capital Stock or other interests
(including partnership interests) of such Person then outstanding and normally entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.



     “VWAP” means, for any date, the price determined by the first of the following clauses
that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily
volume weighted average price of the Common Stock for such date (or the nearest preceding date) on
the Trading Market on which the Common Stock is then listed or quoted for trading as reported by
Bloomberg Financial L.P. through its “Volume at Price” functions (based on a Trading Day from 9:30
a.m. (City of New York time) to 4:02 p.m. (City of New York time); or (b) if the Common Stock is
not then listed or quoted on a Trading Market and if prices for the Common Stock are then reported
in the “Pink Sheets” published by Pink Sheets, LLC (or a similar organization or agency succeeding
to its functions of reporting prices), the average of the highest closing bid price and lowest
closing ask price of any of the market makers for such security as reported, and in each of the
foregoing clauses ignoring any block trade (which for purposes of this definition means any
transfer of more than 100,000 shares). If the VWAP cannot be calculated for such security on such
date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market
value as mutually determined by the Company and the Noteholders of at least a majority in aggregate
principal amount of the Notes then outstanding.



     “Wholly Owned Subsidiary” means, at any time, a Subsidiary all the Voting Stock of
which (except directors’ qualifying shares) is at such time owned, directly or indirectly, by the
Company or BVI Cyber Power, as applicable, and each of their other Wholly Owned Subsidiaries, as
applicable.



     “Working Capital” means on any date Current Assets less Current Liabilities.



     “YGE Negative Pledge Shares” means 10,000,000 shares of Common Stock of the Company
(other than the YGE Share Collateral) which shall at all times during the term hereof remain
subject to the restrictions set forth in Section 4.11.



     “YGE Share Charge” means the first share charge by the Major Shareholder in favor of
the Collateral Agent in respect of an initial 10,000,000 shares of Common Stock of the Company, in
the form attached hereto as Exhibit E.



     “YGE Share Collateral” means the shares of Common Stock of the Company charged as
Collateral for the Notes in accordance with the YGE Share Charge.



     Other Definitions.



20









 





	 	 	 
	 	 	Defined in
	Term	 	Section
	“Adjustment Event” 
	 	15.05(n)
	“Affiliate Transaction” 
	 	4.12
	“Authentication Order” 
	 	2.04
	“Authorized Agent” 
	 	16.04
	“Benefited Party” 
	 	Article 11
	“Change of Control Offer” 
	 	4.13(a)
	“Conversion Date” 
	 	15.02
	“Conversion Notice” 
	 	15.02
	“Conversion Rate” 
	 	15.04
	“Current Market Price” 
	 	15.05(j)
	“Determination Date” 
	 	15.05(n)
	“Event of Default” 
	 	6.01
	“Exchange Act Filings” 
	 	4.22(a)
	“Expiration Time” 
	 	15.05(f)
	“Non-electing share” 
	 	15.06
	“Offer Amount” 
	 	3.02(b)
	“Offer Period” 
	 	3.02(c)
	“Offer to Purchase” 
	 	3.02(a)
	“Paying Agent” 
	 	4.02
	“Purchase Date” 
	 	3.02(c)
	“Purchase Price” 
	 	3.02(b)
	“Purchased Shares” 
	 	15.05(f)
	“Record Date” 
	 	15.05(j)
	“Registrar” 
	 	4.02
	“Rule 144A Information” 
	 	4.22(b)
	“Securities” 
	 	15.05(d)
	“Security Register” 
	 	4.02
	“Termination of Trading Offer” 
	 	4.17
	“Trigger Event” 
	 	15.05(d)






          Section 1.02.   Rules of Construction.




     (a) Unless the context otherwise requires:




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




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




     (iii) “or” is not exclusive;




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



21








 






     (v) all references in this instrument to “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and subdivisions of this
instrument as originally executed;




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




     (vii) “including” means “including without limitation”;




     (viii) provisions apply to successive events and transactions;




     (ix) “$” means the lawful currency of the United States of America; and




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



ARTICLE 2




ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES




          Section 2.01.   Designation Amount and Issue of Notes. 




     (a) The Notes shall be designated as “10.0% Guaranteed Senior Secured Convertible Notes due
2012”. The First Tranche of Notes in the initial aggregate principal amount of $20,000,000 upon
the execution of this Indenture, the Second Tranche of Notes up to an aggregate principal amount of
$30,000,000 upon any Second Tranche Issue Date, or from time to time thereafter, may be executed by
the Company and delivered to the Trustee or an Agent on its behalf for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes in one or more series to or upon the
written order of the Company (as set forth in such Officer’s Certificate).



     (b) Notwithstanding that the Notes shall be issued at different times and may comprise
different series of Notes, all Notes issued under this Indenture shall vote and consent together on
all matters as one class and no series of Notes will have the right to vote or consent as a
separate class on any matter.



          Section 2.02.   Form of Notes. 




     (a) The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall
be substantially in the forms set forth in Exhibit A. The terms and provisions contained
in the form of Notes attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the Company, the Guarantors
and the Chargor and the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.



     (b) Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as may be required to comply with any applicable law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange or



22









 







automated quotation system on which the Notes may be listed, or to conform to usage, or to
indicate any special limitations or restrictions to which any particular Notes are subject.



          Section 2.03.   Date and Denomination of Notes; Payments of Interest. 




     (a) The Notes shall be issuable in registered form without coupons in denominations of
$100,000 principal amount and integral multiples of $1,000 in excess thereof. Each Note shall be
dated the date of its authentication and shall bear Interest from the date specified on the face of
the form of Note attached as Exhibit A hereto (or, in the case of Second Tranche Notes, shall bear
interest from the applicable Second Tranche Issue Date). Interest on the Notes shall be computed
on the basis of a 360-day year comprised of twelve 30-day months.



     (b) The Person in whose name any Note (or its Predecessor Note) is registered on the Security
Register at the close of business on any record date with respect to any Interest Payment Date
shall be entitled to receive the Interest payable on such Interest Payment Date, except that the
Interest payable upon redemption or repurchase will be payable to the Person to whom principal is
payable pursuant to such redemption or repurchase (unless the redemption date or the repurchase
date, as the case may be, falls after a record date and on or prior to the corresponding Interest
Payment Date, in which case accrued and unpaid Interest to, but excluding, such redemption date or
repurchase date shall be payable on such Interest Payment Date to the holders of such Notes
registered as such on the applicable record date).



     (c) Notwithstanding the foregoing, if any Note (or portion thereof) is converted into Common
Stock during the period after a record date for the payment of Interest to, but excluding, the next
succeeding Interest Payment Date and such Note (or portion thereof) has been called or tendered for
redemption on a redemption date which occurs during such period, the Company shall not be required
to pay interest on such Interest Payment Date in respect of any such Note (or portion thereof).
Interest shall be payable at the office of the Company maintained by the Company for such purposes
in the City of Hong Kong, which shall initially be an office of the Trustee or principal Paying
Agent. The Company shall pay Interest on the Notes by (x) check mailed to the address of the
Person entitled thereto as it appears in the Security Register (or upon written notice, by wire
transfer in immediately available funds, if such Person is entitled to Interest on aggregate
principal in excess of $1,000,000) or (y) by transfer to an account maintained by such person in
Hong Kong or Singapore. In no circumstances shall any Paying Agent be obligated to make any
payment to Noteholders until such time as it has received sufficient funds from the Company. If an
Interest Payment Date is a Legal Holiday at the city in which the Corporate Trust Office of the
Trustee is located, payment may be made at that place on the next succeeding day that is not a
Legal Holiday, provided that Interest should be computed to the Interest Payment Date, provided
further that no interest shall accrue on such payment for the intervening period. The term “record
date” with respect to any Interest Payment Date shall mean the January 11, April 11, July 11 or
October 11 preceding the applicable January 25, April 25, July 25 or October 25 Interest Payment
Date, respectively.



          Section 2.04.   Execution of Notes. 




     (a) The Notes shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of its Chairman of the Board, Chief Executive Officer, Chief Financial Officer,
President or any Vice President (whether or not designated by a number or numbers or word or words
added before or after the title “Vice President”) and attested by the manual or facsimile signature
of its Secretary or any of its Assistant Secretaries, its Treasurer or any of its Assistant
Treasurers (which may be printed,



23









 







engraved or otherwise reproduced thereon, by facsimile or otherwise) or a director of the
Board of Directors of the Company. Only such Notes as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Notes attached as Exhibit A
hereto upon a written order of the Company signed by an Officer (an “Authentication Order”),
manually executed by the Trustee (or an authenticating agent appointed by the Trustee as provided
by Section 16.10), shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. With respect to any Second Tranche Notes issued after the First Tranche Issue
Date (except for Notes authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to the other provisions of this Indenture), there shall be
set forth in an Authentication Order prior to the issuance of such Notes (i) the aggregate
principal amount of such Second Tranche Notes to be authenticated and delivered under this
Indenture; and (ii) the issuance date of such Second Tranche Notes, including the date from which
Interest on such Notes shall accrue. Such certificate by the Trustee (or such an authenticating
agent) upon any Note executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture. The Trustee shall have the right to decline to authenticate and
deliver any Notes under this Indenture unless and until it receives an Authentication Order from
the Company.



     (b) In case any officer of the Company who shall have signed any of the Notes shall cease to
be such officer before the Notes so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Notes had not ceased to be such officer of the
Company, and any Note may be signed on behalf of the Company by such persons as, at the actual date
of the execution of such Note, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.



          Section 2.05.   Transfer and Exchange




     (a) When Notes are presented to the Registrar or a co-Registrar with a request to register the
transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar or co-Registrar shall promptly register the transfer or
make the exchange as requested if its requirements for such transaction are met; provided, however,
that the Notes surrendered for transfer (including any transfer in connection with an exchange of
Notes) shall be accompanied a certificate substantially in the form of Exhibit C-1 and a
transfer instrument substantially in the form of Exhibit C-2, in each case duly executed by
the holder thereof or his or her attorney duly authorized in writing. The Company undertakes to
deliver to, or to the order of, the Registrar sufficient numbers of duly executed Notes together
with Authentication Orders to enable the Trustee and the Registrar to comply with their
obligations under this Indenture. Such transfers and exchanges shall be made free of charge to the
holder and the beneficial owners of the Notes, except that (i) the Registrar may require payment of
a sum sufficient to cover any tax or other government charge payable in connection therewith and
(ii) a Person receiving Notes must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not receive such Notes in person at the offices of a Registrar.



     (b) The Registrar shall cause all Notes delivered to it and held by it hereunder to be
maintained in safe custody in accordance with this Section 2.05.



     (c) The Security Register shall be in written form in the English language and shall include a
record of the certificate number of each Note that has been issued, and shall show the amount of
such Notes, the date of issue, all subsequent transfers and changes in ownership in respect thereof
and the names, tax



24









 







identifying numbers (if relevant to a specific holder), addresses of the holders of the Notes
and any payment instructions with respect thereto (if different from a holder’s registered
address).



     (d) The Registrar shall at all reasonable times during office hours make the Security Register
available to the Trustee, the Paying Agent, the Company and the holders of such Notes or any person
authorized by the Company in writing for inspection and for taking of copies thereof or extracts
therefrom, and at the expense of the Company, the Registrar shall deliver to such persons all lists
of holders of such Notes, their addresses, amounts of such holdings and other details as they may
request.



     (e) The Registrar shall handle all requests for the registration of transfer, or exchange,
repurchase or conversion of Notes and receive certificates for the Notes deposited with the
transfer agent for transfer, or exchange, repurchase or conversion, and in doing so, shall ensure
that every Note presented or surrendered for registration of transfer, or exchange, repurchase or
conversion, (if so required by the Company, the Trustee, the Paying Agent or the Registrar) be duly
endorsed by, or be accompanied by a written instrument or instruments of transfer (in form
satisfactory to the Company and the Registrar) duly executed by the holder thereof or by such
holder’s attorney duly authorized in writing.



     (f) Neither the Company nor the Trustee nor any Registrar shall be required to exchange or
register a transfer of (a) any Notes or portions thereof surrendered for conversion pursuant to
Article 14 or (b) any Notes or portions thereof tendered for purchase pursuant to
Section 3.02 (and not withdrawn).



     (g) Until the expiration of the holding period applicable to sales thereof under Rule 144
under the Securities Act (or any successor provision), any certificate evidencing such Note (and
all securities issued in exchange therefor or substitution thereof, other than Common Stock, if
any, issued upon conversion thereof, which shall bear the legend set forth in Exhibit D, if
applicable) shall bear a legend set forth in Exhibit A, unless such Note has been sold
pursuant to a registration statement that has been declared effective under the Securities Act (and
which continues to be effective at the time of such transfer) or pursuant to Rule 144 under the
Securities Act or any similar provision then in force, or unless otherwise agreed by the Company in
writing, with written notice thereof to the Trustee.



     (h) Any stock certificate representing Common Stock issued upon conversion of such Note shall
bear a legend substantially in the form of Exhibit D.



     (i) The Trustee and the Registrar shall be entitled to treat a telephone, telex or facsimile
communication from a person purporting to be (and who the Trustee or the Registrar believe in good
faith to be) the authorized representative of the Company, named in a list furnished to the Trustee
and the Registrar from time to time, as sufficient instructions and authority of the Company for
the Trustee and the Registrar to act in accordance with this Section.



     (j) Title to the Notes shall pass by upon recordation of transfer or exchange in the Security
Registrar.



          Section 2.06.   Mutilated, Destroyed, Lost or Stolen Notes. 




     In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon its written request the Trustee or an authenticating agent
appointed by the Trustee shall authenticate and make available for delivery, a new Note, bearing a
number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or
in lieu of and in



25









 







substitution for the Note so destroyed, lost or stolen. In every case, the applicant for a
substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent, such security or indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.



     Following receipt by the Trustee or such authenticating agent, as the case may be, of
satisfactory security or indemnity and evidence, as described in the preceding paragraph and an
Authentication Order from the Company, the Trustee or such authenticating agent may authenticate
any such substituted Note and make available for delivery such Note. Upon the issuance of any
substituted Note, the Company or the Trustee, as the case may be, may require the payment by the
holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. In case any Note which has
matured or is about to mature or has been called for redemption or has been tendered for repurchase
upon a Termination of Trading (and not withdrawn) or is to be converted into Common Stock shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of or convert or authorize the conversion of the same (without
surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for
such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or in connection with such
substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to
the Company, the Trustee and, if applicable, any paying agent or conversion agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.



     Every substitute Note issued pursuant to the provisions of this Section by virtue of the fact
that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and
shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in)
this Indenture equally and proportionately with any and all other Notes duly issued hereunder. If,
after the delivery of such replacement Note, a protected purchaser of the original Note in lieu of
which such replacement Note was issued presents for payment, registration or conversion of such
original Note, the Trustee shall be entitled to recover such replacement Note from the Person to
whom it was delivered or any Person taking therefrom, except a protected purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Company, the Trustee and any authenticating agent in
connection therewith.



          Section 2.07.   [Reserved]




          Section 2.08.   Cancellation of Notes.




     All Notes surrendered for the purpose of payment, redemption, repurchase, conversion, exchange
or registration of transfer shall, if surrendered to the Company or any paying agent or any
Registrar or any conversion agent, be surrendered to the Trustee and promptly cancelled by it, or,
if surrendered to the Trustee, shall be promptly cancelled by it, and no Notes shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such cancelled Notes in accordance with its customary procedures. If the Company
shall acquire any of the Notes, such acquisition



26









 




shall not operate as a redemption, repurchase or satisfaction of the indebtedness represented
by such Notes unless and until the same are delivered to the Trustee for cancellation.




          Section 2.09.   Defaulted Interest. 




     If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01.



     The Company shall notify the Trustee, in writing, at least 10 days prior to the proposed
payment date of the amount of defaulted interest proposed to be paid on each Note and any Default
Interest calculated and payable pursuant to Section 4.01, and the date of the proposed payment of
such amounts. The Company shall fix or cause to be fixed each such special record date and payment
date; provided that no such special record date shall be less than 10 days prior to the related
Interest Payment Date for such amounts. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name and at the expense of
the Company) shall mail or cause to be mailed to holders a notice that states the special record
date, the related Interest Payment Date and the amount of such interest to be paid.



          Section 2.10.   Holder Lists. 




     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of the holders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on January
11 and July 11 of each year a listing of holders dated within ten days of the date on which the
list is furnished and at such other times as the Trustee may request in writing a list, in such
form and as of such date as the Trustee may reasonably require, of the names and addresses of
holders.



ARTICLE 3




REDEMPTION AND REPURCHASE OF NOTES




          Section 3.01.   Redemption at Maturity 




     Unless previously redeemed or converted or purchased and cancelled in accordance with this
Indenture, the Company shall redeem the Notes at the Repurchase Amount on January 25, 2012. The
Notes may not be redeemed at the election of the Company, in whole or in part at any time prior to
January 25, 2012.



          Section 3.02.   Offer to Purchase.




     (a) In the event that, pursuant to Section 4.13 or Section 4.17, the Company
shall be required to commence a Change of Control Offer or a Termination of Trading Offer (each of
the foregoing, an “Offer to Purchase”), respectively, it shall follow the procedures
specified below.



27









 





     (b) The Company shall commence the Offer to Purchase by sending, by first-class mail, with a
copy to the Trustee, to each holder at such holder’s address appearing in the Security Register, a
notice the terms of which shall govern the Offer to Purchase stating:




     (i) that the Offer to Purchase is being made pursuant to this Section and Section
4.13 or Section 4.17, as the case may be, that such event described in
Section 4.13 or Section 4.17 has occurred, the circumstances and relevant
facts regarding such event;




     (ii) the principal amount of Notes required to be purchased pursuant to Section
4.13 or Section 4.17, as the case may be (the “Offer Amount”), the
purchase price set forth in Section 4.13 or Section 4.17, as applicable (the
“Purchase Price”), the Offer Period and the Purchase Date (each as defined below);




     (iii) that all Notes timely tendered and not withdrawn shall be accepted for payment;




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




     (v) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest after the Purchase
Date;




     (vi) that holders electing to have a Note purchased pursuant to an Offer to Purchase
may elect to have Notes purchased in minimum amounts of $100,000 and integral multiples of
$1,000 in excess of such amount only;




     (vii) that holders electing to have a Note purchased pursuant to any Offer to Purchase
shall be required to surrender the Note, with the form entitled “Purchase Notice” on the
reverse of the Note completed, or transfer by book-entry transfer, to the Paying Agent, at
the address specified in the notice before the close of business on the third Business Day
before the Purchase Date;




     (viii) that holders shall be entitled to withdraw their election if the Company, or the
Paying Agent, as the case may be, receives, not later than the expiration of the Offer
Period, a telegram, facsimile transmission or letter setting forth the name of the holder,
the principal amount of the Note (or portions thereof) the holder delivered for purchase and
a statement that such holder is withdrawing his election to have such Note purchased;




     (ix) that holders whose Notes were purchased in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer); and




     (x) any other procedures the holders must follow in order to tender their Notes (or
portions thereof) for payment and the procedures that holders must follow in order to
withdraw an election to tender Notes (or portions thereof) for payment.



     (c) The Offer to Purchase shall remain open for a period of at least 30 days but no more than
60 days following its commencement (which shall occur upon receipt by the Noteholders of the Notice
required under Section 3.02(b)), except to the extent that a longer period is required by
applicable law (the “Offer Period”). No later than five (5) Business Days (and in any
event no later than the 60th day following any Change of Control or Termination of Trading (subject
to extension at the option of the



28









 







applicable Noteholders on a day for day basis for any delay by the Company in providing the
notice required by Section 3.02(b)) after the termination of the Offer Period (the “Purchase
Date”), the Company shall purchase the Offer Amount or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Offer to Purchase. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made. The Company shall
publicly announce the results of the Offer to Purchase on the Purchase Date.



     (d) On or prior to the Purchase Date, the Company shall, to the extent lawful:




     (i) accept for payment from each tendering holder, the Offer Amount of Notes or
portions of Notes properly tendered and not withdrawn pursuant to the Offer to Purchase, or
if less than the Offer Amount has been tendered, all Notes tendered;




     (ii) deposit with the Paying Agent funds in an amount equal to the Purchase Price in
respect of the Notes properly tendered; and




     (iii) if applicable, surrender to the Trustee the Notes properly accepted to be
cancelled by the Trustee in accordance with Section 2.08, together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions of Notes being
purchased by the Company and that such Notes or portions thereof were accepted for payment
by the Company in accordance with the terms of this Section.



     (e) Upon receipt of the Notes in accordance with Section 3.02(d)(i), the Company shall
promptly, and in any event within one (1) Business Day after the Purchase Date, deliver to each
tendering holder the Purchase Price. In the event that any portion of the Notes surrendered is not
purchased by the Company, the Company shall promptly execute and issue a new Note in a principal
amount equal to such unpurchased portion of the Note surrendered, and, upon receipt of an
Authentication Order in accordance with Section 2.05 the Trustee shall authenticate and
deliver (or cause to be transferred by book-entry) such new Note to such holder, in a principal
amount equal to any unpurchased portion of the Note surrendered; provided, however, that each such
new Note shall be in a principal amount of $100,000 or an integral multiple of $1,000 in excess
thereof (unless the remaining portion of the Note not purchased by the Company is less than such
amounts, in which case a new Note shall be issued for such remaining lesser amount). Any Note not
so accepted shall be promptly mailed or delivered by the Company to the holder thereof.



     (f) If the Purchase Date is on or after a record date for the payment of interest and on or
before the related Interest Payment Date, any accrued and unpaid Interest shall be paid to the
Person in whose name a Note is registered at the close of business on such record date for the
payment of interest, and no further Interest shall be payable to holders who tender Notes pursuant
to the Offer to Purchase.



     (g) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the Offer to Purchase. To the extent that
the provisions of any securities laws or regulations conflict with Section 4.13 or
Section 4.17, as applicable, this Section or other provisions of this Indenture, the
Company shall comply with applicable securities laws and regulations and shall not be deemed to
have breached its obligations under Section 4.13 or Section 4.17, as applicable,
this Section or such other provision by virtue of such compliance.



29









 





ARTICLE 4




PARTICULAR COVENANTS OF THE COMPANY




          Section 4.01.   Payment of Principal and Interest. 




     The Company covenants and agrees that it will duly and punctually pay or cause to be paid the
principal of (including the purchase price upon an Offer to Purchase or the repurchase price upon
repurchase, in each case pursuant to Article 3) and Interest, on each of the Notes at the
places, at the respective times and in the manner provided herein and in the Notes.



     The Company shall pay, from time to time on demand, interest (including post-petition interest
in any proceeding under any Bankruptcy Law) accrued on overdue principal and premium, if any, at a
rate that is 5% per annum in excess of the rate then in effect from the due date and ending on the
date immediately preceding the related Interest Payment Date; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods), from time to time on demand at the same
rate to the extent lawful.



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



          Section 4.02.  Maintenance of Office or Agency.




     The Company will maintain an office or agency in Hong Kong, where the Notes may be surrendered
for registration of transfer or exchange (“Registrar”) or for presentation for payment or
for conversion, redemption or repurchase (“Paying Agent”) and where notices and demands to
or upon the Company in respect of the Notes and this Indenture may be served. The Registrar shall
keep a register (the “Security Register”) of the Notes and of their registration of
transfer and exchange. The Company will 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.



     The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided that no such designation or rescission shall in
any way relieve the Company of its obligation to maintain the offices and agencies in City of New
York as required by this Section 4.02. 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 initially appoints Deutsche Bank AG, Hong Kong Branch to act as Paying Agent,
Conversion Agent and Registrar and such Agents as appointed hereby agree so to initially act.



30









 





          Section 4.03.   Provisions as to Paying Agent. 




     (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:




     (i) that it will hold all sums held by it as such agent for the payment of the
principal of or Interest on the Notes (whether such sums have been paid to it by the Company
or by any other obligor on the Notes) in trust for the benefit of the holders of the Notes;




     (ii) that it will give the Trustee notice of any failure by the Company (or by any
other obligor on the Notes) to make any payment of the principal of or Interest on the Notes
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 the Business Day prior to each due date of the principal or Interest on
the Notes, 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 and/or Interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the Trustee in writing of any failure to
take such action; provided that if such deposit is made on the due date, such deposit shall be
received by the paying agent by 10:00 a.m. Hong Kong time, on such date.



     (b) If the Company shall act as its own paying agent, it will, on the Business Day prior to
each due date of the principal of or Interest on the Notes, set aside, segregate and hold in trust
for the benefit of the holders of the Notes a sum sufficient to pay such principal or Interest so
becoming due and will promptly notify the Trustee in writing of any failure to take such action and
of any failure by the Company (or any other obligor under the Notes) to make any payment of the
principal of or Interest on the Notes when the same shall become due and payable.



     (c) Anything in this Section 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, 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.



     (d) Anything in this Section to the contrary notwithstanding, the agreement to hold sums in
trust as provided in this Section is subject to Sections 12.03 and 12.04.



     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.



31









 





          Section 4.04.   Existence. 




     (a) Subject to Article 5, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its and each of its Significant Subsidiaries’
existence (charter and statutory).



          Section 4.05.   Maintenance of Properties. 




     (a) The Company will cause all properties which are material to the conduct of its business
or the business of any Significant Subsidiary to be maintained and kept in good condition, repair
and working order, fair wear and tear excepted, and supplied with all commercially reasonably
necessary equipment and will cause to be made all commercially reasonably necessary repairs,
renewals, replacements, betterments and improvements 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 that nothing in this Section shall prevent the
Company or any Significant Subsidiary from discontinuing the operation or maintenance of any of
such properties if such discontinuance does not have, and would not be reasonably be expected to
have, a Material Adverse Effect.



          Section 4.06.   Payment of Taxes and Other Claims. 




     The Company will, or cause the applicable Subsidiary of the Company to, pay or discharge, or
cause to be paid or discharged, before the same may become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Significant Subsidiary or upon
the income, profits or property of the Company or any Significant Subsidiary, (b) all claims for
labor, materials and supplies which, if unpaid, might reasonably be expected by law become a lien
or charge upon the property of the Company or any Significant Subsidiary and (c) all stamp taxes
and other duties, if any, which may be imposed by the United States or any political subdivision
thereof or therein, or which may be imposed under the laws of any other applicable jurisdiction, in
connection with the issuance, transfer, exchange, conversion, redemption or repurchase of any Notes
or with respect to this Indenture; provided 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 (i) the amount of such liability for taxes, assessments or
governmental charges, in the aggregate, does not exceed $10,000,000, provided, that if clause (ii)
does not apply, the Company shall pay such taxes, charges and assessments promptly after becoming
aware of any default in respect thereof, or (ii) (A) the amount, applicability or validity is being
contested in good faith by appropriate proceedings and (B) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been made therefore.



          Section 4.07.   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 on the Notes 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 or any Agent, but will suffer and permit the execution of every such power as though no
such law had been enacted.



32









 





          Section 4.08.   Payments for Consent.




     The Company shall not, and shall 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 or for the benefit of any holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid and is paid to all holders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such consent, waiver or
agreement.



          Section 4.09.   Incurrence of Additional Debt; Financial Covenants.




     (a) The Company shall not, and shall not permit any of its Subsidiaries to, Incur, directly or
indirectly, any Debt unless, after giving effect to the application of the proceeds thereof, no
Default or Event of Default would occur as a consequence of such Incurrence or be continuing
following such Incurrence.



     (b) The Company shall maintain a Debt to Equity Ratio, as determined as of the last day of
each Fiscal Quarter ending on June 30 and December 31 of each fiscal year, less than or equal to
1.25 to 1.00, such determination to be made promptly after the Company’s unaudited financial
statements for such Fiscal Quarter have been prepared (but in all events, prior to or concurrent
with the delivery of the certificate required under Section 4.21(b) below).



     (c) The Company shall maintain an Debt Service Coverage Ratio, as determined as of the last
day of each Fiscal Quarter ending on June 30 and December 31 of each fiscal year, for the four
Fiscal-Quarter Period ending on such date, greater or equal to 1.00 to 1.00, such determination to
be made promptly after the Company’s unaudited financial statements for such Fiscal Quarter have
been prepared (but in all events, prior to or concurrent with the delivery of the certificate
required under Section 4.21(b) below).



     (d) Notwithstanding anything to the contrary contained in this Section, the Company shall not,
and shall not permit any Subsidiary to, Incur or suffer to exist any Debt that is contractually
subordinated in right of payment to any other Debt of the Company or any of its Subsidiaries
pursuant to a written agreement to that effect unless such Debt is at least equally subordinated in
right of payment of the Notes.



          Section 4.10.   Restricted Payments. 




     The Company shall not make, and shall not permit any of its Subsidiaries to make, directly or
indirectly, any Restricted Payment if at the time of, and after giving effect to, such proposed
Restricted Payment, a Default or an Event of Default shall have occurred and be continuing.



          Section 4.11.   Liens; Negative Pledge.




     The Chairman and the Major Shareholder shall not, and the Company shall procure that the
Chairman and the Major Shareholder do not, directly or indirectly, Incur or suffer to exist, any
Lien (save for Liens (i) granted pursuant to the YGE Share Charge or (ii) arising by operation of
law in connection with the Major Shareholder acting in its ordinary course of business as a company
with no other activities other than holding Common Stock of the Company and activities reasonably
incidental thereto, together with any activities expressly permitted under the applicable Security
Documents) upon any of the YGE Share Collateral or the YGE Negative Pledge Shares, and shall not
enter into a single transaction or a series



33









 







of transactions (whether related or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of any of the YGE Share Collateral or any of the YGE Negative Pledge
Shares.



          Section 4.12.   Affiliate Transactions.




     The Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, conduct any business or enter into or suffer to exist any transaction or series of
transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of
any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the
Company (an “Affiliate Transaction”), unless:



     (a) the terms of such Affiliate Transaction are:




     (i) set forth in writing,




     (ii) when taken as a whole, in the best interest of the Company or such Subsidiary, as
the case may be, and




     (iii) when taken as a whole, no less favorable to the Company or such Subsidiary, as
the case may be, than those that could be obtained in a comparable arm’s-length transaction
with a Person that is not an Affiliate of the Company; and



     (b) the Audit Committee of the Board of Directors of the Company approves such Affiliate
Transaction and, in its good faith judgment, determines that such Affiliate Transaction complies
with Sections 4.12(a)(ii) and 4.12(a)(iii), such determination to be evidenced by a
resolution of such Audit Committee that is made available to the Trustee.



     Notwithstanding the foregoing limitation, the Company or any of its Subsidiaries may enter
into or suffer to exist the following:




     (1) any transaction or series of transactions between the Company and one or more of
its Subsidiaries or between two or more of its Subsidiaries in the ordinary course of
business;




     (2) any Restricted Payment permitted to be made pursuant to Section 4.10 or any
Permitted Investment;




     (3) the payment of compensation (including amounts paid pursuant to employee benefit
plans) for the personal services of officers, directors and employees of the Company or any
of its Subsidiaries, so long as the Board of Directors in good faith shall have approved the
terms thereof and deemed the services theretofore or thereafter to be performed for such
compensation to be fair consideration therefor; and




     (4) loans and advances to employees made in the ordinary course of business and
consistent with the past practices of the Company or such Subsidiary, as the case may be,
provided that such loans and advances do not exceed $1,000,000 in the aggregate at any one
time outstanding; provided, however, that the Company and its Subsidiaries shall comply in
all material respects with all provisions of the Sarbanes-Oxley Act of 2002 and the rules
and regulations promulgated in connection therewith that would be applicable to an issuer
with debt securities registered under the Securities Act relating to such loans and
advances.



34









 





          Section 4.13.   Repurchase at the Option of Holders Following a Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company shall, within 7 days thereafter
notify the Trustee and the holders of such Change of Control, and within 30 days of a Change of
Control, make an offer (the “Change of Control Offer”) pursuant to the procedures set forth
in Section 3.02. Each holder shall have the right to accept such offer and require the
Company to repurchase all or any portion (equal to $100,000 or integral multiples of $1,000 in
excess thereof) of such holder’s Notes pursuant to the Change of Control Offer at a purchase price,
in cash equal to the Repurchase Amount.



     (b) The Company shall not be required to make a Change of Control Offer following a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under
such Change of Control Offer.



          Section 4.14.   Business Activities; Charter Documents.




     The Company shall not, and the Company shall not permit any of its Significant Subsidiaries
to, amend, alter, waive or repeal any provision of its certificate of incorporation, memorandum and
articles of association or any other of its organizational or constitutional documents in a way
that would be materially adverse to the interests of the holders of the Notes.



          Section 4.15.   Amendments to Security Documents




     The Company shall not amend, waive or otherwise modify, or permit or consent to any amendment,
waiver or other modification of the Security Documents other than in accordance with the terms
hereof.



          Section 4.16.   Use of Proceeds.




     The Company will not use the net proceeds from the sale of the First Tranche of the Notes, in
any amount, for any purpose other than as set forth in the Notes Purchase Agreement, and the
Company will not use the net proceeds from the sale of the Second Tranche of the Notes for any
purposes other than general corporate purposes (including for working capital purposes and for
funding capital expenditure), and pending the application of all of such net proceeds in such
manner, in each case to invest the portion of such net proceeds not yet so applied in Cash
Equivalents.



          Section 4.17.   Repurchase Upon Termination of Trading.




     Upon the occurrence of a Termination of Trading, the Company shall, within 7 days thereafter
notify the Trustee and the holders of such Termination of Trading, and within 30 days of a
Termination of Trading, make an offer (the “Termination of Trading Offer”) pursuant to the
procedures set forth in Section 3.02. Each holder shall have the right to accept such offer
and require the Company to repurchase all or any portion (equal to $100,000 or an integral multiple
of $1,000 in excess thereof) of such holder’s Notes pursuant to the Termination of Trading Offer at
a purchase price, in cash equal to the Repurchase Amount.



35









 





          Section 4.18.   Government Approvals and Licenses; Compliance with Law.




     The Company shall, and shall cause its Subsidiaries to, (a) obtain and maintain in full force
and effect all Governmental Approvals, authorizations, consents, permits, concessions and licenses
as are necessary to engage in its business as it is being carried on at the date of this Indenture
(b) comply with all laws, regulations, orders, judgments and decrees of any Governmental Authority,
to the extent that failure so to obtain, maintain, preserve and comply in respect of paragraphs (a)
and (b) would reasonably be expected to have a Material Adverse Effect.



          Section 4.19.   Engage Qualified Auditing Firms. 




     The Company shall maintain the appointment of any one of the “Big Four” accounting firms as
auditor of the Company and its Subsidiaries to audit the Company’s consolidated annual financial
statements and perform interim reviews of the Company’s consolidated quarterly financial
statements, all in accordance with Regulation S-X.



          Section 4.20.   Notes to Rank Senior.




     The Notes are senior secured obligations of the Company and rank pari passu in right of
payment with all existing and future debt of the Company that is not subordinated to the Notes and
rank senior in right of payment to any future Subordinated Obligations of the Company. The
Guarantees are senior unsecured obligations of the Guarantors and rank pari passu in right of
payment with all existing and future debt of the Guarantors that is not subordinated to the
Guarantees and rank senior in right of payment to any future Subordinated Obligations of the
Guarantors.



     Section 4.21.   Compliance Certificate. 



     (a) The Company shall deliver to the Trustee, as soon as the same become available, but in any
event within one hundred twenty (120) days after the end of each fiscal year of the Company a
certificate signed by either the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not to the actual knowledge of the
signer thereof the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults
and the nature and the status thereof of which the signer may have actual knowledge.



     (b) So long as any of the Notes remains outstanding, the Company will provide to the Trustee
within 60 calendar days after the end of the second Fiscal Quarter and within 120 calendar days
after the end of the fourth Fiscal Quarter of the Company, an Officers’ Certificate stating
the Debt to Equity Ratio and the Debt Service Coverage Ratio, each as of the end of the applicable
Fiscal Quarter, and showing in reasonable detail the calculation of such ratios and amounts,
including the arithmetic computations of each component of such ratios and amounts.



     (c) The Company will deliver to the Trustee, forthwith upon becoming aware of any Default or
Event of Default, an Officers’ Certificate specifying with particularity such Default or Event of
Default and further stating what action the Company has taken, is taking or proposes to take with
respect thereto.



36








 





          Section 4.22.   Reports by the Company and Provision of Information. 




     (a) At any time when the Company is subject to Section 13 or 15(d) of the Exchange Act, and to
the extent such reports, information and documents are not available on the Commission’s EDGAR or
IDEA systems, the Company shall deliver to the Trustee within 30 days after it files with the
Commission copies of the annual reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission may be rules and regulations
prescribe), if any, which the Company is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act (“Exchange Act Filings”); provided, however, the Company
shall not be required to deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. Delivery of such annual reports, information
and documents and other reports to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s
Certificate).



     (b) At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act,
upon the request of a holder of the Notes, the Company will promptly furnish or cause to be
furnished Rule 144A Information to such holder, to a prospective purchaser of such Notes designated
by such holder, to a beneficial owner of such Notes (as designated in writing to the Company by
such holder) or to a prospective purchaser designated by such beneficial owner, as the case may be,
in order to permit compliance by such holder or beneficial owner with Rule 144A in connection with
the resale of such Notes by such holder or beneficial owner; provided, however, that the Company
shall not be required to furnish such information in connection with any request made on or after
the date which is five years from the later of the Issue Date and the date such Notes (or any
predecessor Notes or the Notes surrendered for conversion) was acquired from the Company or an
“affiliate” of the Company within the meaning of Rule 144; and provided further, that the Company
shall not be required to furnish such information at any time to a prospective purchaser located
outside the United States who is not a “U.S. Person” within the meaning of Regulation S if such
Securities may then be sold to such prospective purchaser in accordance with Regulation S (or any
successor provision thereto). As used herein, “Rule 144A Information” means such
information as is specified pursuant to Rule 144A(d)(4) under the U.S. Securities Act (or any
successor provision thereto).



          Section 4.23.   Rights Agreement




     The Company shall take all such action to the extent permitted by law and as is reasonably
necessary to render inapplicable the Rights Agreement and any business combination or other similar
anti-takeover provision under the its constitutive documents or Cayman Islands law which is or
becomes applicable to the Noteholders solely as a result of the transactions contemplated by this
Indenture, including (a) the Company’s issuance of the Notes and Common Stock upon conversion of
the Notes and a Noteholder’s ownership of Notes and Common Stock upon conversion of such Notes and
(b) such Noteholder’s Beneficial Ownership of the Company’s Common Stock as of the First Tranche
Issue Date. Without limiting the generality of the foregoing, if at any time, any Noteholder
Beneficially Owns 9.5% or more of the Company’s Common Stock, upon the written request of such
Noteholder, the Company shall at its expense and to the extent permitted by law, promptly amend the
Rights Agreement to render it inapplicable to such Noteholder to the extent the Rights Agreement is
applicable solely as a result of the transactions contemplated by this Indenture, including as
described in clauses (a) and (b) above (such amendment to be in form and substance reasonably
acceptable such Noteholder).



37









 





ARTICLE 5




SUCCESSORS


     Section 5.01.   Merger, Consolidation and Sale of Assets.



     (a) The Company shall not merge, consolidate or amalgamate with or into any other Person
(other than a merger of a Wholly Owned Subsidiary into the Company) or sell, transfer, assign,
lease, convey or otherwise dispose of all or substantially all of its Property in any one
transaction or series of transactions unless:




     (i) the Company shall be the Surviving Person in such merger, consolidation or
amalgamation, or the Surviving Person (if other than the Company) formed by such merger,
consolidation or amalgamation or to which such sale, transfer, assignment, lease, conveyance
or disposition is made shall be a corporation organized and existing under Cayman laws;




     (ii) the Surviving Person (if other than the Company) expressly assumes, by
supplemental indenture in form satisfactory to the Trustee, executed and delivered to the
Trustee by such Surviving Person, the due and punctual payment of the principal of, and
premium, if any, and interest on, all the Notes, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this Indenture to
be performed by the Company;




     (iii) in the case of a sale, transfer, assignment, lease, conveyance or other
disposition of all or substantially all the Property of the Company, such Property shall
have been transferred as an entirety or virtually as an entirety to one Person;




     (iv) immediately before and after giving effect to such transaction or series of
transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clause
(v) below, any Debt that becomes, or is anticipated to become, an obligation of the
Surviving Person or any Subsidiary of the Surviving Person as a result of such transaction
or series of transactions as having been Incurred by the Surviving Person or such Subsidiary
at the time of such transaction or series of transactions), no Default or Event of Default
shall have occurred and be continuing;




     (v) immediately after giving effect to such transaction or series of transactions on a
pro forma basis, the Surviving Person shall have a Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of the Company immediately prior to such
transaction or series of transactions; and




     (vi) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’
Certificate and an Opinion of Counsel stating that such transaction or series of
transactions and the supplemental indenture, if any, in respect thereto comply with this
covenant and that all conditions precedent herein provided for relating to such transaction
or series of transactions have been satisfied.



     Section 5.02.   Successor Corporation Substituted.



     The Surviving Person shall succeed to, and be substituted for, and may exercise every right
and power of the Company or a Guarantor, as applicable, under this Indenture; provided, however,
that the



38








 







predecessor entity shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes and obligations under the Guarantee,
as the case may be, in the case of:



     (a) a sale, transfer, assignment, conveyance or other disposition unless such sale, transfer,
assignment, conveyance or other disposition is of all or substantially all of the assets of the
Company, taken as a whole or, in the case of a Guarantor, such sale, transfer, assignment,
conveyance or other disposition is of all or substantially all of the assets of such Guarantor to a
Person that is not (either before or after giving effect to such transaction) the Company or a
Subsidiary of the Company, or



     (b) a lease.



ARTICLE 6




REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT




          Section 6.01.   Events of Default. 




     If one or more of the following Events of Default shall have occurred and be continuing:




     (a) default in the payment of any installment of Interest upon any of the Notes as and
when the same shall become due and payable and continuance of such default for a period of
thirty (30) days; or




     (b) default in the payment of the principal of, and premium, if any, on, any of the
Notes as and when the same shall become due and payable either at maturity or in connection
with any redemption, repurchase or otherwise, in each case pursuant to Article 3, by
acceleration or otherwise; or




     (c) default in the Company’s obligation to provide an Offer to Purchase when required
in connection with a Change of Control or Termination of Trading as provided in Section
3.02;




     (d) failure to comply with Section 5.01;




     (e) failure on the part of the Company to perform any other of the covenants or
agreements on the part of the Company in the Notes or in this Indenture (other than a
covenant or agreement a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with) continued for a period of thirty (30) days after the date
on which written notice of such failure, requiring the Company to remedy the same, shall
have been given to the Company by the Trustee, or the Company and a Responsible Officer of
the Trustee by the holders of at least twenty-five percent (25%) in aggregate principal
amount of the Notes at the time outstanding, specifying the default, demanding that it be
remedied and stating that such notice is a “Notice of Default”; or




     (f) the Company, any of its Significant Subsidiaries (or any group of Subsidiaries
that, when taken together, would constitute a Significant Subsidiary) or any Guarantor or
Chargor pursuant to or within the meaning of any Bankruptcy Law:



39









 






     (i) commences a voluntary case or petition or gives notice of intention to make
a proposal under any Bankruptcy Law;




     (ii) consents to the entry of an order for relief against it in an involuntary
case or consents to its liquidation, dissolution, winding up or analogous process;




     (iii) consents to the appointment of a receiver, interim receiver, receiver and
manager, liquidator, provisional liquidator, trustee, custodian or any similar
Person of it or for all or substantially all of its property;




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




     (v) admits in writing its inability to pay its debts as they become due or
otherwise admits its insolvency; or




     (g) a court of competent jurisdiction enters a judgment, order or decree under any
Bankruptcy Law that:




     (i) is for relief against the Company, any of its Significant Subsidiaries (or
any group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary) or any Guarantor or the Chargor in an involuntary case; or




     (ii) appoints a receiver, interim receiver, receiver and manager, liquidator,
provisional liquidator, trustee, custodian or any similar Person of the Company, any
of its Significant Subsidiaries (or any group of Subsidiaries that, when taken
together, would constitute a Significant Subsidiary) or any Guarantor or the Chargor
or all or substantially all of the property of the Company, any of its Significant
Subsidiaries (or any group of Subsidiaries that, when taken together, would
constitute a Significant Subsidiary) or any Guarantor or the Chargor; or




     (iii) orders the liquidation of the Company or any of its Significant
Subsidiaries (or any group of Subsidiaries that, when taken together, would
constitute a Significant Subsidiary) or any Guarantor or the Chargor;



     and such order or decree remains unstayed and in effect for 60 consecutive days;




     (h) a default by the Company or any of its Subsidiaries under an instrument evidencing
any Debt of the Company or any of its Subsidiaries that results in acceleration of the
maturity of such Debt, or failure to pay any such Debt when due, in an aggregate amount
greater than $10,000,000 or its foreign currency equivalent at the time and continuance of
such default for a period of thirty (30) days;




     (i) any final non-appealable judgment or judgments for, the payment of money in an
aggregate amount in excess of $10,000,000 (or its foreign currency equivalent at the time)
that shall be rendered against the Company or any of its Subsidiaries and such judgment
remains undercharged, unpaid, unbonded or unstayed for a period of sixty (60) days;




     (j) any default by the Company or any Chargor under the Security Documents, which
adversely affects the enforceability, validity or priority (excluding, in the case



40









 







of this clause (j) as related to matters of priority, any Liens which do not secure
Debt and have priority by operation of law) of the applicable Lien on the Collateral or
which adversely affects the condition or value of the Collateral, taken as a whole, in any
material respect; the security interest under the Security Documents shall, at any time,
cease to be in full force and effect for any reason other than the satisfaction in full of
all obligations under the Indenture and discharge of the Indenture, or any security interest
created thereunder shall be declared invalid or unenforceable or the Company, any Guarantor
or any Chargor shall assert, in any pleading in any court of competent jurisdiction, that
any such security interest is invalid or unenforceable;




     (k) the Company, any Guarantor or the Chargor denies or disaffirms its obligations
under any Guarantee or any Security Document, or, other than in accordance with this
Indenture and the Security Documents, any Guarantee or any Security Document ceases to be or
is not in full force and effect, or the Collateral Agent ceases to have the priority
interest in the Collateral which is described in the relevant Security Document;




     (l) the Indenture, the Notes, any Guarantee or any Security Document shall be (A)
declared by any Governmental Authority to be illegal or unenforceable in any material
respect or (B) terminated prior to its scheduled termination date other than in accordance
with the terms of the Transaction Document;




     (m) the confiscation, expropriation or nationalization by any Governmental Authority of
any Property of the Company or any of its Subsidiaries which has or could be reasonably
likely to have a Material Adverse Effect; and




     (n) failure by the Company , any Guarantor or any Chargor to cure any non-compliance
with any of the other Transaction Documents, if such failure continues for 30 days after
written notice is given to the Company by the Trustee or the holders of not less than 25% in
aggregate principal amount of the Notes then outstanding specifying the default, demanding
that it be remedied and stating that such notice is a “Notice of Default”;



     then, and in each and every such case (other than an Event of Default specified in Section
6.01(f) or 6.01(g)), unless the principal of all of the Notes shall have already become
due and payable, either the Trustee or the holders of not less than twenty-five percent (25%) in
aggregate principal amount of the Notes then outstanding hereunder determined in accordance with
Section 13.04, by notice in writing to the Company (and to the Trustee if given by
Noteholders), may declare the principal of all the Notes, the Interest accrued thereon, all other
amounts outstanding hereunder, and an amount such that upon repayment to the Noteholders, the
Noteholders will receive a total amount in cash equal to the Repurchase Amount, to be due and
payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 6.01(f) or 6.01(g)
occurs, the principal of all the Notes, the Interest accrued thereon, all other amounts outstanding
hereunder, and an amount such that upon repayment to the Noteholders, the Noteholders will receive
a total amount in cash equal to the Repurchase Amount, shall be immediately and automatically due
and payable without necessity of further action.



     This provision, however, is subject to the conditions that if, at any time after the principal
of the Notes shall have been so declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or



41









 







shall deposit with the Trustee a sum sufficient to pay all matured installments of Interest
upon all Notes and the principal of any and all Notes (and all other amounts) which shall have
become due otherwise than by acceleration (with interest on overdue installments of Interest (to
the extent that payment of such interest is enforceable under applicable law) and on such principal
(and all other amounts) at the rate borne by the Notes, to the date of such payment or deposit) and
amounts due to the Trustee pursuant to Section 7.06, (ii) if any and all defaults under
this Indenture, other than the nonpayment of principal of (and all other amounts) and accrued
Interest on Notes which shall have become due by acceleration, shall have been cured or waived
pursuant to Section 6.08, then and in every such case the holders of a majority in
aggregate principal amount of the Notes then outstanding, by written notice to the Company and to
the Trustee, may waive all Defaults or Events of Default and rescind and annul such declaration and
its consequences; but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent Default or Event of Default, or shall impair any right consequent thereon. The
Company shall notify in writing a Responsible Officer of the Trustee, promptly upon becoming aware
thereof, of any Event of Default.



     In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the Company, the holders of Notes, and the Trustee shall continue as though no such proceeding
had been taken.



          Section 6.02.   Payments of Notes on Default; Suit Therefor. 




     The Company covenants that (a) in case default shall be made in the payment of any installment
of Interest upon any of the Notes as and when the same shall become due and payable, and such
default shall have continued for a period of thirty (30) days, or (b) in case default shall be made
in the payment of the principal of any of the Notes as and when the same shall have become due and
payable, whether at maturity of the Notes or in connection with any redemption or repurchase, by or
under this Indenture by declaration or otherwise, then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Notes, the whole amount that then
shall have become due and payable on all such Notes for principal, Interest and all other amounts
due, as the case may be, with interest upon the overdue principal and all other amounts due and (to
the extent that payment of such interest is enforceable under applicable law) upon the overdue
installments of Interest at the rate borne by the Notes, plus 5% and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including
compensation to the Trustee, its agents, attorneys and counsel, and all other amounts due the
Trustee under Section 7.06. Until such demand by the Trustee, the Company may pay the
principal of, all other amounts payable on, and Interest on the Notes to the registered holders,
whether or not the Notes are overdue.



     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor on the Notes
wherever situated the monies adjudged or decreed to be payable.



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Notes under any Bankruptcy Law, or in case a receiver, assignee
or



42









 







trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Company or such other obligor, the property of
the Company or such other obligor, or in the case of any other judicial proceedings relative to the
Company or such other obligor upon the Notes, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the Notes or other
amounts shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file
and prove a claim or claims for the whole amount of principal, Interest and all such other amounts
owing and unpaid in respect of the Notes, and, in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and of the Noteholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Notes, its or their creditors, or its or their property, and to
collect and receive any monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of any amounts due the Trustee under Section 7.06,
and to take any other action with respect to such claims, including participating as a member of
any official committee of creditors, as it reasonably deems necessary or advisable, and, unless
prohibited by law or applicable regulations, and any receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, custodian or similar official is hereby authorized by each of the
Noteholders 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 Noteholders, to pay to the Trustee any amount due it
for compensation, expenses, advances and disbursements, including counsel fees and expenses
incurred by it up to the date of such distribution. To the extent that such payment of
compensation, expenses, advances and disbursements out of the estate in any such proceedings shall
be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, monies, securities and other property which the holders
of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any
plan of reorganization or arrangement or otherwise.



     All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the holders of the Notes.



     In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.



          Section 6.03.   Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and Interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture. In addition, if an Event of Default
occurs and is continuing, the Trustee may, upon request of Noteholders of at least 25% of the
aggregate principal amount of the Notes then outstanding, instruct the Collateral Agent to
foreclose on the Collateral in accordance with the terms of the Security Documents and take such
further action on behalf of the Noteholders with respect to the Collateral as the Trustee deems
appropriate.



43









 





     The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding.



          Section 6.04.   Application of Monies Collected by Trustee. 




     Any monies or property collected by the Trustee pursuant to this Article shall be applied in
the order following, at the date or dates fixed by the Trustee for the distribution of such monies
or property, upon presentation of the several Notes and either (i) stamping thereon the payment, if
only partially paid, or (ii) upon surrender thereof, if fully paid.




     FIRST: To the payment of all amounts due the Trustee under Section 7.06 in
connection with the Trustee’s performance of its duties under this Indenture, the Security
Documents or the Notes, including the collection or distribution of such amounts held or
realized or in connection with expenses incurred in enforcing its remedies under the
Indenture, the Notes or the Security Documents or preserving the Collateral and all amounts
for which the Trustee is entitled to indemnification under the Security Documents;




     SECOND: In case the principal of the outstanding Notes shall not have become due and
be unpaid, to the payment of Interest on the Notes in default in the order of the maturity
of the installments of such Interest, together with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of Interest at the
rate specified in the Notes, such payments to be made ratably to the Noteholders;




     THIRD: In case the principal and any other amounts constituting the Repurchase Amount
of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid
to the payment of the whole amount then owing and unpaid upon the Notes for principal,
Interest and all other amounts, with Interest on the overdue principal, such other amounts
and (to the extent that such Interest has been collected by the Trustee) upon overdue
installments of Interest at the rate specified in the Notes, and in case such monies shall
be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to
the payment of such principal, Interest and such other amounts without preference or
priority of principal over Interest, or of Interest over principal, or of any installment of
Interest over any other installment of Interest, or of any Note over any other Note, ratably
to the aggregate of such principal and accrued and unpaid Interest to the Noteholders; and




     FOURTH: To the payment of the remainder, if any, to the Company or the Guarantors or
to whomever may be lawfully entitled thereto.



          Section 6.05.   Proceedings by Noteholder. 




     The holders of a majority in aggregate principal outstanding amount of the Notes may direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or
any Collateral Agent or of exercising any trust or power conferred on the Trustee or any Collateral
Agent; provided that the Trustee or Collateral Agent may refuse to follow any direction that
conflicts with law or this Indenture or the other Transaction Documents or, subject to Section
7.01., that the Trustee or such Collateral Agent determines is prejudicial to the rights of other
Noteholders. Each of the Trustee and the Collateral Agent shall have no liability for any action
taken or omitted to be taken by it in good faith in accordance with the direction of the holders of
not less than a


44








 




majority in principal amount of the Notes at
 the time outstanding relating to the time, method, or place of conducting any proceeding for
any remedy available to such Trustee or Collateral Agent, or exercising any trust or power
conferred upon the Trustee or Collateral Agent, under this Indenture or any other Transaction
Document.



     No holder of any Note shall have any right by virtue of or by reference to any provision of
this Indenture to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator,
custodian or other similar official, or for any other remedy hereunder, unless (a) such holder
previously shall have given to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided, (b) the holders of not less than twenty-five percent
(25%) in aggregate principal amount of the Notes then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such security or indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby in the form satisfactory to the
Trustee, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of
indemnity shall have neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the Trustee pursuant to
Section 6.08; it being understood and intended, and being expressly covenanted by the taker
and holder of every Note with every other taker and holder and the Trustee, that no one or more
holders of Notes shall have any right in any manner whatever by virtue of or by reference to any
provision of this Indenture to affect, disturb or prejudice the rights of any other holder of
Notes, or to obtain or seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Notes (except as otherwise provided herein); provided
that nothing contained herein or in the other Transaction Documents shall limit the rights of
holders holding not less than sixty-six and two-thirds percent (66.66%) of the aggregate principal
amount of the Notes then outstanding from instituting any suit, action or proceeding in equity or
at law upon, under or with respect to this Indenture, the Notes or the other Transaction Documents
or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or
for any other remedy hereunder or thereunder. For the protection and enforcement of this Section
each and every Noteholder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.



     Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any holder of any Note to receive payment of the principal of (including the purchase price upon
an Offer to Purchase or the repurchase price, in each case pursuant to Article 3) and
accrued Interest on such Note, on or after the respective due dates expressed in such Note or in
the event of an Offer to Purchase or a repurchase, as the case may be, or to institute suit for the
enforcement of any such payment on or after such respective dates against the Company shall not be
impaired or affected without the consent of such holder.



     Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any
Note, without the consent of either the Trustee or the holder of any other Note, in its own behalf
and for its own benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.



          Section 6.06.   Proceedings by Trustee. 




     In case of an Event of Default, the Trustee may, in its discretion, proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity or by action at law
or by proceeding in bankruptcy or


45








 





 otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.



          Section 6.07.   Remedies Cumulative and Continuing. 




     Except as provided in Section 2.06, all powers and remedies given by this Article to
the Trustee or to the Noteholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any thereof or of any other powers and remedies available to the Trustee or the
holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no delay or omission of
the Trustee or of any holder of any of the Notes to exercise any right or power accruing upon any
Default or Event of Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or any acquiescence therein, and,
subject to the provisions of Section 6.05, every power and remedy given by this Article or
by law to the Trustee or to the Noteholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Noteholders.



          Section 6.08.   Direction of Proceedings and Waiver of Defaults by Majority of Holders of
the Notes. 




     The holders of a majority in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 13.04 shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee or exercising any
trust or power conferred on the Trustee; provided that (a) such direction shall not be in conflict
with any rule of law or with this Indenture, (b) the Trustee may take any other action which is not
inconsistent with such direction, (c) the Trustee may decline to take any action that would benefit
some Noteholder to the detriment of other Noteholders and (d) the Trustee may decline to take any
action that would involve the Trustee in personal liability. Subject to Section 6.01, the
holders of a majority in aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 13.04 may, on behalf of the holders of all of the Notes, waive
any past Default or Event of Default hereunder and its consequences except (i) a default in the
payment of Interest on, or the principal of, or any Repurchase Amount in respect of, the Notes,
(ii) a failure by the Company to convert any Notes into Common Stock, (iii) a default in the
payment of the Purchase Price pursuant to Section 3.02, or (iv) a default in respect of a
covenant or provisions hereof which under Article 8 cannot be modified or amended without
the consent of the holders of each or all of the Notes then outstanding or affected thereby. Upon
any such waiver, the Company, the Trustee and the holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event
of Default hereunder shall have been waived as permitted by this Section, said Default or Event of
Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to
be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.



          Section 6.09.   Notice of Default. 




     If the Trustee receives notice of any Default or Event of Default from the Company, the
Trustee shall notify to all Noteholders, as the names and addresses of such holders appear upon the
Security Register, Notice of the Default or Event of Default within 90 days after it occurs, unless
the Default or Event of Default shall have been cured or waived before the giving of such notice;
provided that except in


46









 





 the case of default in the payment of the principal of or Interest on any
of the Notes, the Trustee shall be protected in withholding such notice if and so long as a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the withholding of such notice is
in the interests of the Noteholders.



          Section 6.10.   Undertaking to Pay Costs. 




     All parties to this Indenture agree, and each holder of any Note by his acceptance thereof
shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided that the provisions of this Section (to the extent permitted by law) shall
not apply to any suit instituted by the Trustee, to any suit instituted by any Noteholder, or group
of Noteholders, holding in the aggregate more than ten percent in principal amount of the Notes at
the time outstanding determined in accordance with Section 13.04, or to any suit instituted
by any Noteholder for the enforcement of the payment of the principal of or Interest on (or any
Repurchase Amount or other amount in respect of) any Note on or after the due date expressed in
such Note or to any suit for the enforcement of the right to convert any Note in accordance with
the provisions of Article 15.



ARTICLE 7




THE TRUSTEE




          Section 7.01.   Duties and Responsibilities of Trustee. 




     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. Whether or not expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or affording protection to the
Trustee is subject to this Article. The rights and protections provided to the Trustee in this
Article shall also apply to the Agents. However, the duties and obligations of the Trustee and the
Agents hereunder are several and not joint. In case an Event of Default has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person’s own affairs.



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




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




     (i) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set forth in this
Indenture


47








 




and no implied covenants, duties or obligations shall be read into this
Indenture against the Trustee; and


     (ii) in the absence of bad faith and willful misconduct on the part of the
Trustee, the Trustee may conclusively rely as to the truth of the statements and the
correctness 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 under this Indenture, 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 verify, or investigate
the accuracy of mathematical calculations or other facts stated therein;




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




     (c) 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 Notes at the time outstanding determined as
provided in Section 13.04 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;




     (d) 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 7.01;




     (e) 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 Notes;




     (f) 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; and




     (g) the Trustee shall not be deemed to have knowledge of any Default or Event of
Default hereunder unless a Responsible Officer of the Trustee at the Corporate Trust Office
shall have been notified in writing of such Default or Event of Default by the Company or
the holders of at least 25% in aggregate principal amount of the Notes.



     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.


Notwithstanding anything to the contrary contained in this Indenture, none of the Agents shall be
obliged to act or omit to act in accordance with any instruction, direction or request delivered to
them by the Company




48








 





unless such instruction, direction or request is delivered to such Agents
according to the provisions under
this Indenture in writing. Each of the Agents may, in connection with its services hereunder rely
upon the terms of any notice, communication or other document believed by it to be genuine.




          Section 7.02.   Rights of Trustee. 




          Subject to its duties and responsibilities under Section 7.01:





     (a) The Trustee may conclusively 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 or an Assistant
Secretary of the Company; the Trustee shall be entitled to accept such certificate as
sufficient and conclusive evidence of the fulfillment of the applicable conditions
precedent, in which event it shall be conclusive and binding on the Noteholders.




     (c) The Trustee may consult with counsel of its own selection (with such reasonable,
out-of-pocket expenses of such counsel reimbursable pursuant to Section 7.06) 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; the Trustee shall be entitled to accept such opinion as
sufficient and conclusive evidence of the fulfillment of the applicable conditions
precedent, in which event it shall be conclusive and binding on the Noteholders.




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



49









 






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




     (i) The Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by
any person authorized to sign an Officers’ Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.




     (j) Any permissive right or authority granted to the Trustee shall not be construed as
a mandatory duty.




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




     (l) The Trustee shall have no duty to inquire as to the performance of the Company’s
covenants herein.




     (m) Neither the Trustee nor any clearing system through which the Notes are traded
shall have any obligation or duty to monitor, determine or inquire as to compliance, and
shall not be responsible or liable for compliance, with restrictions on transfer, exchange,
redemption, purchase or repurchase, as applicable, of minimum denominations imposed
hereunder or under applicable law or regulation with respect of any transfer, exchange,
redemption, purchase or repurchase, as applicable, of interest in any Note.




     (n) In the event the Trustee receives inconsistent or conflicting requests and
indemnity from two or more groups of Noteholders, each representing less than a majority in
aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this
Indenture, the Trustee, in its sole discretion, may determine what action, if any, will be
taken.




     (o) The Trustee is entitled to enter into business transactions with the Company, its
Affiliates or any entity related thereto without accounting for any profit. However, the
Trustee must comply with Section 7.07.




     (p) In connection with the exercise of its functions (including but not limited to
those in relation to any proposed modification, authorization, waiver or substitution), the
Trustee will have regard to the interests of the Noteholders as a class, and will not have
regard to the consequences of such exercise for individual Noteholders. The Trustee will not
be entitled to require, nor will any Noteholder be entitled to claim, from the Company or
any Guarantor, any indemnification or payment in respect of any tax consequences of any such
exercise upon individual Noteholders.



50









 






     (q) The Trustee may refrain from taking any action in any jurisdiction if the taking of
such action in that jurisdiction would, in its opinion based upon legal advice in the
relevant jurisdiction, be contrary to any law of that jurisdiction or, to the extent
applicable, of the State of New York. Furthermore, the Trustee may also refrain from taking
such action if it would otherwise render it liable to any person in that jurisdiction or the
State of New York or if, in its opinion based upon such legal advice, it would not have the
power to do the relevant thing in that jurisdiction by virtue of any applicable law in that
jurisdiction or in the State of New York or if it is determined by any court or other
competent authority in that jurisdiction or in the State of New York that it does not have
such power.




     (r) The Trustee shall not be responsible or liable for special, indirect, punitive, or
consequential damages or loss 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.



     Notwithstanding any provision herein to the contrary, the Trustee shall not be obligated to
take any action with respect to an Event of Default pursuant to Section 6.01(j) unless it
has been first notified to do so in writing by the holders of at least 25% in aggregate principal
amount of the outstanding Notes.



          Section 7.03.   No Responsibility for Recitals, Etc. 




     The recitals, statements, representations and warranties contained herein and in the Notes
(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 accuracy or correctness of the same or
for the execution, legality, effectiveness, adequacy, genuineness, validity or enforceability or
admissibility in evidence of any such agreement or other document or any security constituted
thereby or pursuant thereto. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.



          Section 7.04.   Trustee, Paying Agents, Conversion Agents, Collateral Agents or Registrar
May Own Notes. 




     The Trustee, any paying agent, any conversion agent, Collateral Agent or Registrar, in its
individual or any other capacity, may become the owner or pledgee of Notes with the same rights it
would have if it were not Trustee, paying agent, conversion agent, Collateral Agent or Registrar.



          Section 7.05.   Monies to Be Held in Trust. 




     Subject to the provisions of Section 12.04, all monies received by the Trustee or any
Agent 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 or any Agent in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee and the Agents 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 or the applicable
Agent(s).


          Section 7.06.   Compensation and Expenses of Trustee. 


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     The Company and each Guarantor, jointly and severally, covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such 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 and each Guarantor, jointly
and severally, will pay or reimburse the Trustee upon its request for all reasonable, out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture and the Security Documents (including the 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 shall be determined to have been caused by its own
gross negligence, bad faith or willful misconduct. If an Event of Default shall have occurred or
if the Trustee finds it expedient or necessary or is requested by the Company to undertake duties
which the Trustee believes to be of an exceptional nature or is otherwise outside the scope of the
Trustee’s normal duties under this Indenture, the Company will pay such additional remuneration as
the Trustee and the Company may agree in writing. When the Trustee incurs fees, expenses or
renders services in connection with an Event of Default, the fees and expenses (including such
charges and expenses incurred by its counsel and all applicable taxes) and the compensation for the
services are intended to constitute expenses of administration under any Bankruptcy Law. All
rights, protections and benefits of the Trustee shall be extended to the Trustee acting as an Agent
with respect thereto. The Company and each Guarantor, jointly and severally, covenants to indemnify
and hold harmless the Trustee and any predecessor Trustee (or any officer, director, agent or
employee of the Trustee) in any capacity under this Indenture and the Security Documents (which,
for the avoidance of doubt, includes its duties as Collateral Agent, paying agent, conversion agent
or Registrar) and its agents and any authenticating agent for any and all loss, liability, damage,
claim or expense, including taxes (other than taxes based on the income of the Trustee) incurred
without gross negligence, bad faith or willful misconduct on the part of the Trustee or such
officers, directors, employees and agents or authenticating agent, as the case may be, and arising
out of or in connection with the acceptance or administration of this trust, its duties under this
Indenture, the Notes, the Guarantee and the Security Documents, including the costs and expenses
arising under this Indenture, the Notes, the Guarantee and the Security Documents and defending
themselves against any claim (whether asserted by the Company, any holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate or indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and advances shall be secured by a lien prior
to that of the Notes 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 Notes. The obligation of the
Company under this Section shall survive the satisfaction and discharge of this Indenture pursuant
to Article 12, the termination of this Indenture and the Security Documents, the
resignation or removal of the Trustee or payment in full of the Notes through the expiration of the
applicable statute of limitations.



     To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, and interest on particular Notes. Such Lien shall survive
the satisfaction and discharge of this Indenture pursuant to Article 12, the termination of
this Indenture and the Security Documents, the resignation or removal of the Trustee or payment in
full of the Notes through the expiration of the applicable statute of limitations.



     When the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 6.01(f) or (g) with respect to the
Company occurs, the



52









 







expenses and the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.



          Section 7.07.   Eligibility and Disqualification of Trustee. 




     There shall at all times be a Trustee hereunder which shall be a Person that has 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 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. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.



          Section 7.08.   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 Notes. 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
Noteholders, the resigning Trustee may, upon ten (10) Business Days’ notice to the Company and the
Noteholders, petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor trustee, or, any Noteholder who has been a bona fide holder of a Note or
Notes for at least six (6) months may, subject to the provisions of Section 6.10, 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 cease to be eligible in accordance with the provisions of
Section 7.09 and shall fail to resign after written request therefor by the Company
or by any such Noteholder; or




     (ii) 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 its 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 6.10, any Noteholder who has been a bona fide holder
of a Note or Notes 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 that if no successor Trustee shall have been appointed
and have accepted appointment sixty (60) days after either the Company or such Noteholder has
removed the Trustee, or the Trustee resigns, the Trustee so removed may petition, at the expense of
the Company, any court of competent jurisdiction for an appointment of a successor trustee.




53









 







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 Notes 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
Noteholder, or, if such Trustee so removed or any Noteholder fails to act, the Company, upon the
terms and conditions and otherwise as in Section 7.08(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 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 7.09.



     (e) Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.



          Section 7.09.   Acceptance by Successor Trustee. 




     Any successor trustee appointed as provided in Section 7.08 shall execute, acknowledge
and deliver to the Company and to its 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 7.06, 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 Notes, to secure any amounts then due it pursuant to the provisions of
Section 7.06.



     No successor trustee shall accept appointment as provided in this Section unless, at the time
of such acceptance, such successor trustee shall be eligible under the provisions of Section
7.07.



     Upon acceptance of appointment by a successor trustee as provided in this Section, the Company
(or the former trustee, upon the written direction of the Company and at the expense of the
Company) shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
holders of Notes 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 7.10.   Succession by Merger. 




     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



54









 







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 eligible under the provisions of Section 7.07. The Trustee shall provide the Company
with a written notice within thirty (30) days after the closing of such merger, conversion or
consolidation.



     In any case where at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture, any of the Notes 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 Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or any authenticating agent appointed by such successor trustee may
authenticate such Notes in the name of the successor trustee; and in all such cases such
certificates shall have the full force that is provided in the Notes or in this Indenture; provided
that the right to adopt the certificate of authentication of any predecessor Trustee or to
authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.



          Section 7.11.   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 Notes 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.



          Section 7.12.   Certain Provisions.




     Each Noteholder by accepting a Note authorizes and directs on his or her behalf the Trustee to
enter into and to take such actions and to make such acknowledgements as are set forth in this
Indenture or other documents entered into in connection therewith.



     The Trustee shall not be responsible for the legality, validity, effectiveness, suitability,
adequacy or enforceability of any of the Security Documents or any obligation or rights created or
purported to be created thereby or pursuant thereto or any security or the priority thereof
constituted or purported to be constituted thereby or pursuant thereto, nor shall it be responsible
or liable to any person because of any invalidity of any provision of such documents or the
unenforceability thereof, whether arising from statute, law or decision of any court. The Trustee
shall be under no obligation to monitor or supervise the functions of the Collateral Agent under
the Security Documents and shall be entitled to assume that the Collateral Agent is properly
performing its functions and obligations thereunder and the Trustee shall not be responsible for
any diminution in the value of or loss occasioned to the assets subject thereto by reason of the
act or omission by the Collateral Agent in relation to its functions thereunder. The Trustee shall
have no



55









 







responsibility whatsoever to the Company, any Guarantor or any Noteholder as regards any
deficiency which might arise because the Trustee is subject to any tax in respect of the Security
Documents, the security created thereby or any part thereof or any income therefrom or any proceeds
thereof.



          Section 7.13.   Discretion of the Trustee.




     Whenever in this Indenture or by law, the Trustee shall have discretion or permissive power it
may decline to exercise the same in the absence of approval by the Noteholders.



          Section 7.14.   Force Majeure.




     Notwithstanding anything to the contrary in this Indenture or in any other transaction
document, the Trustee shall not in any event be liable for any failure or delay in the performance
of its obligations hereunder if it is prevented from so performing its obligations by any existing
or future law or regulation, any existing or future act of governmental authority, Act of God,
flood, war whether declared or undeclared, terrorism, riot, rebellion, civil commotion, strike,
lockout, other industrial action, general failure of electricity or other supply, aircraft
collision, technical failure, accidental or mechanical or electrical breakdown, computer failure or
failure of any money transmission system or any reason which is beyond the control of the Trustee.



          Section 7.15.   Acceleration.




     The Trustee shall not be obliged to declare the Notes immediately due and payable under the
Indenture unless it has received from Noteholders such indemnity and security to its reasonable
satisfaction in respect of all costs, claims and liabilities which it may as a consequence thereof
in its reasonable opinion render itself, or have rendered itself, liable (excluding any costs,
claims or liabilities to the extent arising from the Trustee’s gross negligence or willful
misconduct).



          Section 7.16.   Error of Judgment.




     The Trustee shall not be liable for any error of judgment by any officer or employee of the
Trustee assigned by the Trustee to administer its corporate trust matters (in each case other than
arising from the Trustee’s gross negligence or willful misconduct)



          Section 7.17.   Event of Default.




     If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such
Person’s own affairs subject to Articles 6 and 7 hereof.



ARTICLE 8




SUPPLEMENTAL INDENTURES




          Section 8.01.   Supplemental Indentures Without Consent of Noteholders. 




56









 





     The Company, when authorized by the resolutions of the Board of Directors, and the Trustee
may, from time to time, and at any time enter into an indenture or indentures supplemental hereto
for one or more of the following purposes:




     (a) make provision with respect to the conversion rights of the holders of Notes
pursuant to the requirements of Section 15.05 and the purchase obligations of the
Company pursuant to the requirements of Section 3.02.;




     (b) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Notes, any property or assets;




     (c) to evidence the succession of another Person to the Company, or successive
successions, and the assumption by the successor Person of the covenants, agreements and
obligations of the Company pursuant to Article 12;




     (d) to add to the covenants of the Company such further covenants, restrictions or
conditions as the Board of Directors and the Trustee shall consider to be for the benefit of
the holders of Notes, and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions a Default or an Event
of Default permitting the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided that, in respect of any such additional covenant,
restriction or condition, such supplemental indenture may provide for a particular period of
grace after Default (which period may be shorter or longer than that allowed in the case of
other Defaults) or may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such Default;




     (e) to provide for the issuance under this Indenture of Notes in coupon form (including
Notes registrable as to principal only) and to provide for exchangeability of such Notes
with the Notes issued hereunder in fully registered form and to make all appropriate changes
for such purpose;




     (f) to cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture that may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture that shall not materially
adversely affect the interests of the holders of the Notes;




     (g) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes;




     (h) add additional Guarantees, Security Documents or additional Guarantors, Chargor or
other obligors with respect to the Notes or release Guarantors from guarantees as permitted
by the terms of this Indenture;




     (i) to comply with any requirements of the Commission in order to effect or maintain
qualifying, or maintaining the qualification of, this Indenture;




     (j) further secure the Notes, or release all or any portion of the Collateral pursuant
to the terms of the Security Documents; or



57









 






     (k) to increase, from time to time, the per annum interest rate on the Notes for any
period.



     Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any
supplemental indenture (in form satisfactory to the Trustee), the Trustee is hereby authorized to
join with the Company in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder; provided that the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section may be executed by the
Company and the Trustee without the consent of the holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 8.02.



          Section 8.02.   Supplemental Indenture with Consent of Noteholders. 




     With the consent (evidenced as provided in Article 13) of the holders of a majority in
aggregate principal amount of the Notes at the time outstanding, the Company, when authorized by
the resolutions of the Board of Directors, and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights of the holders of the Notes or any
term of any other Transaction Document; provided that no such supplemental indenture shall:




     (a) extend the fixed maturity of any Note;




     (b) reduce the rate or extend the time of payment of Interest thereon;




     (c) reduce the principal amount thereof or reduce any amount payable on redemption or
repurchase thereof;




     (d) change the obligation of the Company to repurchase any Note upon the happening of a
Termination of Trading in a manner adverse to the holders of Notes;




     (e) impair the right of any Noteholder to institute suit for the payment thereof;




     (f) make the principal thereof or Interest thereon payable in any coin or currency
other than that provided in the Notes;




     (g) impair the right to convert the Notes into Common Stock or reduce the number of
            shares of Common Stock or any other property receivable by a Noteholder upon conversion
subject to the terms set forth herein, including Section 15.05, in each case,
without the consent of the holder of each Note so affected;




     (h) modify any of the provisions of this Section or Section 6.08, except to
increase any such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the holder of each Note so affected;



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     (i) change any obligation of the Company to maintain an office or agency in the places
and for the purposes set forth in Section 4.02;




     (j) reduce the quorum or voting requirements set forth in Article 14;




     (k) subordinate the Notes or any Guarantee to any other obligation of the Company or
the applicable Guarantor;




     (l) release the security interest granted in favor of the holders of the Notes in the
Collateral other than pursuant to the terms of the Security Documents or Section
10.02;




     (m) release any other security interest that may have been granted in favor of the
holders of the Notes other than pursuant to the terms of such security interest;




     (n) reduce any premium payable upon a Change of Control or, at any time after a Change
of Control has occurred, change the time at which the Change of Control Offer relating
thereto must be made or at which the Notes must be repurchased pursuant to such Change of
Control Offer;




     (o) make any change in any Guarantee that would adversely affect the holders; or




     (p) reduce the aforesaid percentage of Notes, the holders of which are required to
consent to any such supplemental indenture,



     in each case, without the consent of the holders of all Notes affected thereby.



     Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any
such supplemental indenture (in form satisfactory to the Trustee), and upon the filing with the
Trustee of evidence of the consent of the Noteholders as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.



     It shall not be necessary for the consent of the Noteholders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.



          Section 8.03.   Effect of Supplemental Indenture. 




     Upon the execution of any supplemental indenture pursuant to the provisions of this Article,
this Indenture shall be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of the Notes shall thereafter be determined,
exercised and enforced hereunder, subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and shall be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.



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          Section 8.04.   Notation on Notes. 




     Notes authenticated and delivered after the execution of any supplemental indenture pursuant
to the provisions of this Article may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may,
at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or
an authenticating agent duly appointed by the Trustee pursuant to Section 16.10) and
delivered in exchange for the Notes then outstanding, upon surrender of such Notes then
outstanding.



          Section 8.05.   Evidence of Compliance of Supplemental Indenture to Be Furnished to
Trustee. 




     Prior to entering into any supplemental indenture, or any amendment to any Security Document,
the Trustee shall be provided with, in addition to the documents required by Section 15.05,
an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental
indenture or amendment to any Security Document executed pursuant hereto complies with the
requirements of this Article and is otherwise authorized or permitted by this Indenture and, where
applicable, the Security Documents.



ARTICLE 9




GUARANTEES




          Section 9.01.   Guarantee.




     Subject to this Article 9, each Guarantor unconditionally guarantees to each holder of
a Note authenticated and delivered by the Trustee and to the Trustee and its successors and
assigns, the matters set out in the Guarantee executed by such Guarantor. Failing payment when due
of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay and perform the same immediately pursuant to the
terms of the Guarantee.



          Section 9.02.   Limitation on Guarantor Liability.




     (a) Each Guarantor, and by its acceptance of Notes, each holder, hereby confirms that it is
the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law, or the laws of any
applicable jurisdiction, to the extent applicable to any guarantee. To effectuate the foregoing
intention, the Trustee, the holders and the Guarantors hereby irrevocably agree that each
Guarantor’s liability shall be that amount from time to time equal to the aggregate liability of
such Guarantor under the guarantee, but shall be limited to the lesser of (a) the aggregate amount
of the Company’s obligations under the Notes and this Indenture or (b) the amount, if any, which
would not have (1) rendered the Guarantor “insolvent” (as such term is defined in Bankruptcy Law
and in the Debtor and Creditor Law of the State of New York) or (2) left it with unreasonably small
capital at the time its guarantee with respect to the Notes was entered into, after giving effect
to the incurrence of existing Debt immediately before such time; provided, however, it shall be a
presumption in any lawsuit or proceeding in which a Guarantor is a party that the amount guaranteed



60









 







pursuant to the guarantee with respect to the Notes is the amount described in clause (a)
above unless any creditor, or representative of creditors of the Guarantor, or debtor in possession
or trustee in bankruptcy of the Guarantor, otherwise proves in a lawsuit that the aggregate
liability of the Guarantor is limited to the amount described in clause (b).



     (b) In making any determination as to the solvency or sufficiency of capital of a Guarantor in
accordance with the proviso of Section 9.02(a), the right of each Guarantor to contribution
from other Guarantors or any other Person and any other rights such Guarantor may have, contractual
or otherwise, shall be taken into account.



          Section 9.03.   Execution and Delivery of Guarantee




     To evidence its Guarantee, each Guarantor hereby agrees that a notation of such Guarantee in
substantially the form included in Exhibit B attached hereto shall be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Guarantor by its President or one of its Vice
Presidents. Each Guarantor hereby agrees that its Guarantee shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an Officer
whose signature is on this Indenture or on the Guarantee no longer holds that office at the time
the Trustee authenticates the Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless. The delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the
Guarantors.



ARTICLE 10




COLLATERAL AND SECURITY




          Section 10.01.   Security Documents.




     (a) The due and punctual payment of the principal of and interest on the Notes when and as the
same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the
Notes and any other amounts constituting the Repurchase Amount and performance of all other
obligations of the Company to the holders or the Trustee under this Indenture and the Notes,
according to the terms hereunder or thereunder, are secured as provided in the Security Documents,
including the Initial Security Documents which the Major Shareholder has entered into
simultaneously with the execution of this Indenture and which are attached as Exhibit E
hereto. Each holder, by its acceptance thereof, consents and agrees to the terms of the Security
Documents (including, without limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to time in accordance with its
terms and authorizes and directs the Collateral Agent to enter into the Security Documents and to
perform its obligations and exercise its rights thereunder as a secured party in accordance
therewith. The Company and the Chargor will do or cause to be done all such acts and things as may
be required by applicable law or may be necessary or proper, or as may be required by the
provisions of the Security Documents, to assure and confirm to the Collateral Agent and the Trustee
the security interest in the Collateral contemplated hereby, by the Security Documents or any part
thereof, as from time to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes
herein expressed. The Company and the Chargor will take, and will cause its Subsidiaries to take,
any and all actions reasonably required to cause the Security



61









 







Documents to create and maintain, as security for the Note Obligations, a valid and
enforceable Lien in and on all the Collateral as described in each Collateral Document, in favor of
the Collateral Agent, as secured party, for the benefit of the holders, superior to and prior to
the rights of all third Persons and subject to no other Liens other than as permitted under the
Security Documents.



          Section 10.02.   Release of Collateral.




     (a) At any time when a Default or an Event of Default has occurred and is continuing and the
maturity of the Notes has been accelerated (whether by declaration or otherwise), no release of
Collateral pursuant to the provisions of the Security Documents will be effective as against the
holders.



     (b) Upon any conversion of the Notes into Common Stock of the Company pursuant to Article
15, at the request of the Chargor, YGE Share Collateral subject to the YGE Share Charge shall
be released from the YGE Share Charge but only to the extent that, as of the applicable date that
the Common Stock is issued pursuant to such conversion, the quotient of (i) the number of shares of
Common Stock remaining subject to the YGE Share Charge (after giving effect to the proposed
release) multiplied by the Current Market Price determined as of the date of conversion,
divided by (ii) the outstanding principal balance of the Notes (after giving effect to the
conversion), immediately is equal to 1.13 (representing the deemed value of the 10,000,000 shares
of Common Stock initially subject to the YGE Share Charge at the initial Conversion Price of $5.65
per share (i.e., $56,500,000), divided by $50,000,000, which is the aggregate principal amount of
the Notes potentially issuable under this Indenture), provided that all of the YGE Share Collateral
shall be released from the YGE Share Charge if no Notes remain outstanding (after giving effect to
the conversion). Upon the receipt of written request from the Company and an accompanying
Officer’s Certificate certifying that the conditions set forth in this Section 10.02(b) have been
satisfied, the Trustee shall provide such instructions to the Collateral Agent as the Company may
reasonably request so as to effect the release of YGE Share Collateral pursuant to this Section
10.02; provided that the Noteholders will be given at least five (5) Business Days prior
written notice before any release of the YGE Share Collateral pursuant to this Section
10.02.



     (c) The release of any Collateral from the terms of this Indenture and the Security Documents
will not be deemed to impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Collateral is released pursuant to the terms of the Security
Documents and hereof.



          Section 10.03.   Authorization of Actions to Be Taken by the Trustee Under the Security
Documents.




     Subject to the provisions of Section 7.01 and 7.02, the Trustee may, in its
sole discretion and without the consent of the holders, take, on behalf of the holders, all actions
it deems necessary or appropriate in order to:



     (a) enforce any of the terms of the Security Documents; and



     (b) collect and receive any and all amounts payable in respect of the Note Obligations.



     The Trustee will have power to institute and maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in
violation of the Security Documents or this Indenture, and such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the interests of the holders in
the Collateral (including power to institute



62









 







and maintain suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the interests of the holders or of the
Trustee).



          Section 10.04.   Authorization of Receipt of Funds by the Trustee Under the Security
Documents.




     The Trustee is authorized to receive any funds for the benefit of the holders distributed
under the Security Documents, and to make further distributions of such funds to the holders
according to the provisions of this Indenture.




          Section 10.05.   Termination of Security Interest.




     Upon the payment in full of all Obligations of the Company under this Indenture and the Notes,
the Trustee will, at the request of the Company, promptly instruct the Collateral Agent to release
the Liens pursuant to this Indenture and the Security Documents.




          Section 10.06.   Appointment of Collateral Agent. 




     The parties hereto acknowledge and agree, and each Noteholder by accepting a Note acknowledges
and agrees, that the Company hereby irrevocably appoints DB Trustees (Hong Kong) Limited as
Collateral Agent hereunder. The Collateral Agent shall have such duties and responsibilities, with
respect to the Noteholders, as are explicitly set forth herein and in the Security Document to
which it is a party and no others; provided that the Collateral Agent shall only take action with
respect to or under the Security Document in accordance with the written instructions of the
Trustee acting on behalf of the Noteholders, or Noteholders holding not less than 25% of the
principal amount of the Notes then outstanding, and shall apply any proceeds from the enforcement
of any security, as set forth in this Indenture. The Trustee may delegate any of its rights and
responsibilities with respect to the Collateral and all matters pertaining thereto hereunder or
under the Security Documents to the Collateral Agent. The provisions of this Article 10
relating to the Trustee acting in such capacity shall apply to the Collateral Agent to the extent
applicable. In addition, the Company hereby agrees to indemnify the Collateral Agent with respect
to the Collateral Agent’s duties under this Indenture and the Security Documents on the same basis,
to the same extent and subject to the same limitations, as the Company’s indemnification of the
Trustee pursuant to Section 7.06.



ARTICLE 11




SURETYSHIP WAIVERS




     Each Guarantor and the Chargor hereby agrees that its obligations with regard to its Guarantee
or Security Document, as the case may be, shall be joint and several, unconditional, irrespective
of the validity or enforceability of the Notes or the obligations of the Company, any Guarantor or
the Chargor under this Indenture or the other Transaction Documents, the absence of any action to
enforce the same, the recovery of any judgment against the Company or any other obligor with
respect to this Indenture, the Notes, the other Transaction Documents or the Obligations of the
Company, the Guarantors and the Chargor under this Indenture, the Notes and the other Transaction
Documents, any action to enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor or Chargor. Each Guarantor and Chargor further, to the extent permitted by law, waives
and relinquishes all claims, rights and remedies accorded by applicable law to



63








 







guarantors and sureties and agrees not to assert or take advantage of any such claims, rights
or remedies, including but not limited to: (a) any right to require any of the Trustee, the
holders, the Company, any other Guarantor or any other Chargor (each a “Benefited Party”),
as a condition of payment or performance by such Guarantor or Chargor (or as a condition to the
enforcement against any Collateral or any other right or remedy granted pursuant to the Security
Documents or under applicable law), to (1) proceed against the Company, any other guarantor
(including any other Guarantor) of the Obligations, any other Person providing security for the
Obligations (including the Chargor) or any other Person, (2) proceed against or exhaust any
security held from the Company, any other guarantor, any Person providing security for the
Obligations or any other Person, (3) proceed against or have resort to any balance of any deposit
account or credit on the books of any Benefited Party in favor of the Company or any other Person,
or (4) pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or other defense of the
Company including any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Guarantees or any of the obligations or the security
under the Security Documents or any defense or any agreement or instrument relating thereto or by
reason of the cessation of the liability of the Company from any cause other than payment in full
of the Obligations under the Notes and the Guarantees; (c) any defense based upon any statute or
rule of law which provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (d) any defense based upon any Benefited
Party’s errors or omissions in the administration of the Obligations under the Notes or the
Guarantees or the security or rights or remedies provided under the Security Dcouments, except
behavior which amounts to bad faith; (e)(1) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of the Guarantees or Security Documents
and any legal or equitable discharge of such Guarantor’s or Chargor’s obligations hereunder or
thereunder, (2) the benefit of any statute of limitations affecting such Guarantor’s or Chargor’s
liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and
counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect,
secure, perfect or insure any security interest or lien or any property subject thereto; (f)
notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance of the Guarantees, acceptance of the Security
Documents, notices of Default under the Notes or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Obligations under the Notes or the
Guarantees or any agreement related thereto, and notices of any extension of credit to the Company
and any right to consent to any thereof; (g) to the extent permitted under applicable law, the
benefits of any “One Action” or similar rule of any jurisdiction and (h) any defenses or benefits
that may be derived from or afforded by law which limit the liability of or exonerate guarantors or
sureties or parties providing security for the obligations of another, or which may conflict with
the terms of the Guarantees or the Security Documents. Except to the extent expressly provided
herein, including Section 9.05, each Guarantor hereby covenants that its Guarantee and the
Chargor covenants that the obligations and security provided under the applicable Security Document
shall not be discharged except by complete performance of the obligations contained herein, in the
Notes, in the applicable Guarantee and in the applicable Security Document.



     If any holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors, any Chargor or any custodian, trustee, liquidator or other similar official acting
in relation to either the Company, the Guarantors or the Chargor, any amount paid by either to the
Trustee, such holder or Collateral Agent, the Guarantee of such Guarantor and the Security Document
(and all of the security interests and all other rights and remedies granted therein), to the
extent theretofore discharged, shall be reinstated in full force and effect.



64









 





     Each Guarantor and the Chargor agrees that it shall not be entitled to any right of
subrogation in relation to the holders in respect of any obligations guaranteed or secured until
payment in full of all obligations guaranteed or secured, as the case may be. Each Guarantor and
the Chargor further agrees that, as between the Guarantors and the Chargor, on the one hand, and
the holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed and
secured under the applicable Transaction Documents may be accelerated as provided in Section
6.01 for the purposes of the Guarantee and the applicable Security Documents and the rights and
remedies granted therein, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations so guaranteed or secured and (y) in the event of any
declaration of acceleration of such obligations as provided in Section 6.01, such
obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of the Guarantee and the Trustee and the holders shall have all rights
and remedies available to them in accordance the Security Documents and applicable law. The
Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the holders under the Guarantee.



ARTICLE 12




SATISFACTION AND DISCHARGE OF INDENTURE




          Section 12.01.   Discharge of Indenture. 




     When (a) the Company shall deliver to the Trustee for cancellation all Notes theretofore
authenticated (other than any Notes that have been mutilated, destroyed, lost or stolen and in lieu
of or in substitution for which other Notes shall have been authenticated and delivered) and not
theretofore cancelled, or (b) all the Notes not theretofore cancelled or delivered to the Trustee
for cancellation shall have become due and payable at their scheduled maturity or upon repurchase
or redemption in accordance with the terms of this Indenture, and the Company shall deposit with
the Trustee, in trust, funds sufficient to pay at maturity or upon such repurchase or redemption of
all of the Notes (other than any Notes that shall have been mutilated, destroyed, lost or stolen
and in lieu of or in substitution for which other Notes shall have been authenticated and
delivered) not theretofore cancelled or delivered to the Trustee for cancellation, all amounts due
and owing on such Notes, including any Repurchase Amount, all principal and all Interest due or to
become due to such date of maturity or repurchase or redemption date, as the case may be,
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 by the Company,
and in the case of either clause (a) or (b), no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on the date of such deposit or shall
occur as a result of such deposit and such deposit shall not result in a breach or violation of, or
constitute a default under, any other instrument or agreement to which the Company is a party or by
which it is bound, 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 Notes,
(ii) Articles 3, 7, 9, 10, 11, 12 and 15,
and (iii) rights hereunder of Noteholders to receive payments of principal of and Interest and any
other amounts due and owing on the Notes and the other rights, duties and obligations of
Noteholders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee, and (iv) the rights, obligations and immunities of the Trustee hereunder), and the
Trustee, on written demand of the Company accompanied by an Officers’ Certificate as required by
Section 16.05 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 incurred by the Trustee and to
compensate the



65









 







Trustee for any services thereafter rendered by the Trustee in connection with this Indenture
or the Notes. The Trustee shall hold in trust money deposited with it pursuant to this Article. It
shall apply the deposited money through the Paying Agent and in accordance with this Indenture to
the payment of principal of and Interest on the Notes.



          Section 12.02.   Deposited Monies to Be Held in Trust by Trustee. 




     Subject to Section 12.04, all monies deposited with the Trustee pursuant to
Section 12.01 shall be held in trust for the sole benefit of the Noteholders, and such
monies 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 Notes
for the payment or redemption of which such monies have been deposited with the Trustee of all sums
due and to become due thereon for principal, premium, if any, and Interest.



          Section 12.03.   Paying Agent to Repay Monies Held. 




     Upon the satisfaction and discharge of this Indenture, all monies then held by any paying
agent of the Notes (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.



          Section 12.04.   Return of Unclaimed Monies. 




     Subject to the requirements of applicable law, any monies deposited with or paid to the
Trustee for payment of the principal or Interest on Notes and not applied but remaining unclaimed
by the holders of Notes for two (2) years (or such shorter period of time under applicable escheat
law) after the date upon which the principal of or Interest on such Notes, 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; and the holder of any
of the Notes 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 12.05.   Reinstatement. 




     If the Trustee or the paying agent is unable to apply any money in accordance with Section
12.02 by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 12.01 until such time as the Trustee or the paying agent is permitted to apply
all such money in accordance with Section 12.02; provided that, if the Company makes any
payment of Interest on or principal of any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Notes to receive such payment from
the money held by the Trustee or paying agent.



ARTICLE 13




THE NOTEHOLDERS




          Section 13.01.   Action by Noteholders. 




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     Whenever in this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other action), the fact
that, at the time of taking any such action, the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Noteholders in person or by agent or proxy appointed in writing, or (b) by the record
of the holders of Notes voting in favor thereof at any meeting of Noteholders duly called and held
in accordance with the provisions of Article 14, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Noteholders. Whenever the Company or the
Trustee solicits the taking of any action by the Noteholders, the Company or the Trustee may fix in
advance of such solicitation a date as the record date for determining holders entitled to take
such action. The record date for purpose of determining the identity of Noteholders entitled to
vote or consent to any action shall be not more than fifteen (15) days prior to the date of
commencement of solicitation of such action.



          Section 13.02.   Proof of Execution by Noteholders. 




     Subject to the provisions of Sections 7.01, 7.02 and 14.04, proof of
the execution of any instrument by a Noteholder or its agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the
registry of such Notes or by a certificate of the Registrar.



     The record of any Noteholders’ meeting shall be proved in the manner provided in Section
14.05.



          Section 13.03.   Who Are Deemed Absolute Owners. 




     The Company, the Trustee, any paying agent, any conversion agent, any Collateral Agent and any
Registrar may deem the Person in whose name such Note shall be registered upon the Security
Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note
shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any
Person other than the Company or any Registrar) for the purpose of receiving payment of or on
account of the principal of and Interest on such Note, for conversion of such Note and for all
other purposes; and neither the Company nor the Trustee nor any paying agent, Collateral Agent,
conversion agent nor any Registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being, or upon such holder’s order, shall be valid and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Note.



          Section 13.04.   Company-owned Notes Disregarded. 




     In determining whether the holders of the requisite aggregate principal amount of the Notes
have concurred in any direction, consent, waiver, notice, determination or other action under this
Indenture (including pursuant to Article 6), Notes which are owned by the Company, any Guarantor,
any Chargor or any other obligor on the Notes or any Affiliate of the Company, any Guarantor, any
Chargor or any other obligor on the Notes shall be disregarded and deemed not to be outstanding for
the purpose of any such determination; provided that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent, waiver or other action, only
Notes which a Responsible Officer knows are so owned shall be so disregarded. Notes so owned which
have been pledged in good faith may be regarded as outstanding for the purposes of this Section if
the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such
Notes and that the pledgee is not the Company, any Guarantor,



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any Chargor or any other obligor on the Notes or any Affiliate of the Company, any Guarantor,
any Chargor or any such other obligor. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing
and identifying all Notes, if any, known by the Company to be owned or held by or for the account
of any of the above-described Persons, and, subject to Section 7.01, the Trustee shall be
entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Notes not listed therein are outstanding for the purpose of any such
determination.



          Section 13.05.   Revocation of Consents; Future Holders Bound. 




     At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
13.01, of the taking of any action by the holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture in connection with such action, any holder of a
Note which is shown by the evidence to be included in the Notes the holders of which have consented
to such action may, by filing written notice with the Trustee at its Corporate Trust Office and
upon proof of holding as provided in Section 12.02, revoke such action so far as concerns
such Note. Except as aforesaid, any such action taken by the holder of any Note shall be
conclusive and binding upon such holder and upon all future holders and owners of such Note and of
any Notes issued in exchange or substitution therefor, irrespective of whether any notation in
regard thereto is made upon such Note or any Note issued in exchange or substitution therefor.



ARTICLE 14




MEETINGS OF NOTEHOLDERS




          Section 14.01.   Purpose of Meetings. 




     A meeting of Noteholders may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:




     (a) to give any notice to the Company or to the Trustee or to give any directions to
the Trustee permitted under this Indenture, or to consent to the waiving of any Default or
Event of Default hereunder and its consequences, or to take any other action authorized to
be taken by Noteholders pursuant to any of the provisions of Article 6;




     (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article 7;




     (c) to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 8.02; or




     (d) to take any other action authorized to be taken by or on behalf of the holders of
any specified aggregate principal amount of the Notes under any other provision of this
Indenture or under applicable law.



          Section 14.02.   Call of Meetings by Company or Noteholders. 




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     In case at any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least twenty-five percent (25%) in aggregate principal amount of the Notes then
outstanding, shall have requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee
shall not have mailed the notice of such meeting within twenty (20) days after receipt of such
request, then the Company or such Noteholders may determine the time and the place for such meeting
and may call such meeting to take any action authorized in Section 12.01 by mailing a
notice of meeting. Notice of every meeting of the Noteholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such meeting and the
establishment of any record date pursuant to Section 13.01, shall be mailed to holders of
Notes at their addresses as they shall appear on the Security Register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than twenty (20) nor more than ninety
(90) days prior to the date fixed for the meeting.



     Any meeting of Noteholders shall be valid without notice if the holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the holders of all Notes outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.



          Section 14.03.   Qualifications for Voting. 




     To be entitled to vote at any meeting of Noteholders, a person shall (a) be a holder of one or
more Notes on the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record date pertaining to
such meeting. The only persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the Company and its
counsel.



          Section 14.04.   Regulations. 




     Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Noteholders, in regard to proof of the
holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting as it shall think
fit.



     The Company or the Noteholders calling the meeting, as the case may be, shall, by an
instrument in writing, appoint a temporary chairman of the meeting. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the holders of a majority in
principal amount of the Notes represented at the meeting and entitled to vote at the meeting.



     Subject to the provisions of Section 13.04, at any meeting each Noteholder or
proxyholder shall be entitled to one vote for each $100,000 principal amount of Notes held or
represented by him; provided that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of Notes held by him
or instruments in writing as aforesaid duly designating him as the proxy to vote on behalf of other
Noteholders. Any meeting of Noteholders duly called pursuant to the provisions of Section
14.02 may be adjourned from time to time by the holders of a majority of the aggregate
principal amount of the Notes represented at the meeting, whether or not constituting a majority



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of the aggregate principal amount of the Notes outstanding, the latter of which shall
constitute a quorum, and the meeting may be held as so adjourned without further notice.



          Section 14.05.   Voting. 




     The vote upon any resolution submitted to any meeting of the Noteholders shall be by written
ballot on which shall be subscribed the signatures of the holders of Notes or of their
representatives by proxy and the outstanding principal amount of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of the Noteholders shall be
prepared by the secretary of the meeting, and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 14.02. The record shall show
the principal amount of the Notes voting in favor of or against any resolution. The record shall
be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated.


          Section 14.06.  No Delay of Rights by Meeting.




     Nothing contained in this Article shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of the Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Noteholders under any of the provisions of this
Indenture or of the Notes.



ARTICLE 15




CONVERSION OF NOTES




          Section 15.01.   Right to Convert. 




     (a) Subject to and upon compliance with the provisions of this Indenture, the holder of any
Note shall have the right, at such holder’s option at any time prior to the close of business on
the date of maturity of the Notes, to convert the principal amount of the Note, or any portion of
such principal amount which is in a minimum amount of $100,000 and a multiple of $1,000 in excess
thereof (or if less, the outstanding principal amount of such Note), into fully paid and
non-assessable shares of Common Stock (as such shares shall then be constituted) at the Conversion
Rate in effect at such time, by surrender of the Note so to be converted in whole or in part,
together with any required funds, under the circumstances described in this Section and in the
manner provided in Section 15.02.



     (b) A Note in respect of which a holder is electing to exercise its option to require the
Company to purchase such holder’s Notes upon a Change of Control Offer or Termination of Trading
Offer pursuant to Section 3.02 may be converted only if such holder withdraws its election
in accordance with Section 3.02. A holder of Notes is not entitled to any rights of a
holder of Common Stock until such holder has converted



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his Notes to Common Stock, and only to the extent such Notes are deemed to have been converted
to Common Stock under this Article.



          Section 15.02.   Exercise of Conversion Right; Issuance of Common Stock on Conversion; No
Adjustment for Interest or Dividends. 




     In order to exercise the conversion right with respect to any Note, a Noteholder must deliver
to the Conversion Agent (or the Trustee if no Conversion Agent has been appointed), such Note with
the original or facsimile of the form entitled “Conversion Notice” on the reverse thereof,
duly completed and manually signed, together with such Notes duly endorsed for transfer,
accompanied by the funds, if any, required by this Section. Such notice shall also state the name
or names (with address or addresses) in which the certificate or certificates for shares of Common
Stock which shall be issuable on such conversion shall be issued, and shall be accompanied by
transfer or similar taxes, if required pursuant to Section 15.07. Upon receipt of such
Conversion Notice and the Notes, the Conversion Agent (or the Trustee, as applicable) shall
promptly notify the Company and forward the same to the Company.



     As promptly as practicable after satisfaction of the requirements for conversion set forth
above, subject to compliance with any restrictions on transfer if shares issuable on conversion are
to be issued in a name other than that of the Noteholder (as if such transfer were a transfer of
the Note or Notes (or portion thereof) so converted), the Company shall issue and shall deliver to
such Noteholder at the office or agency maintained by the Company for such purpose pursuant to
Section 4.02 a certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Note or portion thereof as determined by the Company in
accordance with the provisions of this Article and a check or cash in respect of any fractional
interest in respect of a share of Common Stock arising upon such conversion, calculated by the
Company as provided in Section 15.03. In case any Note of a denomination greater than
$100,000 shall be surrendered for partial conversion, and subject to Section 2.03, the
Company shall execute and the Trustee shall upon receipt of an Authentication Order authenticate
and deliver to the holder of the Note so surrendered, without charge to such holder, a new Note or
Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Note.



     Each conversion shall be deemed to have been effected as to any such Note (or portion thereof)
on the date (the “Conversion Date”) on which the requirements set forth above in this
Section have been satisfied as to such Note (or portion thereof), and the Person whose name is
entered in the Company’s register of members for Common Stock upon such conversion shall be deemed
to have become on said date the holder of record of the shares set out against his name in such
register; provided that any surrender on any date when the stock transfer books of the Company
shall be closed shall constitute such Person the record holder for all purposes at such time as his
name is entered on the register after the books are open again, but such conversion shall be at the
Conversion Rate in effect on the date upon which such Note shall be surrendered.



     Any Note or portion thereof surrendered for conversion during the period from the close of
business on the record date for any Interest Payment Date to the close of business on the Business
Day preceding such Interest Payment Date shall be accompanied by payment, in immediately available
funds or other funds acceptable to the Company, of an amount equal to the Interest otherwise
payable on such Interest Payment Date on the principal amount being converted; provided that no
such payment need be made (1) if the Company has specified a Purchase Date that is after a record
date and on or prior to the next Interest Payment Date or (2) to the extent of any overdue
Interest, if any overdue Interest exists at the time of conversion with respect to such Note.
Except as provided above in this Section, no payment or other



71









 







adjustment shall be made for Interest accrued on any Note converted or for dividends on any
shares issued upon the conversion of such Note as provided in this Article.



     The Company shall notify the Trustee in writing of any conversions of Notes effected through
any conversion agent other than the Trustee.



     Upon the conversion of a Note, that portion of the accrued but unpaid Interest, to the
Conversion Date, with respect to the converted Note shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the holder thereof through delivery of
the Common Stock (together with the cash payment, if any in lieu of fractional shares) in exchange
for the Note being converted pursuant to the provisions hereof.



          Section 15.03.   Cash Payments in Lieu of Fractional Shares. 




     No fractional shares of Common Stock or scrip certificates representing fractional shares
shall be issued upon conversion of Notes. If more than one Note shall be surrendered for
conversion at one time by the same holder, the number of full shares that shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount of the Notes (or
specified portions thereof to the extent permitted hereby) so surrendered. If any fractional share
of stock would be issuable upon the conversion of any Note or Notes, the Company shall make an
adjustment and payment therefor in cash at the Current Market Price on the last Trading Day
immediately preceding the Conversion Date thereof to the holder of Notes.



          Section 15.04.   Conversion Rate. 




     Each $100,000 principal amount of the Notes shall be initially convertible into 17,699 shares
of Common Stock (herein called the “Conversion Rate”), as specified in the form of Note
attached as Exhibit A hereto, subject to adjustment as provided in this Article. Each of
the Second Tranche Notes shall initially be convertible at the Conversion Rate applicable to the
other outstanding Notes at the time such Second Tranche Notes are issued.



          Section 15.05.   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 hereafter pay a dividend or make a distribution to all
holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall
be increased so that the same shall equal the rate determined by multiplying the Conversion
Rate in effect at the opening of business on the date following the Record Date (as defined
in Section 15.05(j)(ii)) for such dividend or other distribution by a fraction,




     (i) the numerator of which shall be the sum of the number of shares of Common
Stock outstanding at the close of business on the Record Date for such dividend or
other distribution plus the total number of shares of Common Stock constituting such
dividend or other distribution; and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date,



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such increase to become effective immediately after the opening of business on the day
following the Record Date. For the purpose of this paragraph (a), the number of shares of
Common Stock at any time outstanding shall not include shares held in the treasury of the
Company. The Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company. If any dividend or distribution of the
type described in this Section 15.05(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared.




     (b) In case the Company shall issue rights or warrants to all holders of its
outstanding shares of Common Stock entitling them (for a period expiring within forty-five
(45) days after the Record Date for such rights or warrants) to subscribe for or purchase
shares of Common Stock at a price per share less than the Current Market Price immediately
preceding the date such distribution is first publicly announced by the Company, the
Conversion Rate shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the Record Date for such
rights or warrants by a fraction,




     (i) the numerator of which shall be the number of shares of Common Stock
outstanding on the Record Date for such rights or warrants plus the total number of
additional shares of Common Stock offered for subscription or purchase, and




     (ii) the denominator of which shall be the sum of the number of shares of
Common Stock outstanding at the close of business on the Record Date for such rights
or warrants plus the number of shares that the aggregate offering price of the total
number of shares so offered would purchase at a price equal to the Current Market
Price immediately preceding the date such distribution is first publicly announced
by the Company,




such adjustment shall be successively made whenever any such rights or warrants are issued,
and shall become effective immediately after the opening of business on the day following
the Record Date for such rights or warrants. To the extent that shares of Common Stock are
not delivered after the expiration 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 delivery of only the
number of shares of Common Stock actually delivered. If such rights or warrants are not so
issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such date fixed for the determination of shareholders entitled to
receive such rights or warrants had not been fixed. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common Stock at a price
less than the Current Market Price immediately preceding the date such distribution is first
publicly announced by the Company, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration received by the
Company for such rights or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board
of Directors.




     (c) In case outstanding shares of Common Stock shall be subdivided into a greater
number of shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of Common Stock shall
be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect
at the



73









 







opening of business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the case may be,
to become effective immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.




     (d) In case the Company shall, by dividend or otherwise, distribute to all holders of
Common Stock shares of any class of capital stock of the Company or evidences of its
indebtedness or assets (including securities, but excluding any rights or warrants referred
to in Section 15.05(b), and excluding any dividend or distribution (x) paid
exclusively in cash or (y) referred to in Section 15.05(a)) (any of the foregoing
hereinafter in this Section 15.05(d) called the “Securities”)), then, in
each such case (unless the Company elects to reserve such Securities for distribution to the
Noteholders upon the conversion of the Notes so that any such holder converting Notes will
receive upon such conversion, in addition to the shares of Common Stock to which such holder
is entitled, the amount and kind of such Securities which such holder would have received if
such holder had converted its Notes into Common Stock immediately prior to the Record Date
for such distribution of the Securities) the Conversion Rate shall be increased so that the
same shall be equal to the rate determined by multiplying the Conversion Rate in effect on
the Record Date with respect to such distribution by a fraction,




     (i) the numerator of which shall be the Current Market Price on such Record
Date; and




     (ii) the denominator of which shall be the Current Market Price on such Record
Date less the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a resolution of the Board of
Directors) on the Record Date of the portion of the Securities so distributed
applicable to one share of Common Stock,




such adjustment to become effective immediately prior to the opening of business on the day
following such Record Date; provided that, if the then fair market value (as so determined)
of the portion of the Securities so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon conversion the amount of Securities such holder would have
received had such holder converted each Note on the Record Date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such dividend or distribution had not been
declared. If the Board of Directors determines the fair market value of any distribution
for purposes of this Section 15.05(d) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market
over the same period used in computing the Current Market Price on the applicable Record
Date. Notwithstanding the foregoing, if the Securities distributed by the Company to all
holders of its Common Stock consist of capital stock of, or similar equity interests in, a
Subsidiary or other business unit, the Conversion Rate shall be increased so that the same
shall be equal to the rate determined by multiplying the Conversion Rate in effect on the
Record Date with respect to such distribution by a fraction,




     (i) the numerator of which shall be the sum of (A) the Current Market Price on
and including the fifth Trading Day after the Ex-Dividend Time plus (B) the fair
market



74









 







value of the securities distributed in respect of each share of Common Stock
for which this Section 15.05(d) applies, which shall equal the number of
Securities distributed in respect of each share of Common Stock multiplied by the
average of the closing sale prices of those Securities distributed (where such
closing sale prices are available) for the ten (10) Trading Days commencing on and
including the tenth Trading Day after the Ex-Dividend Time; and




     (ii) the denominator of which shall be the average of the Current Market Price
on and including the fifth Trading Day after the Ex-Dividend Time,




such adjustment to become effective immediately prior to the opening of business on the day
following such Record Date; provided that the Company may in lieu of the foregoing
adjustment make adequate provision so that each Noteholder shall have the right to receive
upon conversion the amount of Securities such holder would have received had such holder
converted each Note on the Record Date with respect to such distribution.




     Rights or warrants distributed by the Company to 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 Common Stock, shall be deemed not to have been
distributed for purposes of this Section (and no adjustment to the Conversion Rate under
this Section 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
15.05(d). If any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon the occurrence
of which such rights or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with respect to
new rights or warrants with such rights (and a termination or expiration of the existing
rights or warrants without exercise by any of the holders thereof). In addition, 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 was made, (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 warrants 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.




     No adjustment of the Conversion Rate shall be made pursuant to this Section
15.05(d) in respect of rights or warrants distributed or deemed distributed on any
Trigger Event to the extent



75









 







that such rights or warrants are actually distributed, or reserved by the Company for
distribution to holders of Notes upon conversion by such holders of Notes to Common Stock.




     For purposes of this Section 15.05(d) and Sections 15.05(a) and
15.05(b), any dividend or distribution to which this Section 15.05(d) is
applicable that also includes shares of Common Stock, or rights or warrants to subscribe for
or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend
or distribution of the evidences of indebtedness, assets or shares of capital stock other
than such shares of Common Stock or rights or warrants (and any Conversion Rate adjustment
required by this Section 15.05(d) with respect to such dividend or distribution
shall then be made) immediately followed by (2) a dividend or distribution of such shares of
Common Stock or such rights or warrants (and any further Conversion Rate adjustment required
by Sections 15.05(a) and 15.05(b) with respect to such dividend or
distribution shall then be made), except (A) the Record Date of such dividend or
distribution shall be substituted as “the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution”, “the date fixed for the
determination of shareholders entitled to receive such rights or warrants” and “the date
fixed for such determination” within the meaning of Sections 15.05(a) and
15.05(b) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding at the close of business on the date fixed for
such determination” within the meaning of Section 15.05(a).




     (e) In case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock cash (excluding any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or involuntary),
then, in such case, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior to the close
of business on such Record Date by a fraction,




     (i) the numerator of which shall be the Current Market Price on such Record
Date; and




     (ii) the denominator of which shall be the Current Market Price on such Record
Date less the amount of cash so distributed applicable to one share of Common Stock,




such adjustment to be effective immediately prior to the opening of business on the day
following the Record Date; provided that if the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the Current Market Price
on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Noteholder shall have the right to receive upon conversion the amount of cash such
holder would have received had such holder converted each Note on the Record Date. If such
dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or distribution had
not been declared.




     (f) In case a tender or exchange offer made by the Company or any Subsidiary for all or
any portion of the Common Stock shall expire and such tender or exchange offer (as amended
upon the expiration thereof) shall require the payment to shareholders of consideration per
share of Common Stock having a fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the Board of



76









 







Directors) that as of the last time (the “Expiration Time”) tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be amended)
exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding
the Expiration Time, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior to the
Expiration Time by a fraction,




     (i) the numerator of which shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to shareholders
based on the acceptance (up to any maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered or exchanged and not withdrawn as of
the Expiration Time (the shares deemed so accepted up to any such maximum, being
referred to as the “Purchased Shares”) and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time
multiplied by the Closing Sale Price of a share of Common Stock on the Trading Day
next succeeding the Expiration Time,




such adjustment to become effective immediately prior to the opening of business on the day
following the Expiration Time. If the Company is obligated to purchase shares pursuant to
any such tender or exchange offer, but the Company is permanently prevented by applicable
law from effecting any such purchases or all such purchases are rescinded, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made.




     (g) On each March 31, June 30, September 30 and December 31 of each year, commencing on
June 30, 2010, the Conversion Rate shall be adjusted to equal the quotient obtained by
dividing (i) $100,000 by (ii) the Trading Reference VWAP (20 Day Backward Looking); provided
that no such adjustment shall be made if the number of shares issuable upon conversion of
the Notes at such adjusted Conversion Rate would be lower than the number of shares issuable
at then existing Conversion Rate (after giving effect to prior adjustments permitted
pursuant to this clause).




     (h) If at any time after the First Tranche Issue Date the Company shall issue or sell
its Common Stock or any securities exercisable or convertible into shares of Common Stock,
at a price per share or exercise or conversion price less than the Current Market Price then
in effect (and in the case of subclauses (ii) or (iii) below, issue or sell Common Stock or
any other securities exercisable or convertible into shares of Common Stock, whose purchase
price or exercise or conversion price is less than the Current Market Price then in effect),
the Conversion Rate shall be increased such that the Conversion Price is equal to the lowest
purchase price or exercise or conversion price at which the Company has issued or sold its
Common Stock or any securities exercisable or convertible into shares of Common Stock after
the First Tranche Issue Date such adjustment to take effect as of the date of the issuance
or sale of such Common Stock or securities; provided, however, that no adjustment shall be
made to the Conversion Price for (i) the issuance of Common Stock pursuant to the conversion
or exercise of convertible or exercisable securities issued or outstanding on or prior to
the First Tranche Issue Date or the Notes, (ii) the issuance of



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Common Stock or any other securities exercisable or convertible into shares of Common
Stock pursuant to exercise of stock options granted or reserved under the Company’s employee
stock options existing on the First Tranche Issue Date or adopted thereafter in the ordinary
course of business, or (iii) the issuance, after the First Tranche Issue Date, of Common
Stock or any other securities exercisable or convertible into shares of Common Stock issued
or granted to third-party consultants or employees of the Company and its Subsidiaries under
the Company’s employee stock options plan or pursuant to written contractual arrangements
relating to the compensation for the services rendered to the Company or its Subsidiaries by
such consultants or employees, to the extent that all such shares or securities issued under
subclauses (ii) or (iii) in this paragraph, in the aggregate, on a cumulative basis and
without double counting, do not exceed five percent (5%) of the Common Stock of the Company
issued and outstanding immediately prior to such issuance.




     (i) The Conversion Rate shall be adjusted to the quotient obtained by dividing (i)
$100,000, by (ii) the Trading Reference VWAP (20 Day Forward Looking) as of each of the
following dates: (a) the date the Company releases its earnings results for fiscal year
2008, (b) the date the Company releases its earnings results for the second Fiscal Quarter
2009, and (c) the date the Company releases its earnings results for fiscal year 2009;
provided, that in the event the Company releases or otherwise makes public any preliminary
earnings estimates or any other material financial information with respect to the relevant
periods (whether by filing Form 6-K or otherwise), and the Trading Reference VWAP (20 Day
Forward Looking) as of the date of such release or publication is lower than the otherwise
applicable Trading Reference VWAP (20 Day Forward Looking), the Conversion Rate shall be
adjusted to the quotient obtained by dividing (A) $100,000, by (B) Trading Reference VWAP
(20 Day Forward Looking) as of the date of such release or publication; provided further,
that no such adjustment shall be made if the number of shares issuable upon conversion of
the Notes at such adjusted Conversion Rate would be lower than the number of shares issuable
at then existing Conversion Rate (after giving effect to prior adjustments permitted
pursuant to this clause).




     (j) For purposes of this Section 15.05, the following terms shall have the
meaning indicated:




     (i) “Current Market Price” shall mean the average of the daily Closing
Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days
ending on the earlier of the Trading Day immediately preceding the relevant date and
the day before the “ex” date with respect to the closing of the issuance,
distribution, subdivision or combination requiring such computation. For purpose of
this paragraph, the term “ex” date, (1) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades, regular way, on
the relevant exchange or in the relevant market from which the Closing Sale Price
was obtained without the right to receive such issuance or distribution, and (2)
when used with respect to any subdivision or combination of shares of Common Stock,
means the first date on which the Common Stock trades, regular way, on such exchange
or in such market after the time at which such subdivision or combination becomes
effective.




     If another issuance, distribution, subdivision or combination to which
Section 15.05 applies occurs during the period applicable for calculating
“Current Market Price” pursuant to the definition in the preceding paragraph,
“Current Market Price” shall be calculated for such period in a manner determined by
the Board of Directors to reflect the



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impact of such issuance, distribution, subdivision or combination on the
Closing Sale Price of the Common Stock during such period.




     (ii) “Record Date” shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock have
the right to receive any cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for determination
of shareholders entitled to receive such cash, securities or other property (whether
such date is fixed by the Board of Directors or by statute, contract or otherwise).




     (k) The Company may make such increases in the Conversion Rate, in addition to those
required by Section 15.05(a) through (i) as the Board of Directors considers
to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.




     To the extent permitted by applicable law, the New York Stock Exchange rules or any
other exchange on which the Common Stock of the Company is traded, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if the period is
at least twenty (20) Business Days, the increase is irrevocable during the period and the
Board of Directors shall have made a determination that such increase would be in the best
interests of the Company, which determination shall be conclusive. Whenever the Conversion
Rate is increased pursuant to the preceding sentence, the Company shall mail to holders of
record of the Notes a notice of the increase at least fifteen (15) days prior to the date
the increased Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.




     (l) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in such rate; provided that any
adjustments that by reason of this Section 15.05(l) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. All
calculations under this Article shall be made by the Company and shall be made to the
nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be.
Except as set forth in Section 15.05(h), no adjustment need be made for rights to
purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest
or for any issuance of Common Stock or convertible or exchangeable securities or rights to
purchase Common Stock or convertible or exchangeable securities. To the extent the Notes
become convertible into cash, assets, property or securities (other than capital stock of
the Company), no adjustment need be made thereafter as to the cash, assets, property or such
securities. Interest will not accrue on any cash into which the Notes are convertible.




     (m) Whenever the Conversion Rate is adjusted as herein provided, 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 Responsible
Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not
be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the
last Conversion Rate



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of which it has 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 becomes
effective and shall mail such notice of such adjustment of the Conversion Rate to the holder
of each Note at his last address appearing on the Security Register provided for in
Section 4.02 of this Indenture, within twenty (20) days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of any such
adjustment.




     (n) In any case in which this Section provides that an adjustment shall become
effective immediately after (1) a record date or Record Date for an event, (2) the date
fixed for the determination of shareholders entitled to receive a dividend or distribution
pursuant to Section 15.05(a), (3) a date fixed for the determination of shareholders
entitled to receive rights or warrants pursuant to Section 15.05(b), or (4) the
Expiration Time for any tender or exchange offer pursuant to Section 15.05(f), (each
a “Determination Date”), the Company may elect to defer until the occurrence of the
applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note
converted after such Determination Date and before the occurrence of such Adjustment Event,
the additional shares of Common Stock or other securities issuable upon such conversion by
reason of the adjustment required by such Adjustment Event over and above the Common Stock
issuable upon such conversion before giving effect to such adjustment and (y) paying to such
holder any amount in cash in lieu of any fraction pursuant to Section 15.03. For
purposes of this Section 15.05(n), the term “Adjustment Event” shall mean:




     (i) in any case referred to in clause (1) hereof, the occurrence of such event,




     (ii) in any case referred to in clause (2) hereof, the date any such dividend
or distribution is paid or made,




     (iii) in any case referred to in clause (3) hereof, the date of expiration of
such rights or warrants, and




     (iv) in any case referred to in clause (4) hereof, the date a sale or exchange
of Common Stock pursuant to such tender or exchange offer is consummated and becomes
irrevocable.




     (o) For purposes of this Section, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include
            shares 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 shares of
Common Stock held in the treasury of the Company.



          Section 15.06.   Effect of Reclassification, Consolidation, Merger or Sale. 




     If any of the following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than (x) a subdivision or combination to which
Section 15.05(c) applies) as a result of which holders of Common Stock shall be entitled to
receive stock, other securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock, (ii) any consolidation, merger or combination of the Company with
another Person as a result of which holders of Common Stock shall be entitled to receive stock,
other securities or other property or assets (including



80









 







cash) with respect to or in exchange for such Common Stock, or (iii) any sale or conveyance of
all or substantially all of the properties and assets of the Company to any other Person as a
result of which holders of Common Stock shall be entitled to receive stock, other securities or
other property or assets (including cash) with respect to or in exchange for such Common Stock,
then the Company or the successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (in form satisfactory to the Trustee) providing that each Note
shall be convertible into the kind and amount of shares of stock, other securities or other
property or assets (including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance by a holder of a number of shares of Common Stock issuable
upon conversion of such Notes (assuming, for such purposes, a sufficient number of authorized
shares of Common Stock are available to convert all such Notes) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance assuming such
holder of Common Stock did not exercise such holder’s rights of election, if any, as to the kind
or amount of stock, other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or conveyance (provided
that, if the kind or amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which such rights of
election shall not have been exercised (“Non-electing share”), then for the purposes of
this Section the kind and amount of stock, other securities or other property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger, combination, sale or
conveyance for each Non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-electing shares). Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article.



     The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each holder of Notes, at its address appearing on the Security Register provided for in Section
4.02 of this Indenture, within twenty (20) days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental indenture.



     The above provisions of this Section shall similarly apply to successive reclassifications,
changes, consolidations, mergers, combinations, sales and conveyances.



     If this Section applies to any event or occurrence,
Section 15.05 shall not apply.


          Section 15.07.  Taxes on Shares Issued.



     The issue of stock certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any documentary, stamp or similar issue or transfer tax in respect of the
issue thereof. The Company shall not, however, be required to pay any such tax which may be
payable in respect of any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Note converted, and the Company shall not be required to issue or
deliver any such stock 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.



          Section 15.08.   Reservation of Shares; Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock. 




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     The Company shall provide, free from preemptive rights, out of its authorized but unissued
shares or shares held in treasury, sufficient shares of Common Stock to provide for the conversion
of the Notes from time to time as such Notes are presented for conversion.



     Before taking any action which 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 Notes, 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 Rate.



     The Company covenants that all shares of Common Stock which may be issued upon conversion of
Notes will upon issue be fully paid and non-assessable by the Company and free from all taxes,
liens and charges with respect to the issue thereof.



     The Company covenants that, if any shares of Common Stock to be provided for the purpose of
conversion of Notes hereunder require registration with or approval of any governmental authority
under any federal or state law or the laws of any other applicable jurisdiction 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 Commission (or any
successor thereto), endeavor to secure such registration or approval, as the case may be.



          Section 15.09.   Responsibility of the Conversion Agent. 




     The Conversion Agent shall not at any time be under any duty or responsibility to any
Noteholder 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 Conversion Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, which may at any time be issued or delivered upon the
conversion of any Note; and the Conversion Agent makes no representations with respect thereto.
The Conversion Agent shall not be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article. Without limiting the
generality of the foregoing, the Conversion Agent shall not be under any responsibility to
determine the correctness of any provisions contained in any supplemental indenture entered into
pursuant to Section 15.06 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Noteholders upon the conversion of their
Notes after any event referred to in such Section 15.06 or to any adjustment to be made
with respect thereto, but, subject to the provisions of Section 7.01, 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 15.10.   Notice to Holders Prior to Certain Actions. 




     In case:



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     (a) the Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Rate pursuant to Section
15.05; or




     (b) the Company shall authorize the granting to the holders of all or substantially all
of its Common Stock of rights or warrants to subscribe for or purchase any share of any
class or any other rights or warrants; or




     (c) of any reclassification or reorganization of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a change in par value,
or from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval of any
shareholders of the Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or




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


the Company shall cause to be filed with the Trustee and to be sent to each Noteholder at such
holder’s address appearing on the Security Register provided for in Section 4.02 of this
Indenture, as promptly as possible but in any event at least ten (10) 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, distribution or rights or warrants, 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,
consolidation, merger, sale, transfer, dissolution, liquidation 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 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 15.11.   Shareholder Rights Plans. 




     Each share of Common Stock issued upon conversion of Notes pursuant to this Article shall be
entitled to receive the appropriate number of rights, if any, and the certificates representing the
Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be
provided by the terms of any shareholder rights plan adopted by the Company, as the same may be
amended from time to time. If at the time of conversion, however, the rights have separated from
the shares of Common Stock in accordance with the provisions of the applicable shareholder rights
agreement so that the holders of the Notes would not be entitled to receive any rights in respect
of Common Stock issuable upon conversion of the Notes, the conversion rate will be adjusted in
accordance with Section 15.05(d) treating all rights previously issued as Securities for
purposes of such adjustment, subject to readjustment in the event of the expiration, termination or
redemption of the rights.



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ARTICLE 16




MISCELLANEOUS PROVISIONS




          Section 16.01.   Provisions Binding on Company’s Successors. 




     All the covenants, stipulations, promises and agreements by the Company contained in this
Indenture shall bind its successors and assigns whether so expressed or not.



          Section 16.02.   Official Acts by Successor Corporation. 




     Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any Person that shall at the
time be the lawful sole successor of the Company.



          Section 16.03.   Addresses for Notices, Etc. 




     Any notice or demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Notes on the Company shall be deemed to have
been sufficiently given or made, for all purposes, if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box or sent by telecopier
transmission addressed as follows:


If to the Company:



Yingli Green Energy Holding Company Limited

No. 3055 Middle Fuxing Road

Baoding 070151

People’s Republic of China

Attention: Chief Financial Officer

Facsimile No.: (+86) 312 892 9800,



and with a copy to



Simpson Thacher & Bartlett LLP

ICBC Tower, 35th Floor

3 Garden Road,

Central Hong Kong

Attention: Mr. Leiming Chen

Facsimile No.: (+852) 2869-7694



If to the Trustee:




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DB Trustees (Hong Kong) Limited

48th Floor, Cheung Kong Center

2 Queen’s Road Central

Hong Kong



Attention: The Managing Director

Facsimile: (+852) 2203 7320

                   (+852) 2203 7323


If to the Agents:


Deutsche Bank AG, Hong Kong Branch

48th Floor, Cheung Kong Center

2 Queen’s Road Central

Hong Kong



Attention: The Managing Director

Facsimile: (+852) 2203 7320

                  (+852) 2203 7323




     The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.



     Any notice or communication mailed to a Noteholder shall be mailed to such holder by
first-class mail, postage prepaid, at his address as it appears on the Security Register and shall
be sufficiently given to such holder if so mailed within the time prescribed. Any notice or
communication to a Noteholder shall be mailed by first class mail, certified or registered, return
receipt requested, or by overnight air courier guaranteeing next-day delivery to its address shown
on the Security Register. Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders.



     Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.



          Section 16.04.   Governing Law, Consent to Jurisdiction and Service of Process. 




     THIS INDENTURE, THE GUARANTEE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.



     The Company, the Guarantors and the Chargor irrevocably consent to the jurisdiction of the
courts of the State of New York and the courts of the United States of America located in the
Borough of Manhattan, City and State of New York over any suit, action or proceeding with respect
to this Indenture or the transactions contemplated hereby. The Company, the Guarantors and the
Chargor waive any objection that they may have to the venue of any suit, action or proceeding with
respect to this Indenture or the transactions contemplated hereby in the courts of the State of New
York or the courts of the United States of America, in each case, located in the Borough of
Manhattan, City and State of New York, or that such suit,



85








 







action or proceeding brought in the courts of the State of New York or the United States of
America, in each case, located in the Borough of Manhattan, City and State of New York was brought
in an inconvenient court and agrees not to plead or claim the same.



          To the extent that the Company, any Guarantor or any Operating Subsidiary has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from
jurisdiction of any court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of its property, the Company, each
Guarantor and the Chargor hereby irrevocably waives and agrees not to plead or claim such immunity
in respect of its obligations under this Indenture or the Notes.




     The Company, the Guarantors and the Chargor irrevocably appoint Law Debenture Corporate
Services Inc. acting through its office at 400 Madison Avenue, 4th Floor, New York, NY 10017,
U.S.A. (or its successors as agent for service of process) as its authorized agent (the
“Authorized Agent”) in the Borough of Manhattan in the city of New York upon which process
may be served in any law suit or proceeding, and agree that service of process upon such agent, and
written notice of said service to the Company, the Guarantors and the Chargor, as the case may be,
by the person serving the same to the address provided for the Company in Section 16.03,
shall be deemed in every respect effective service of process upon the Company, the Guarantors and
the Chargor, as the case may be, in any such suit or proceeding in any such action arising out of
or based on this Indenture. The Company, the Guarantors and the Chargor, as the case may be, shall
give notice to the Trustee of the appointment of a successor Authorized Agent. If for any reason
Law Debenture Corporate Services Inc. ceases to be able to act as the Authorized Agent of the
Company, the Guarantors or the Chargor, or ceases to have an address in the Borough of Manhattan,
the city of New York, the Company, the Chargor and the Guarantors will appoint a successor
Authorized Agent in accordance with the preceding sentence. Should the Company, any Guarantor or
any Chargor fail to appoint and/or maintain an agent for service of process, the Trustee shall be
entitled to appoint one for Company, the Chargor and the Guarantors (as the case may be), at the
Company’s or such Guarantor’s or Chargor’s cost.



          Section 16.05.   Evidence of Compliance with Conditions Precedent; Certificates to
Trustee. 




     Upon any application or demand by the Company to the Trustee to take any action under any of
the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, all such conditions precedent have been complied with.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is based; (3) a
statement that, in the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.



          Section 16.06.   Legal Holidays. 




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     In any case in which the date of maturity of Interest on or principal of the Notes or the
redemption date of any Note will not be a Business Day, then payment of such Interest on or
principal of the Notes need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity or the redemption
date, and no Interest shall accrue for the period from and after such date.



          Section 16.07.   Company Responsible for Making Calculations.




     The Company will be responsible for making all calculations required under the Notes. The
Company will make these calculations in good faith and absent manifest error, these calculations
will be final and binding on the Noteholders. Promptly after the calculation thereof, the Company
will provide to each of the Trustee and any other conversion agent and Officers’ Certificate
setting forth a schedule of its calculations, and each of the Trustee and any other conversion
agent is entitled to conclusively rely upon the accuracy of such calculations without independent
verification. The Trustee will forward the Company’s calculations to any holder upon the written
request of such holder.



          Section 16.08.   Benefits of Indenture. 




     Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto, any paying agent, any authenticating agent, any conversion agent, any
Collateral Agent, any Registrar and their successors hereunder and the holders of Notes any benefit
or any legal or equitable right, remedy or claim under this Indenture.



          Section 16.09.   Table of Contents, Headings, Etc. 




     The table of contents and the titles and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.



          Section 16.10.   Authenticating Agent. 




     The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf,
and subject to its direction, in the authentication and delivery of Notes in connection with the
original issuance thereof and transfers and exchanges of Notes hereunder, including under
Sections 2.04, 2.05, 2.06, 2.07, 3.02, and 15.02,
as fully to all intents and purposes as though the authenticating agent had been expressly
authorized by this Indenture and those Sections to authenticate and deliver Notes. For all
purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent
shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate
of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to
satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication.
Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder
pursuant to Section 7.07.



     Any corporation into which any authenticating agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any authenticating agent shall be a party, or any corporation succeeding to the corporate
trust business of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.



87









 





     Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee shall either
promptly appoint a successor authenticating agent or itself assume the duties and obligations of
the former authenticating agent under this Indenture and, upon such appointment of a successor
authenticating agent, if made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of a successor
authenticating agent to all holders of Notes as the names and addresses of such holders appear on
the Security Register.



     The Company agrees to pay to the authenticating agent from time to time such compensation for
its services as shall be agreed upon in writing between the Company and the authenticating agent.



     The provisions of Sections 7.02, 7.03, 7.04 and 13.03 and this
Section shall be applicable to any authenticating agent.



          Section 16.11.   Indenture and Notes Solely Corporate Obligations. 




     No recourse for the payment of the principal of, premium, if any, or Interest on any Note, or
for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture
or in any Note, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, shareholder, employee, agent, officer, director or subsidiary, as such,
past, present or future, of the Company or of any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.



          Section 16.12.   Execution in Counterparts. 




     This Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument.



          Section 16.13.   Severability. 




     In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



          Section 16.14.   Appointment of Co-Trustee. 





     (a) Notwithstanding any other provisions of this Indenture, following the occurrence
of, and during the continuation of, an Event of Default, hereunder, if the Trustee
reasonably believes that such action is either (i) required by law, rule or regulation of
the jurisdiction of incorporation of the Company or the jurisdiction in which the Company’s
principal place of business is located or (ii) is otherwise in the best interests of the
Noteholders, the Trustee shall have the power and may execute and deliver all instruments
necessary to appoint one or more Persons to



88









 







act as a co-trustee or co-trustees hereunder, or separate trustee or separate trustees
hereunder, in each case exclusively in such jurisdiction or jurisdictions, and to vest in
such Person or Persons, in such capacity and for the benefit of the holders, such title
hereunder, or any part hereof, in each case exclusively in such jurisdiction or
jurisdictions, and subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts in such jurisdiction or jurisdictions as the Trustee may
reasonably consider necessary or desirable. Each co-trustee and separate trustee hereunder
shall be authorized under applicable law to act as a co-trustee or a separate trustee, as
the case may be, and shall each have a combined capital and surplus (computed in accordance
with Section 3l0(a)(2) of the Trust Indenture Act) of at least $25,000,000. If at any time
a co-trustee or a separate trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect
specified in this Section.




     (b) Every separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:




     (i) all rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act (i) outside the jurisdiction
or jurisdictions set forth in Section 16.14(a) or (ii) separately without
the Trustee joining in such act), except to the extent that under any law of any
such jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations shall be exercised and performed
singly by such separate trustee or co-trustee, but solely in such jurisdiction or
jurisdictions and solely at the direction of the Trustee;




     (ii) no trustee hereunder shall be personally liable by reason of any act or
omission of any other trustee hereunder; and




     (iii) the Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee, and the Trustee shall, following the waiver or cure
of the Event of Default pursuant to the terms hereof remove any separate trustee or
co-trustee appointed pursuant to Section 16.14(a) in connection with such
Event of Default.




     (c) Any notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively as if given
to each of them. Every instrument appointing any separate trustee or co-trustee shall refer
to this Indenture and the conditions of this Section 16.14. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall, subject to the
provisions of this Section 16.14, be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this Indenture specifically including
every provision of this Indenture relating to the conduct of, affecting the liability of, or
affording protection or rights (including the rights to compensation, reimbursement and
indemnification hereunder) to the Trustee. Every such instrument shall be filed with the
Trustee.




     (d) Any separate trustee or co-trustee appointed pursuant to Section 16.14(a)
may at any time constitute the Trustee, in the jurisdiction or jurisdictions set forth in
Section 16.14(a), its agent or attorney-in-fact in such jurisdiction or
jurisdictions with full power and authority, to the



89









 







extent not prohibited by law in such jurisdiction or jurisdictions, to do any lawful
act under or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee to the extent permitted by law, without the appointment of a new or successor
trustee.



[Signature page(s) to follow.]




90









 






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



	 	 	 	 	 
	 	YINGLI GREEN ENERGY HOLDING COMPANY LIMITED

 	 
	 	By:  	/s/ Zongwei Li
 	 
	 	 	Name:  	Zongwei Li 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




 









 





	 	 	 	 	 
	 	 	FOR THE PURPOSE OF
SECTION 4.11 AND ARTICLES 
IX, X, XI, XVI AND XVII

	 
	 	 	 	 
	 	 	GUARANTORS:

	 
	 	 	 	 
	 	 	YINGLI POWER HOLDING COMPANY LTD.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Liansheng Miao
	 

	 	 	 	Name: Liansheng Miao
	 

	 	 	 	Title: Authorized Signatory
	 
	 	 	 	 
	 	 	/s/ Liansheng Miao
	 	 	Mr. Liansheng Miao, an individual
	 
	 	 	 	 
	 	 	CHARGOR:

	 
	 	 	 	 
	 	 	YINGLI POWER HOLDING COMPANY LTD.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Liansheng Miao
	 

	 	 	 	Name: Liansheng Miao
	 

	 	 	 	Title: Authorized Signatory






 









 






	 	 	 	 	 
	 	 	DB TRUSTEES, (HONG KONG) LIMITED

as Trustee
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Aric Kay Russell & Chui Kin Wing Edward
	 

	 	 	 	Name: Aric Kay Russell & Chui Kin Wing Edward
	 

	 	 	 	Title: Director / Authorized Signatory









 









 








EXHIBIT A




[FORM OF FACE OF NOTE]




     THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR
OTHER SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THIS SECURITY UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS; (B) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT OR (C) AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT; PROVIDED,
HOWEVER, THAT IN EACH CASE, THIS SECURITY MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO ANY
U.S. PERSON (AS DEFINED IN REGULATION S) WITHIN 40 DAYS FOLLOWING THE DATE OF THIS SECURITY.



     THE HOLDER OF THIS SECURITY AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE I(A) OR (II) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.



A-1









 





YINGLI GREEN ENERGY HOLDING COMPANY LIMITED




10.0% GUARANTEED SENIOR SECURED CONVERTIBLE NOTES DUE 2012




No. 1 $                    




     YINGLI GREEN ENERGY HOLDING COMPANY LIMITED, a company duly organized and validly existing
under the laws of the Cayman Islands (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                     , at the office or agency of the Company maintained for
that purpose in accordance with the terms of the Indenture, in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the payment of public and
private debts, (i) the Repurchase Amount as and when required pursuant to the Indenture, (ii)
interest, quarterly on January 25, April 25, July 25 and October 25 of each year, commencing April
25, 2009 on the outstanding principal sum of the Note at said office or agency, in like coin or
currency, at the rate per annum of 10.0%, from and including ___, 2009 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for to, but excluding the
following Interest Payment Date and (iii) any Default Interest payable pursuant to Section 4.01 of
the Indenture or otherwise, and (iv) interest on overdue principal and (to the extent that payment
of such interest is enforceable under applicable law) interest at the rate borne by the Notes, if
any, at the rate of 5% per annum.



     Except as otherwise provided in the Indenture, the interest payable on the Note pursuant to
the Indenture on any January 25, April 25, July 25 and October 25 will be paid to the Person
entitled thereto as it appears in the Security Register at the close of business on the record
date, which shall be the January 11, April 11, July 11 and October 11 (whether or not a Business
Day) next preceding such January 25, April 25, July 25 and October 25 (each, an “Interest Payment
Date”), as provided in the Indenture; provided that in any case where any Interest Payment Date of
any Note is not a Business Day at the city in which the Corporate Trust Office of the Trustee is
located, then (notwithstanding any other provision of the Indenture or of the Notes) payment of
Interest need not be made at such Corporate Trust Office of the Trustee on such date, but such
payment may be made on the next succeeding Business Day at such Corporate Trust Office of the
Trustee with the same force and effect as if made on the Interest Payment Date and the Interest
should be computed to the Interest Payment Date; provided further that any such interest not
punctually paid or duly provided for shall be payable as provided in the Indenture. The Company
shall pay interest on any Notes check mailed to the address of the Person entitled thereto as it
appears in the Security Register provided that the holder of Notes with an aggregate principal
amount in excess of $1,000,000 shall, at the written election of such holder, be paid by wire
transfer of immediately available funds.



     Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the holder of this Note the right to convert this
Note into Common Stock of the Company 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.



     This Note shall be governed by and construed in accordance with the laws of the State of New
York.



     This Note 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.



A-2









 





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




YINGLI GREEN ENERGY HOLDING COMPANY LIMITED




	 	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	Title:	 	 






Attest:




	 	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	Title:	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION



This is one of the Notes described in the within-named Indenture.




DEUTSCHE BANK AG HONG KONG BRANCH,

as Authenticating Agent



	 	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






Dated:




A-3








 





[FORM OF REVERSE OF NOTE]




YINGLI GREEN ENERGY HOLDING COMPANY LIMITED


10.0% GUARANTEED SENIOR SECURED CONVERTIBLE NOTE DUE 2012



     This Note is one of a duly authorized issue of Notes of the Company, designated as its
10.0% Guaranteed Senior Secured Convertible Notes due 2012 (herein called the
“Notes”), in an aggregate principal amount of $                     or such other amount as shown on
the Security Register as being represented by this Note, issued and to be issued under and pursuant
to an Indenture dated January 16, 2009 (herein called the “Indenture”), among the Company,
Mr. Liansheng Miao and Yingli Power Holding Co. Ltd., as the Guarantors, Yingli Power Holding Co.
Ltd, as Chargor, and DB Trustees (Hong Kong) Limited as trustee (herein called 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 Notes.



     In case an Event of Default shall have occurred and be continuing, the principal of and
accrued and unpaid Interest on all Notes may be declared by either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Notes then outstanding, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.



     The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the holders of a majority in aggregate principal amount of the Notes at the time outstanding, to
execute supplemental indentures adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner
the rights of the holders of the Notes; provided that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, (ii) reduce the rate or extend the time of payment of
Interest thereon, (iii) reduce the principal amount thereof or reduce any amount payable upon
redemption or repurchase thereof, (iv) change the obligation of the Company to repurchase any Note
upon the happening of a Termination of Trading in a manner adverse to the holders of Notes, (v)
impair the right of any Noteholder to institute suit for the payment thereof, (vi) make the
principal thereof or interest thereon payable in any coin or currency other than that provided in
the Notes, (vii) impair the right to convert the Notes into Common Stock or reduce the number of
shares of Common Stock or any other property receivable by a Noteholder upon conversion subject to
the terms set forth in the Indenture, including Section 15.05 thereof, in each case, without the
consent of the holder of each Note so affected, (viii) modify any of the provisions of Section 8.02
or Section 6.08 thereof, except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of the holder of each
Note so affected, (ix) change any obligation of the Company to maintain an office or agency in the
places and for the purposes set forth in Section 4.02 thereof, (x) reduce the quorum or voting
requirements set forth in Article 14, thereof (xi) subordinate the Notes or any Guarantee to any
other obligation of the Company or the applicable Guarantor, (xii) release the security interest
granted in favor of the holders on the Notes in the Collateral other than pursuant to the terms of
the Security Documents or Section 10.02 thereof, (xiii) release any security interest that may have
been granted in favor of the holders of the Notes other than pursuant to the terms of such security
interest, (xiv) reduce any premium payable upon a Change of Control or, at any time after a Change
of Control has occurred, change the time at which the Change of Control Offer relating thereto must
be made or at which the Notes must be repurchased pursuant to such Change of Control Offer, (xv)
make any change in any Guarantee that would adversely affect the holders or (xvi) reduce the
aforesaid percentage of Notes, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all Notes then outstanding. Subject
to the provisions of the Indenture, the holders of a majority in aggregate principal



A-4








 







amount of the Notes at the time outstanding may on behalf of the holders of all of the Notes
waive any past Default or Event of Default under the Indenture and its consequences except (A) a
default in the payment of Interest on, or the principal of, or any Repurchase Amount in respect of
the Notes, (B) a failure by the Company to convert any Notes into Common Stock of the Company, (C)
a default in the payment of the Purchase Price pursuant to Section 3.02 of the Indenture or (D) a
default in respect of a covenant or provisions of the Indenture which under Article 8 of the
Indenture cannot be modified or amended without the consent of the holders of each or all Notes
then outstanding or affected thereby. Any such consent or waiver by the holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.



     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and Interest on this Note at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.



     Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.



     The Notes are issuable in fully registered form, without coupons, in denominations of $100,000
principal amount and any multiple of $1,000 thereafter. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to the limitations provided in the
Indenture, without payment of any service charge but with payment of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection with any
registration or exchange of Notes, Notes may be exchanged for a like aggregate principal amount of
Notes of any other authorized denominations.



     The Notes are not subject to redemption through the operation of any sinking fund.



     In the event that the Company shall be required to commence a Change of Control Offer or a
Termination of Trading Offer, the Company shall mail to all holders of record of the Notes a notice
which states the terms of such Offer to Purchase and the circumstances and relevant facts regarding
such event. Each holder shall have the right to accept such offer and require the Company to
repurchase all or any portion of such holder’s Notes in cash equal to the Repurchase Amount.



     Holders electing to have a Note purchased pursuant to a Offer to Purchase shall deliver to the
Company such Note with the form entitled “Purchase Notice” on the reverse thereof duly
completed, together with the Note, duly endorsed for transfer, at any time prior to the close of
business on the Business Day immediately preceding the Purchase Date, and shall deliver the Notes
to the Trustee (or other paying agent appointed by the Company) as set forth in the Indenture.



     If the Purchase Date is on or after a record date for the payment of interest and on or before
the related Interest Payment Date, any accrued and unpaid Interest shall be paid to the Person in
whose name a Note is registered at the close of business on such record date for the payment of
interest, and no further Interest shall be payable to holders who tender Notes pursuant to the
Offer to Purchase. The Notes will be subject to repurchase in a minimum principal amount of
$100,000 and integral multiples of $1,000 in excess thereof.



     The holder shall be entitled to withdraw any Purchase Notice if the Company, or the Paying
Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram,
facsimile transmission or letter setting forth the name of the holder, the principal amount of this
Note (or portions



A-5









 







thereof) the holder delivered for purchase and a statement that such holder is withdrawing his
election to have this Note purchased.



     If money or cash, sufficient to pay the repurchase price of all Notes or portions thereof to
be purchased as of the Purchase Date is deposited with the Trustee (or other paying agent appointed
by the Company), on the Purchase Date, interest will cease to accrue on such Notes (or portions
thereof) immediately after such Purchase Date, and the holder thereof shall have no other rights as
such other than the right to receive the repurchase price upon surrender of such Note.



     Subject to the foregoing paragraph and occurrence of certain events and in compliance with the
provisions of the Indenture, prior to the final maturity date of the Notes, the holder hereof has
the right, at its option, to convert each $100,000 principal amount of the Notes into 17,699 shares
of the Company’s Common Stock (a conversion price of approximately $5.65 per share), as such shares
shall be constituted at the date of conversion and subject to adjustment from time to time as
provided in the Indenture, upon surrender of this Note with the form entitled “Conversion
Notice” on the reverse thereof duly completed, and manually signed, together with this Note
duly endorsed for transfer, accompanied by the funds, if any, required by Section 15.02 of the
Indenture, such notice also stating the name or names (with address or addresses) in which the
certificate or certificates for shares of Common Stock which shall be issuable on such conversion
shall be issued, and accompanied by transfer or similar taxes, if required pursuant to Section
15.07 of the Indenture.



     No adjustment in respect of interest on any Note converted or dividends on any shares issued
upon conversion of such Note will be made upon any conversion except as set forth in the next
sentence. If this Note (or portion hereof) is surrendered for conversion during the period from
the close of business on any record date for the payment of interest to the close of business on
the Business Day preceding the following Interest Payment Date, this Note (or portion hereof being
converted) must be accompanied by payment, in immediately available funds or other funds acceptable
to the Company, of an amount equal to the interest otherwise payable on such Interest Payment Date
on the principal amount being converted; provided that no such payment shall be required (1) if the
Company has specified a Purchase Date that is during such period or (2) to the extent of any
overdue Interest, if any overdue interest exists at the time of conversion with respect to such
Note.



     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 Note or Notes for conversion.



     A Note in respect of which a holder is exercising its right to require repurchase upon a
Change of Control Offer or Termination of Trading Offer on a Purchase Date may be converted only if
such holder withdraws its election to exercise either such right in accordance with the terms of
the Indenture.



     Upon due presentment for registration of transfer of this Note at the office or agency of the
Company maintained for that purpose in accordance with the terms of the Indenture, a new Note or
Notes of authorized denominations for an equal aggregate principal amount will be issued to the
transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessment or other governmental charge imposed in connection therewith.



     The Company, the Trustee, any authenticating agent, any paying agent, any conversion agent and
any Registrar may deem and treat the registered holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or any Registrar) for the purpose of receiving
payment hereof, or on account hereof, for the conversion hereof and for all other purposes, and
neither the Company nor the



A-6









 







Trustee nor any other authenticating agent nor any paying agent nor other conversion agent nor
any Registrar shall be affected by any notice to the contrary. All payments made to or upon the
order of such registered holder shall, to the extent of the sum or sums paid, satisfy and discharge
liability for monies payable on this Note.



     The Trustee under the Indenture, in its individual or any other capacity, may enter into
business transactions with the Company, its Affiliates or any entity related thereto without
accounting for any profit.



     No recourse for the payment of the principal of or Interest on this Note, or for any claim
based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant
or agreement of the Company in the Indenture or any supplemental indenture or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had against any
incorporator, shareholder, employee, agent, officer or director or subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution, statute or rule of law
or by the enforcement of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the issue hereof, expressly waived and
released.



     This Note shall be governed by and construed in accordance with the laws of New York.



     Terms used in this Note and defined in the Indenture are used herein as therein defined.



A-7









 




ABBREVIATIONS


     The following abbreviations, when used in the inscription of the face of this Note, shall be
construed as though they were written out in full according to applicable laws or regulations.



	 	 	 	 	 	 	 
	TEN COM

	 	-
	 	as tenants in common
	 	UNIF GIFT MIN ACT - Custodian
	TEN ENT

	 	-
	 	as tenant by the entireties
	 	(Cust) (Minor)
	JT TEN	 	-	 	as joint tenants with right of survivorship under Uniform Gifts to Minors 

Act and not as tenants in common






(State)


                                                                                


Additional abbreviations may also be used though not in the above list.


A-8








 








CONVERSION NOTICE




TO: YINGLI GREEN ENERGY HOLDING COMPANY LIMITED




                    




     The undersigned registered owner of this Note hereby irrevocably exercises the option to
convert this Note, or the portion thereof (which is $100,000 or a multiple of $1,000 in excess
thereof) below designated, into shares of Common Stock of Yingli Green Energy Holding Company
Limited in accordance with the terms of the Indenture referred to in this Note, and directs that
the shares issuable and deliverable upon such conversion, together with any check in payment for
fractional shares and any Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been indicated below.
Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the
Indenture. If shares or any portion of this Note not converted are to be issued in the name of a
person other than the undersigned, the undersigned will provide the appropriate information below
and pay all transfer taxes payable with respect thereto. Any amount required to be paid by the
undersigned on account of interest, including additional interest, if any, accompanies this Note.


Dated:



 




 





Signature(s)




Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the 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 Registrar in addition to, or in substitution for, STAMP.



 





Fill in the registration of shares of Common Stock if to be issued, and Notes if to be delivered,
other than to and in the name of the registered holder:




                                                            

(Name)




                                                            

(Street Address)




                                                            

(City, State and Zip Code)




                                                            

Please print name and address




Principal amount to be converted

(if less than all):




A-9








 





$                                                            



Social Security or Other Taxpayer

Identification Number:



                                                            




A-10









 




PURCHASE NOTICE


TO: YINGLI GREEN ENERGY HOLDING COMPANY LIMITED


                    


     The undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a
notice from Yingli Green Energy Holding Company Limited (the “Company”) regarding the right
of holders to elect to require the Company to repurchase the Notes upon the occurrence of either a
Change of Control Offer or a Termination of Trading Offer and requests and instructs the Company to
repay the entire principal amount of this Note, or the portion thereof (which is $100,000 or an
integral multiple of $1,000 in excess thereof) below designated, in accordance with the terms of
the Indenture at the price of the Repurchase Amount, to the registered holder hereof.


     Capitalized terms used herein but not defined shall have the meanings ascribed to such terms
in the Indenture. The Notes shall be purchased by the Company as of the Purchase Date pursuant to
the terms and conditions specified in the Indenture.


     $               
principal amount of the Notes to which this Purchase Notice relates (if less than entire
principal amount) pursuant to 4.13 or 4.17 of the Indenture, check the box below:



	 	 	 	 	 
	o

	 	Section 4.13
	 	Purchase Date:                                        
	 
	 	 	 	 
	o

	 	Section 4.17	 	 





Dated:



Signature(s):



NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon
the face of the Note in every particular without alteration or enlargement or any change whatever.




A-11








 







Note Certificate Number (if applicable):



Principal amount to be repurchased (if less than all):



Social Security or Other Taxpayer Identification Number:



Assignment Form




          To assign this Note, fill in the form below:




          (I) or (we) assign and transfer this Note to



 
 




 (Insert assignee’s social security or other tax I.D. no.)



 
 




 
 




 
 




 
 





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



and irrevocably appoint
                                                                                                                                                                                    

as agent to transfer this Note on the books of the Company. The agent may substitute another to
act for him.




Date:                     




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	(Sign exactly as your name appears on the
face of this Note)






Signature Guarantee:





A-12








 








EXHIBIT B




FORM OF NOTATION OF GUARANTEE




     For value received, each Guarantor (which term includes any successor Person under the
Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in and
subject to the provisions in the Guarantee Agreement, dated January [___], 2009 (the
“Guarantee”), by Mr. Liansheng Miao and Yingli Power Holding Company Ltd. (a) the due and
punctual payment of the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration, redemption, repurchase or otherwise, the due and punctual payment of
interest on overdue principal and premium, if any, and, to the extent permitted by law, interest
and the due and punctual performance of all other obligations of the Company to the holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantor to the
holders of Notes and to the Trustee pursuant to the Guarantee are expressly set forth in the
Guarantee and reference is hereby made to the Guarantee for the precise terms of the Guarantee.
Each holder of a Note, by accepting the same agrees to and shall be bound by such provisions.
Capitalized terms used herein and not defined are used herein as so defined in the Guarantee.



	 	 	 	 	 
	 	[GUARANTOR NAME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT C-1




FORM OF CERTIFICATE OF TRANSFER




Yingli Green Energy Holding Company Limited

No. 3055 Middle Fuxing Road

Baoding 070151

People’s Republic of China

Attention: Chief Financial Officer




Deutsche Bank AG Hong Kong Branch

48th Floor, Cheung Kong Center

2 Queen’s Road Central

Hong Kong





          Re: 10.0% GUARANTEED SENIOR SECURED CONVERTIBLE NOTES DUE
2012



     Reference is hereby made to the Indenture, dated January 16, 2009 (the “Indenture”),
among YINGLI GREEN ENERGY HOLDING COMPANY LIMITED, as issuer (the “Company”), the
Guarantors and the Chargor thereto and DEUTSCHE BANK AG, HONG KONG BRANCH, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.



                         , (the “Transferor”) owns and proposes to transfer the Note[s] or
interest in such Note[s] in the principal amount of $                    
(the “Transfer”), to
                                         (the “Transferee”). In connection with the Transfer, the
Transferor hereby certifies as follows:



1. The Transfer is being effected:




          (a) pursuant to an effective registration statement under the Securities Act,




          (b) pursuant to Rule 144 of the Securities Act,




          (c) pursuant to another exemption from registration under the Securities Act, as described in
the opinion of counsel enclosed herewith, or




          (d) in accordance with Rule 903 or Rule 904 under the Securities Act and, in the case of any
sale pursuant to this clause (d), the Transferor hereby further certifies that (i) the Transfer is
not being made to a Person in the United States and (A) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (B) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(a) of Regulation S under the
Securities Act, and (iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.



2. [If the proposed transfer is being made prior to the expiration of the Distribution Compliance
Period (as defined in Regulation S under the Securities Act), (A) the transfer is not being made to
a U.S. Person or for



C-1








 






the account or benefit of a U.S. Person, (B) the Transferee is not a U.S. person and is not
acquiring the Notes for the account or benefit of any U.S. person or is a U.S. person who purchased
securities in a transaction that did not require registration under the Securities Act, (C) the
Transferee understands that it may and agrees to resell the Notes only in accordance with the
provisions of Regulation S, pursuant to registration under the Securities Act, or pursuant to an
available exemption from registration; and understands that it may not and agrees not to engage in
hedging transactions with regard to the Notes or the ordinary shares issuable upon conversion
unless in compliance with the Securities Act; (D) the Transferee acknowledges that the certificates
evidencing the Notes will contain a legend to the effect that transfer is prohibited except in
accordance with the provisions of Regulation S, pursuant to registration under the Securities Act,
or pursuant to an available exemption from registration; and that hedging transactions involving
those securities may not be conducted unless in compliance with the Securities Act; (E) the
Transferee acknowledges that the Company is required to refuse to register any transfer of the
securities not made in accordance with the provisions of Regulation S, pursuant to registration
under the Securities Act, or pursuant to an available exemption from registration; provided,
however, that if the Notes are in bearer form or foreign law prevents the Company from refusing to
register securities transfers, other reasonable procedures (such as a legend described above) are
implemented to prevent any transfer of the securities not made in accordance with the provisions of
Regulation S.]1




     Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred Note will be subject to the restrictions on Transfer enumerated in the legend printed
on the Note, if applicable, and in the Securities Act.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	 	 
	 	 	[Insert Name of Transferor]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 

	 	Dated:	 	 
	 

	 	 	 	 







 




			
	1	 	To be included if sale within 40 days of date of the
applicable Note(s).





 








 





EXHIBIT C-2




FORM OF TRANSFER INSTRUMENT




FOR VALUE RECEIVED the undersigned hereby transfers to




                                                            




                                                            



(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF TRANSFEREE)



US$                      principal amount of the Notes in respect of which this instrument is issued, and all
rights in respect thereof.



All payments in respect of the Notes hereby transferred are to be made (unless otherwise instructed
by the transferee) to the following account:



Name of bank:

US$ account number:

For the account of:




Dated:                                         

Certifying Signature

Name:                                                             




Notes:





	(a)	 	A representative of the Noteholder should state the capacity in which he signs, e.g.
executor.
	 
	(b)	 	The signature of the transferor shall conform to any list of duly authorised specimen
signatures supplied by the registered holder or be certified by a recognised bank, notary
public or in such other manner as the Agent or the Registrar may require.





 








 








EXHIBIT D




FORM OF RESTRICTIVE LEGEND FOR

COMMON STOCK ISSUED UPON CONVERSION




     THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR OTHER SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE
ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THESE SECURITIES UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS; (B) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
REGULATION S UNDER THE SECURITIES ACT OR (C) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR
(II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT; PROVIDED, HOWEVER, THAT IN EACH
CASE, THESE SECURITIES MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO ANY U.S. PERSON (AS
DEFINED IN REGULATION S) WITHIN 40 DAYS FOLLOWING THE DATE OF THE CONVERTIBLE NOTE FROM WHICH THESE
SECURITIES WERE CONVERTED.



     THE HOLDER OF THESE SECURITIES AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITIES EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE I(A) OR (II)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND




D-1









 








EXHIBIT E




FORM OF YGE SHARE CHARGE





E-1