exv4w1






Exhibit 4.1




EXECUTION VERSION




AMKOR TECHNOLOGY, INC.




7.375% SENIOR NOTES DUE 2018



 





INDENTURE




Dated as of May 4, 2010




U.S. BANK NATIONAL ASSOCIATION




Trustee



 





 









 





TABLE OF CONTENTS




Page




	 	 	 	 	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	1
	Section 1.01.
	 	Definitions	 	1
	Section 1.02.
	 	Other Definitions	 	16
	Section 1.03.
	 	Incorporation by Reference of Trust Indenture Act	 	16
	Section 1.04.
	 	Rules of Construction	 	17
	ARTICLE 2 THE NOTES	 	17
	Section 2.01.
	 	Form and Dating	 	17
	Section 2.02.
	 	Execution and Authentication	 	18
	Section 2.03.
	 	Registrar and Paying Agent	 	19
	Section 2.04.
	 	Paying Agent to Hold Money in Trust	 	19
	Section 2.05.
	 	Holder Lists	 	19
	Section 2.06.
	 	Transfer and Exchange	 	19
	Section 2.07.
	 	Replacement Notes	 	31
	Section 2.08.
	 	Outstanding Notes	 	31
	Section 2.09.
	 	Treasury Notes	 	31
	Section 2.10.
	 	Temporary Notes	 	32
	Section 2.11.
	 	Cancellation	 	32
	Section 2.12.
	 	Defaulted Interest	 	32
	ARTICLE 3 REDEMPTION AND REPAYMENT	 	32
	Section 3.01.
	 	Notices to Trustee	 	32
	Section 3.02.
	 	Selection of Notes to Be Redeemed	 	32
	Section 3.03.
	 	Notice of Redemption	 	33
	Section 3.04.
	 	Effect of Notice of Redemption	 	34
	Section 3.05.
	 	Deposit of Redemption Price	 	34
	Section 3.06.
	 	Notes Redeemed in Part	 	34
	Section 3.07.
	 	Optional Redemption	 	34
	Section 3.08.
	 	No Mandatory Redemption	 	35
	Section 3.09.
	 	Offer to Purchase by Application of Excess Proceeds	 	35






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	ARTICLE 4 COVENANTS	 	37
	Section 4.01.
	 	Payment of Notes	 	37
	Section 4.02.
	 	Maintenance of Office or Agency	 	37
	Section 4.03.
	 	Reports	 	37
	Section 4.04.
	 	Compliance Certificate	 	38
	Section 4.05.
	 	Taxes	 	38
	Section 4.06.
	 	Stay, Extension and Usury Laws	 	38
	Section 4.07.
	 	Restricted Payments	 	38
	Section 4.08.
	 	Dividend and Other Payment Restrictions Affecting Subsidiaries	 	42
	Section 4.09.
	 	Incurrence of Indebtedness and Issuance of Preferred Stock	 	43
	Section 4.10.
	 	Asset Sales	 	46
	Section 4.11.
	 	Transactions with Affiliates	 	47
	Section 4.12.
	 	Liens	 	48
	Section 4.13.
	 	Corporate Existence	 	49
	Section 4.14.
	 	Offer to Repurchase Upon Change of Control	 	49
	Section 4.15.
	 	Limitation on Issuances and Sales of Capital Stock in	 	 
	 
	 	Wholly Owned Subsidiaries	 	50
	Section 4.16.
	 	Payments for Consent	 	50
	Section 4.17.
	 	Future Subsidiary Guarantees	 	51
	Section 4.18.
	 	Designation of Restricted and Unrestricted Subsidiaries	 	51
	Section 4.19.
	 	Limitation on Sale and Leaseback Transactions	 	51
	ARTICLE 5 SUCCESSORS	 	51
	Section 5.01.
	 	Merger, Consolidation, or Sale of Assets	 	51
	Section 5.02.
	 	Successor Corporation Substituted	 	52
	ARTICLE 6 DEFAULTS AND REMEDIES	 	52
	Section 6.01.
	 	Events of Default	 	52
	Section 6.02.
	 	Acceleration	 	54
	Section 6.03.
	 	Other Remedies	 	54
	Section 6.04.
	 	Waiver of Past Defaults	 	54
	Section 6.05.
	 	Control by Majority	 	55
	Section 6.06.
	 	Limitation on Suits	 	55
	Section 6.07.
	 	Rights of Holders of Notes to Receive Payment	 	55
	Section 6.08.
	 	Collection Suit by Trustee	 	55






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Page




	 	 	 	 	 
	Section 6.09.
	 	Trustee May File Proofs of Claim	 	56
	Section 6.10.
	 	Priorities	 	56
	Section 6.11.
	 	Undertaking for Costs	 	56
	ARTICLE 7 TRUSTEE	 	57
	Section 7.01.
	 	Duties of Trustee	 	57
	Section 7.02.
	 	Rights of Trustee	 	58
	Section 7.03.
	 	Individual Rights of Trustee	 	58
	Section 7.04.
	 	Trustee’s Disclaimer	 	58
	Section 7.05.
	 	Notice of Defaults	 	58
	Section 7.06.
	 	Reports by Trustee to Holders of the Notes	 	59
	Section 7.07.
	 	Compensation and Indemnity	 	59
	Section 7.08.
	 	Replacement of Trustee	 	60
	Section 7.09.
	 	Successor Trustee by Merger, etc	 	61
	Section 7.10.
	 	Eligibility; Disqualification	 	61
	Section 7.11.
	 	Preferential Collection of Claims Against Company	 	61
	ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	61
	Section 8.01.
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	61
	Section 8.02.
	 	Legal Defeasance and Discharge	 	61
	Section 8.03.
	 	Covenant Defeasance	 	62
	Section 8.04.
	 	Conditions to Legal or Covenant Defeasance	 	62
	Section 8.05.
	 	Deposited Money and Government Securities to be Held in	 	 
	 
	 	Trust; Other Miscellaneous Provisions	 	63
	Section 8.06.
	 	Repayment to Company	 	64
	Section 8.07.
	 	Reinstatement	 	64
	ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER	 	64
	Section 9.01.
	 	Without Consent of Holders of Notes	 	64
	Section 9.02.
	 	With Consent of Holders of Notes	 	65
	Section 9.03.
	 	Compliance with Trust Indenture Act	 	66
	Section 9.04.
	 	Revocation and Effect of Consents	 	67
	Section 9.05.
	 	Notation on or Exchange of Notes	 	67
	Section 9.06.
	 	Trustee to Sign Amendments, etc	 	67






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	ARTICLE 10 NOTE GUARANTEES	 	67
	Section 10.01.
	 	Guarantee	 	67
	Section 10.02.
	 	Limitation on Guarantor Liability	 	68
	Section 10.03.
	 	Execution and Delivery of Note Guarantee	 	68
	Section 10.04.
	 	Guarantors May Consolidate, etc., on Certain Terms	 	69
	Section 10.05.
	 	Release of Notes Guarantors	 	70
	ARTICLE 11 MISCELLANEOUS	 	70
	Section 11.01.
	 	Trust Indenture Act Controls	 	70
	Section 11.02.
	 	Notices	 	70
	Section 11.03.
	 	Communication by Holders of Notes with Other Holders of Notes	 	71
	Section 11.04.
	 	Certificate and Opinion as to Conditions Precedent	 	72
	Section 11.05.
	 	Statements Required in Certificate or Opinion	 	72
	Section 11.06.
	 	Rules by Trustee and Agents	 	72
	Section 11.07.
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	72
	Section 11.08.
	 	Governing Law, Consent to Jurisdiction and Service of Process	 	72
	Section 11.09.
	 	Agent for Service; Submission to Jurisdiction	 	73
	Section 11.10.
	 	No Adverse Interpretation of Other Agreements	 	73
	Section 11.11.
	 	Successors	 	73
	Section 11.12.
	 	Severability	 	73
	Section 11.13.
	 	Counterpart Originals	 	73
	Section 11.14.
	 	Table of Contents, Headings, etc	 	73
	Section 11.15.
	 	Designated Senior Debt	 	74






EXHIBITS




	 	 	 

	Exhibit A

	 	FORM OF NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF GUARANTEE
	Exhibit E

	 	FORM OF SUPPLEMENTAL INDENTURE






iv









 






AMKOR TECHNOLOGY, INC.




Reconciliation and tie between Trust Indenture Act

of 1939 and Indenture, dated as of May 4, 2010




	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	§ 310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(b)
	 	7.08, 7.10
	(c)
	 	Not Applicable
	§ 311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	Not Applicable
	§ 312(a)
	 	2.05
	(b)
	 	11.03
	(c)
	 	11.03
	§ 313(a)
	 	7.06
	(b)(1)
	 	Not Applicable
	(b)(2)
	 	7.06
	(c)
	 	7.06
	(d)
	 	7.06
	§ 314(a)
	 	4.03, 4.04
	(c)(1)
	 	11.04
	(c)(2)
	 	11.04
	(c)(3)
	 	Not Applicable
	(e)
	 	11.05
	(f)
	 	Not Applicable
	§ 315(a)
	 	7.01
	(b)
	 	7.05
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	§ 316(a) (last sentence)
	 	2.09
	(a)(l)(A)
	 	6.05
	(a)(l)(B)
	 	6.04
	(a)(2)
	 	Not Applicable
	(b)
	 	6.07
	§ 317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	§ 318(a)
	 	11.01








 




			
	Note: 	 	This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.




 









 










          INDENTURE dated as of May 4, 2010 between Amkor Technology, Inc., a Delaware corporation
(the “Company”), and U.S. Bank National Association, as trustee (the “Trustee”).




          The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders of the 7.375% Senior Notes due 2018 (the “Notes”):




ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01. Definitions.




          “144A Global Note” means a global note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Restricted Notes Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.




          “Acquired Debt” means, with respect to any specified Person, (i) Indebtedness of any other
Person existing at the time such other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such
specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.




          “Additional Interest” means interest payable pursuant to (i) Section 6.02(b) hereof and (ii)
the Registration Rights Agreement.




          “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more, or an agreement, obligation or option
to purchase 10% or more, of the Voting Stock of a Person shall be deemed to be control. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control
with” shall have correlative meanings.




          “Agent” means any Registrar, Paying Agent or co-registrar.




          “Agent’s Message” means a message transmitted by DTC to, and received by, the Depositary and
forming a part of the book-entry confirmation, which states that DTC has received an express and
unconditional acknowledgement from the Participant in DTC described in such agent’s message,
stating the aggregate principal amount of Notes that have been tendered by such Participant.




          “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary.




          “Attributable Debt” in respect of a sale and leaseback transaction involving an operating
lease means, at the time of determination, the present value of the obligation of the lessee for
net 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 or may, at the option of
the lessor, be extended. Such present value shall be calculated using a discount rate equal to the
rate of interest implicit in such transaction, determined in accordance with GAAP.







 









 








          “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.




          “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as such term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence of a subsequent
condition.




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




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




          “Capital Lease Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.




          “Capital Stock” means (i) in the case of a corporation, corporate stock, (ii) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited), and (iv) any
other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.




          “Cash Equivalents” means (i) United States dollars or currency of any other sovereign nation
in which the Company or any Restricted Subsidiary conducts business, (ii) securities issued or
directly and fully guaranteed or insured by the full faith and credit of the United States
government or any agency or instrumentality thereof having maturities of not more than twelve
months from the date of acquisition, (iii) certificates of deposit and eurodollar time deposits
with maturities of twelve months or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding twelve months and overnight bank deposits, in each case with (A) any
domestic commercial bank having capital and surplus in excess of $500,000,000 and a Fitch
Individual Rating (formerly Thompson Bank Watch Rating) of “B” or better, or (B) any commercial
bank organized under the laws of any foreign country recognized by the United States having capital
and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof) and a Fitch
Individual Rating (formerly Thompson Bank Watch Rating) of “B” or better, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper having the highest rating
obtainable from either Moody’s Investors Service, Inc. or Standard & Poor’s Corporation and, in
each case, maturing within six months after the date of acquisition, and (vi) money market funds at
least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (i)
through (v) of this definition, provided that the currency of any sovereign nation other than the
United States and certificates of deposit, eurodollar time deposits, bankers’ acceptances and
overnight bank deposits with any commercial bank organized under the laws of a foreign country
shall not be considered “Cash Equivalents” for purposes of determining whether an Asset Sale is
permitted pursuant to Section 4.10 hereof.




          “Change of Control” means the occurrence of any of the following: (i) the adoption of a plan
relating to the liquidation or dissolution of the Company, (ii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which is that any
“person” (as defined above), other than a Permitted Holder, becomes the Beneficial Owner, directly
or indirectly, of






2









 







more than 35% of the Voting Stock of the Company, measured by voting power rather than number
of shares, and such percentage represents more than the aggregate percentage of the Voting Stock of
the Company, measured by voting power rather than number of shares, as to which any Permitted
Holder is the Beneficial Owner, or (iii) the first date during any consecutive two year period on
which a majority of the members of the Board of Directors of the Company are not Continuing
Directors. For purposes of this definition, any transfer of an Equity Interest of an entity that
was formed for the purpose of acquiring Voting Stock of the Company will be deemed to be a transfer
of such portion of Voting Stock as corresponds to the portion of the equity of such entity that has
been so transferred.




          “Clearstream” means Clearstream Banking, société anonyme, or its successors.




          “Company” means Amkor Technology, Inc., and any and all successors thereto.




          “Consolidated Cash Flow” means, with respect to any Person for any period, the Consolidated
Net Income of such Person for such period plus: (i) an amount equal to any extraordinary loss plus
any net loss realized in connection with an Asset Sale, to the extent such losses were deducted in
computing such Consolidated Net Income, plus (ii) provision for taxes based on income or profits of
such Person and its Restricted Subsidiaries for such period, to the extent that such provision for
taxes was deducted in computing such Consolidated Net Income, plus (iii) consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and
whether or not capitalized (including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers’ acceptance financings, and net
payments, if any, pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense
to the extent that it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such depreciation, amortization and
other non-cash expenses were deducted in computing such Consolidated Net Income, plus (v) non-cash
items (other than any non-cash items that will require cash payments in the future or that relate
to foreign currency translation) decreasing such Consolidated Net Income for such period, other
than items that were accrued in the ordinary course of business, in each case, on a consolidated
basis and determined in accordance with GAAP, minus (vi) non-cash items (other than any non-cash
items that will require cash payments in the future or that relate to foreign currency translation)
increasing such Consolidated Net Income for such period, other than items that were accrued in the
ordinary course of business, in each case, on a consolidated basis and determined in accordance
with GAAP.




          Notwithstanding the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash charges of, a Restricted Subsidiary of the
Company shall be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company
only to the extent that a corresponding amount would be permitted at the date of determination to
be dividended to the Company by such Restricted 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 that Subsidiary or its
stockholders.




          “Consolidated Interest Expense” means, with respect to any Person for any period, the sum,
without duplication, of: (i) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization
of debt






3









 







issuance costs and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings,
and net payments, if any, pursuant to Hedging Obligations, plus (ii) the consolidated interest of
such Person and its Restricted Subsidiaries that was capitalized during such period, plus (iii)
interest actually paid by the Company or any Restricted Subsidiary under any Guarantee of
Indebtedness of another Person, plus (iv) the product of all dividend payments, whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other
than dividend payments on Equity Interests payable solely in Equity Interests of the Company (other
than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company.




          “Consolidated Interest Expense Coverage Ratio” means with respect to any specified Person for
any period, the ratio of the Consolidated Cash Flow of such Person and its Restricted Subsidiaries
for such period to the Consolidated Interest Expense of such Person for such period. In the event
that the specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees or
redeems any Indebtedness (other than revolving credit borrowings) or issues or redeems preferred
stock subsequent to the commencement of the period for which the Consolidated Interest Expense
Coverage Ratio is being calculated but prior to the date on which the event for which the
calculation of the Consolidated Interest Expense Coverage Ratio is made (the “Calculation Date”),
then the Consolidated Interest Expense Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at the beginning of the applicable
four-quarter reference period.




          In addition, for purposes of calculating the Consolidated Interest Expense Coverage Ratio:
(i) acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries,
including through mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference period and on or prior to
the Calculation Date shall be deemed to have occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference period shall be calculated without
giving effect to clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, (ii) the Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall
be excluded, and (iii) the Consolidated Interest Expense attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations giving rise to
such Consolidated Interest Expense will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date.




          “Consolidated Net Assets” means, with respect to any specified Person as of any date, the
total assets of such Person as of such date less (i) the total liabilities of such Person as of
such date, (ii) the amount of any Disqualified Stock as of such date and (iii) any minority
interests reflected on the balance sheet of such Person as of such date.




          “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that: (i) the Net Income (but not
loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Restricted Subsidiary thereof, (ii) the Net
Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior






4









 







governmental approval (that has not been obtained) or, directly or indirectly, by operation of
the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its stockholders, (iii) the Net
Income of any Person acquired in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded, (iv) the Net Income (but not loss) of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the specified Person or one of its
Subsidiaries, and (v) the cumulative effect of a change in accounting principles shall be excluded.




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




          “Convertible Subordinated Notes” means the Company’s 2.50% Convertible Senior Subordinated
Notes due May 15, 2011, 6.25% Convertible Subordinated Notes due 2013 and 6.00% Convertible Senior
Subordinated Notes due 2014.




          “Corporate Trust Office of the Trustee” shall be at the address of the Trustee at which the
trust created by this Indenture is administered, which address as of the date hereof is specified
in Section 11.02 hereof, or such other address as to which the Trustee may give notice to the
Company.




          “Credit Facilities” means, with respect to the Company or any Subsidiary, one or more debt
facilities or commercial paper facilities with banks or other institutional lenders providing for
revolving credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.




          “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.




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




          “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except
that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges
of Interests in the Global Note” attached thereto.




          “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Global
Notes, and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.




          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the date the Notes
mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control






5









 







or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07 hereof.




          “Domestic Subsidiary” means a Restricted Subsidiary that is (i) formed under the laws of the
United States of America or a state or territory thereof or (ii) as of the date of determination,
treated as a domestic entity or a partnership or a division of a domestic entity for United States
federal income tax purposes; and, in either case, is not owned, directly or indirectly, by an
entity that is not described in clauses (i) or (ii) above.




          “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).




          “Equity Offering” means any offering for cash of common stock of the Company or options,
warrants or rights with respect to its common stock so long as shares of the common stock of the
Company remain listed on a national securities exchange or quoted on an established
over-the-counter trading market in the United States.




          “Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear System, or its successors
in such capacity.




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




          “Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f)
hereof.




          “Exchange Offer” has the meaning set forth in the Registration Rights Agreement.




          “Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.




          “Existing Indebtedness” means Indebtedness of the Company and its Restricted Subsidiaries in
existence on the date of this Indenture, until such amounts are repaid.




          “Foreign Subsidiary” means a Subsidiary of the Company that is not a Domestic Subsidiary.




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.




          “Global Note Legend” means the legend set forth in Section 2.06(g)(ii), which is required to
be placed on all Global Notes issued under this Indenture.




          “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes, substantially in the form of Exhibit A hereto issued in accordance
with Section 2.01, 2.06(b), 2.06(d) or 2.06(f) hereof.







6









 








          “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.




          “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.




          “Guarantor” means any future Domestic Subsidiary of the Company formed or capitalized after
the date of this Indenture that is a Significant Subsidiary and that is required by the terms of
this Indenture to execute a Note Guarantee, in accordance with the provisions of this Indenture,
and its successors and assigns, until such Guarantor is released as a Guarantor in accordance with
the terms of this Indenture.




          “Hedging Obligations” means, with respect to any Person, the Obligations of such Person under
(i) swap agreements, cap agreements and collar agreements relating to interest rates, commodities
or currencies; and (ii) other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, commodities or currencies




          “Holder” means a Person in whose name a Note is registered.




          “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent, in respect of: (i) borrowed money, (ii) bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement agreements in respect thereof), (iii)
banker’s acceptances, (iv) Capital Lease Obligations, (v) the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes an accrued expense or
trade payable, or (vi) Hedging Obligations, if and to the extent any of such indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet of
the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness”
includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether
or not such Indebtedness is assumed by the specified Person measured as the lesser of the fair
market value of the assets of such Person so secured or the amount of such Indebtedness) and, to
the extent not otherwise included, the Guarantee by such Person of any indebtedness of any other
Person.




          The amount of any Indebtedness outstanding as of any date shall be the accreted value thereof,
in the case of any Indebtedness issued with original issue discount. In addition, the amount of
any Indebtedness shall also include the amount of all Obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any
Restricted Subsidiary of the Company, any preferred stock of such Restricted Subsidiary.




          “Indenture” means this Indenture, as amended or supplemented from time to time.




          “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.




          “Initial Notes” means the Notes issued on the date hereof.




          “Investments” means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the forms of direct or indirect loans (including Guarantees of
Indebtedness or other obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of business), purchases
or other






7









 







acquisitions for consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as provided in Section 4.07
hereof.




          “Issue Date” means the date on which the Notes are initially issued.




          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.




          “Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.




          “Lien” means, with respect to any asset, any mortgage, lien, pledge, fixed or floating charge,
security interest or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof; provided that the term “Lien” shall not
include any lease properly classified as an operating lease in accordance with GAAP.




          “Make-Whole Amount” means, in connection with any optional redemption of any Note pursuant to
Section 3.07(c) hereof, the excess, if any, of (i) the aggregate present value as of the date of
such redemption of each dollar of principal being redeemed and the amount of interest (exclusive of
interest accrued to the redemption date) that would have been payable in respect of such dollar if
such prepayment had not been made, determined by discounting, on a semiannual basis, such principal
and interest at the Reinvestment Rate (determined on the Business Day preceding the date of such
redemption) from the respective dates on which such principal and interest would have been payable
if such payment had not been made, over (ii) the aggregate principal amount of the Notes being
redeemed.




          “Net Income” means, with respect to any Person, the net income (loss) of such Person and its
Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however: (i) any gain (but not loss), together with any
related provision for taxes on such gain (but not loss), realized in connection with (a) any Asset
Sale or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries
or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries,
(ii) any extraordinary gain (but not loss), together with any related provision for taxes on such
extraordinary gain (but not loss), (iii) any gain or loss relating to foreign currency translation
or exchange, and (iv) any income or loss related to any discontinued operation.




          “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, and any relocation expenses incurred
as a result thereof, taxes paid or payable as a result thereof, in each case after taking into
account any available tax credits or deductions






8









 







and any tax sharing arrangements and amounts required to be applied to the repayment of
Indebtedness, other than Permitted Bank Debt, secured by a Lien on the asset or assets that were
the subject of such Asset Sale.




          “Non-Recourse Debt” means Indebtedness: (i) as to which neither the Company nor any of its
Restricted Subsidiaries (A) provides credit support of any kind (including any obligation that
would constitute Indebtedness), or (B) is directly or indirectly liable as a guarantor or
otherwise, other than in the form of a Lien on the Equity Interests of an Unrestricted Subsidiary
held by the Company or any Restricted Subsidiary in favor of any holder of Non-Recourse Debt of
such Unrestricted Subsidiary, (ii) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the
Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated
maturity, and (iii) as to which the lenders have been notified in writing that they will not have
any recourse to the stock or assets of the Company or any of its Restricted Subsidiaries (other
than against the Equity Interests of such Unrestricted Subsidiary, if any).




          “Non-U.S. Person” means a person other than a U.S. Person.




          “Note Guarantee” means the Guarantee by each Guarantor of the Company’s payment obligations
under this Indenture and on the Notes, executed pursuant to the provisions of this Indenture.




          “Notes” has the meaning assigned to it in the preamble to this Indenture.




          “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.




          “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.




          “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 11.05 hereof.




          “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 11.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.




          “Participant” means, with respect to the Depositary, a Person who has an account with the
Depositary.




          “Permitted Bank Debt” means Indebtedness incurred by the Company or any Restricted Subsidiary
pursuant to the Credit Facilities, any Receivables Program, or one or more other term loan and/or
revolving credit or commercial paper facilities (including any letter of credit subfacilities) or
indentures or note purchase agreements entered into with commercial banks and/or financial
institutions, and/or institutional investors and/or insurance companies or trustees, whether in the
bank or debt capital markets or otherwise (or combination thereof) and any replacement, extension,
renewal, refinancing or refunding thereof.







9









 








          “Permitted Business” means the business of the Company and its Subsidiaries, taken as a whole,
operated in a manner consistent with past operations, and any business that is reasonably related
thereto or supplements such business or is a reasonable extension thereof.




          “Permitted Holder” means James J. Kim and his estate, spouse, siblings, ancestors, heirs and
lineal descendants, and spouses of any such persons, the legal representatives of any of the
foregoing, and the trustee of any bona fide trust of which one or more of the foregoing are the
principal beneficiaries or the grantors or any other Person that is controlled by any of the
foregoing.




          “Permitted Investments” means: (i) any Investment in the Company or in a Restricted
Subsidiary, (ii) any Investment in Cash Equivalents, (iii) any Investment by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such Investment or in
connection with the transaction pursuant to which such Investment is made (A) such Person becomes a
Restricted Subsidiary of the Company, or (B) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company, (iv) any Investment made as a result of the
receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.10 hereof, (v) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company, (vi) any Investment in connection
with Hedging Obligations, (vii) any Investments received (A) in satisfaction of judgments, or (B)
as payment on a claim made in connection with any bankruptcy, liquidation, receivership or other
insolvency proceeding, (viii) Investments in (A) prepaid expenses and negotiable instruments held
for collection, (B) accounts receivable arising in the ordinary course of business (and Investments
obtained in exchange or settlement of accounts receivable for which the Company or any Restricted
Subsidiary has determined that collection is not likely), and (C) lease, utility and worker’s
compensation, performance and other similar deposits arising in the ordinary course of business,
(ix) any Strategic Investment; provided that the aggregate amount of all Investments by the Company
and any Restricted Subsidiaries in Strategic Investments shall not exceed 5% of the Company’s
consolidated total assets determined as of the date of the last day of the Company’s most recently
ended fiscal quarter, and (x) Investments purchased or received in exchange for Permitted
Investments existing as of the Issue Date or made thereafter; provided that any additional
consideration provided by the Company or any Restricted Subsidiary in such exchange shall not be
permitted pursuant to this clause (x); and provided, further, that such purchased or exchanged
Investments shall have a fair market value (as determined by an officer of the Company unless such
fair market value exceeds $25.0 million in which case, as determined by the Company’s board of
directors) equal to or exceeding the Permitted Investments exchanged therefor; provided, further,
that, notwithstanding the preceding, any extension of credit or advance by the Company or any of
its Subsidiaries to a customer or supplier of the Company or its Subsidiaries shall not be a
Permitted Investment.




          “Permitted Liens” means: (i) Liens on the assets of the Company and any Restricted Subsidiary
securing Permitted Bank Debt that was permitted by the terms of this Indenture to be incurred, (ii)
Liens on the assets of any Foreign Subsidiary securing Indebtedness and other Obligations under
Indebtedness of such Foreign Subsidiary that were permitted by the terms of this indenture to be
incurred, (iii) Liens in favor of the Company or any Restricted Subsidiary, (iv) Liens on property
of a Person existing at the time such Person is merged with or into or consolidated with the
Company or any Restricted Subsidiary of the Company; provided that such Liens were not incurred in
contemplation of such merger or consolidation and do not extend to any assets other than those of
the Person merged into or consolidated with the Company or the Restricted Subsidiary, (v) Liens on
property existing at the time of acquisition thereof by the Company or any Restricted Subsidiary of
the Company, provided that such Liens were not incurred in contemplation of such acquisition, (vi)
Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of business, (vii) Liens to
secure Obligations in respect of Indebtedness






10









 







(including Capital Lease Obligations) permitted by clause (iv) of Section 4.09(b) hereof
covering only the assets acquired with such Indebtedness, including accessions, additions, parts,
attachments, improvements, fixtures, leasehold improvements or proceeds, if any, related thereto,
(viii) Liens existing on the date of this Indenture, (ix) Liens securing Obligations of the Company
and/or any Restricted Subsidiary in respect of any Receivables Program, (x) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings; provided that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have been made therefor, (xi) Liens
imposed by law or arising by operation of law, including, without limitation, landlords’,
mechanics’, carriers’, warehousemen’s, materialmen’s, suppliers’ and vendors’ Liens, Liens for
master’s and crew’s wages and other similar Liens, in each case which are incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith, if such reserves
or other appropriate provisions, if any, as shall be required by GAAP shall have been made with
respect thereto, (xii) Liens incurred or pledges and deposits made in the ordinary course of
business in connection with workers’ compensation and unemployment insurance and other types of
social security, (xiii) Liens to secure any extension, renewal, refinancing or refunding (or
successive extensions, renewals, refinancings or refundings), in whole or in part, of any
Indebtedness secured by Liens referred to in the foregoing clauses (iv), (v), (vii) and (viii) of
this definition; provided that such Liens do not extend to any other property of the Company or any
Restricted Subsidiary of the Company and the principal amount of the Indebtedness secured by such
Lien is not increased, (xiv) judgment Liens not giving rise to an Event of Default so long as such
Lien is adequately bonded and any appropriate legal proceedings that may have been initiated for
the review of such judgment, decree or order shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired, (xv) Liens securing
obligations of the Company under Hedging Obligations permitted to be incurred under clause (vii) of
the second paragraph of Section 4.09 hereof or any collateral for the Indebtedness to which such
Hedging Obligations relate, (xvi) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person’s obligations in respect of banker’s acceptances issued
or credited for the account of such Person to facilitate the purchase, shipment or storage of such
inventory or goods, (xvii) Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property relating to such letters of credit
and products and proceeds thereof, (xviii) Liens arising out of consignment or similar arrangements
for the sale of goods in the ordinary course of business, (xvix) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods, (xx) Liens securing other Indebtedness not exceeding $25.0 million
at any time outstanding, (xxi) Liens securing Permitted Refinancing Indebtedness, provided that
such Liens do not extend to any other property of the Company or any Restricted Subsidiary of the
Company and the principal amount of the Indebtedness secured by such Lien is not increased, and
(xxii) Liens on the Equity Interests of Unrestricted Subsidiaries securing obligations of
Unrestricted Subsidiaries not otherwise prohibited by the Indentures.




          “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that: (i) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount of (or accreted value, if applicable), plus accrued interest or premium
(including any make-whole premium), if any, on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred in connection
therewith), (ii) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; provided that if the original maturity date of such Indebtedness is
after the Stated Maturity of the Notes, then such Permitted






11









 







Refinancing Indebtedness shall have a maturity at least 180 days after the Notes, (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in
right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, and
(iv) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the
obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.




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




          “QIB” means a “qualified institutional buyer” as defined in Rule 144A.




          “Qualified Proceeds” means any of the following or any combination of the following: (i) any
Cash Equivalents other than (A) currency of any sovereign nation other than the United Stated and
(B) certificates of deposit, eurodollar time deposits, bankers’ acceptances and overnight bank
deposits with any commercial bank organized under the laws of a foreign country, (ii) any
liabilities (as would be shown on the Company’s or such Restricted Subsidiary’s balance sheet if
prepared in accordance with GAAP on the date of the corresponding Asset Sale), of the Company or
any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to
a customary novation agreement that releases or indemnifies the Company or such Restricted
Subsidiary from further liability, (iii) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 90 days after such Asset Sale (to the extent of the
cash received in that conversion), (iv) long-term assets that are used or useful in a Permitted
Business, and (v) all or substantially all of the assets of, or a majority of the Voting Stock of,
any Permitted Business; provided, however, that in the case of clauses (iv) and (v) above, the
Asset Sale transaction shall be with a non-Affiliate and the amount of long-term assets or Voting
Stock received in the Asset Sale transaction shall not exceed 10% of the consideration received.




          “Receivables Program” means, with respect to any Person, an agreement or other arrangement or
program providing for the advance of funds to such Person against the pledge, contribution, sale or
other transfer of encumbrances of Receivables Program Assets of such Person or such Person and/or
one or more of its Subsidiaries.




          “Receivables Program Assets” means all of the following property and interests in property,
including any undivided interest in any pool of any such property or interests, whether now
existing or existing in the future or hereafter arising or acquired: (i) accounts, (ii) accounts
receivable, general intangibles, instruments, contract rights, documents and chattel paper
(including, without limitation, all rights to payment created by or arising from sales of goods,
leases of goods, or the rendition of services, no matter how evidenced, whether or not earned by
performance), (iii) all unpaid seller’s or lessor’s rights (including, without limitation,
rescission, replevin, reclamation and stoppage in transit) relating to any of the foregoing or
arising therefrom, (iv) all rights to any goods or merchandise represented by any of the foregoing
(including, without limitation, returned or repossessed goods), (v) all reserves and credit
balances with respect to any such accounts receivable or account debtors, (vi) all letters of
credit, security or Guarantees of any of the foregoing, (vii) all insurance policies or reports
relating to any of the foregoing, (viii) all collection or deposit accounts relating to any of the
foregoing, (ix) all books and records relating to any of the foregoing, (x) all instruments,
contract rights, chattel paper, documents and general intangibles relating to any of the foregoing,
and (xi) all proceeds of any of the foregoing.







12









 








          “Receivables Program Debt” means, with respect to any Person, the unreturned portion of the
amount funded by the investors under a Receivables Program of such Person.




          “Registration Rights Agreement” means the Registration Rights Agreement, dated as of May 4,
2010, by and among the Company and the other parties named on the signature pages thereof, as such
agreement may be amended, restated, supplemented or otherwise modified from time to time.




          “Regulation S” means Regulation S promulgated under the Securities Act.




          “Regulation S Global Note” means the Global Note representing the Notes offered and sold
outside the United States in reliance on Regulation S.




          “Reinvestment Rate” means 0.50% plus the arithmetic mean of the yields under the respective
headings “This Week” and “Last Week” published in the Statistical Release under the caption
“Treasury Constant Maturities” for the maturity (rounded to the nearest month) corresponding to the
maturity of the principal being prepaid. If no maturity exactly corresponds to such maturity,
yields for the two published maturities most closely corresponding to such maturity shall be
calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month. For the purpose of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of determination of the Make-Whole
Amount shall be used.




          “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Services Department of the Trustee (or any successor group of the Trustee) or any
other officer of the Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of and familiarity with
the particular subject.




          “Restricted Definitive Note” means a definitive Note substantially in the form of Exhibit A
attached hereto that does not bear the Global Note Legend nor the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that bears the Restricted Notes Legend.




          “Restricted Global Note” means a permanent global Note substantially in the form of Exhibit A
attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that bear the Restricted
Notes Legend.




          “Restricted Investment” means any Investment other than a Permitted Investment.




          “Restricted Notes Legend” means the legend set forth in Section 2.06(g)(i) to be placed on all
Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.




          “Restricted Period” with respect to any Restricted Global Note, means the 40 consecutive days
beginning on and including the later of (i) the commencement of the offering of the Notes to
persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
the date of the issuance of the Initial Notes.




          “Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.




          “Rule 144” means Rule 144 promulgated under the Securities Act.




13









 








          “Rule 144A” means Rule 144A promulgated under the Securities Act.




          “SEC” means the Securities and Exchange Commission.




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




          “Shelf Registration Statement” means the Shelf Registration Statement as defined in the Registration Rights Agreement.




          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Act, as such Regulation is in effect on the date hereof assuming that
the Company were the “registrant” for purposes of such definition; provided that in no event shall a “Significant Subsidiary” include (i) any
direct or indirect Subsidiary of the Company created for the primary purpose of facilitating one or more Receivables Programs or
holding or purchasing inventory, (ii) any non-operating Subsidiary which does not have any liabilities to Persons other than the Company or
its Subsidiaries, or (iii) any Unrestricted Subsidiary.




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




          “Statistical Release” means the statistical release designated “H.15(519)” or any successor publication which
is published weekly by the Federal Reserve System and which establishes yields on actively traded U.S. government securities adjusted
to constant maturities or, if such statistical release is not published at the time of any determination hereunder, then such reasonably comparable
index which shall be designated by the Company.




          “Strategic Investment” means any Investment in any Person (other than an Unrestricted Subsidiary) whose primary business
is related, ancillary or complementary to a Permitted Business, and such Investment is determined in good faith by the Board of Directors
(or senior officers of the Company to whom the Board of Directors has duly delegated the authority to make such a determination), whose determination
shall be conclusive and evidenced by a resolution, to promote or significantly benefit the businesses of the Company and its Restricted Subsidiaries
on the date of such Investment; provided that, with respect to any Strategic Investment or series of related Strategic Investments involving aggregate
consideration in excess of $10.0 million, the Company shall deliver to the Trustee a resolution of the Board of Directors of the Company set forth in an
Officer’s Certificate certifying that such Investment qualifies as a Strategic Investment pursuant to this definition.




          “Subsidiary” means, with respect to any Person: (i) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination thereof), and (ii) any partnership (A) the sole general
partner or the managing general partner of which is such Person or a Subsidiary of such Person or (B) the only general partners of which
are such Person or of one or more Subsidiaries of such Person (or any combination thereof).




          “substantially concurrent” means, with respect to any two or more events, the occurring of such events within 90 days of each other.





14












 





          “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on
the date on which this Indenture is qualified under the TIA.




          “Total Tangible Assets of the Foreign Subsidiaries” means, as of any date, the total assets of
all of the Foreign Subsidiaries of the Company as of such date less the amount of the intangible
assets of the Foreign Subsidiaries of the Company as of such date.




          “Trustee” means the party named as such above until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.




          “Unrestricted Definitive Note” means a definitive Note substantially in the form of Exhibit A
attached hereto that does not bear the Global Note Legend nor the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that does not bear the Restricted Notes Legend.




          “Unrestricted Global Note” means a permanent global Note substantially in the form of Exhibit
A attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do not bear the
Restricted Notes Legend.




          “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent
that such Subsidiary: (i) has no Indebtedness other than Non-Recourse Debt, (ii) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (A) to subscribe for additional Equity Interests or (B) to maintain or preserve
such Person’s financial condition or to cause such Person to achieve any specified levels of
operating results, (iii) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted Subsidiaries, and (iv) has at
least one director on its board of directors that is not a director or executive officer of the
Company or any of its Restricted Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Company or any of its Restricted Subsidiaries.




          Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers’ Certificate certifying that such designation complied
with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the
Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred
as of such date under Section 4.09 hereof, the Company shall be in default of such covenant. The
Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period; and (ii) no Default or Event of
Default would be in existence following such designation.




          “U.S. Person” means a U.S. Person as defined in Rule 902(k) of Regulation S under the
Securities Act




15









 








          “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing (i) the sum of the products obtained by multiplying (A) the
amount of each then remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (B) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment, by (ii) the then outstanding principal amount of such Indebtedness.




          “Wholly Owned Restricted Subsidiary” of any Person means a Restricted Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or similar shares required by law to be held by third parties) shall
at the time be owned by such Person and/or by one or more Wholly Owned Restricted Subsidiaries of
such Person.




Section 1.02. Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Additional Interest”

	 	 	6.02	 
	“Affiliate Transaction”

	 	 	4.11	 
	“Asset Sale”

	 	 	4.10	 
	“Asset Sale Offer”

	 	 	3.09	 
	“Authentication Order”

	 	 	2.02	 
	“Calculation Date”

	 	 	1.01	 
	“Change of Control Offer”

	 	 	4.14	 
	“Change of Control Payment”

	 	 	4.14	 
	“Change of Control Payment Date”

	 	 	4.14	 
	“Covenant Defeasance”

	 	 	8.03	 
	“Event of Default”

	 	 	6.01	 
	“Excess Proceeds”

	 	 	4.10	 
	“incur”

	 	 	4.09	 
	“Legal Defeasance”

	 	 	8.02	 
	“Offer Amount”

	 	 	3.09	 
	“Offer Period”

	 	 	3.09	 
	“Paying Agent”

	 	 	2.03	 
	“Permitted Debt”

	 	 	4.09	 
	“Purchase Date”

	 	 	3.09	 
	“Reference Period”

	 	 	4.09	 
	“Registrar”

	 	 	2.03	 
	“Restricted Payments”

	 	 	4.07	 
	“Trustee”

	 	 	8.05	 






Section 1.03. Incorporation by Reference of Trust Indenture Act




          Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.







16









 








          The following TIA terms used in this Indenture have the following meanings:




          “indenture securities” means the Notes;




          “indenture security Holder” means a Holder of a Note;




          “indenture to be qualified” means this Indenture;




          “indenture trustee” or “institutional trustee” means the Trustee; and




          “obligor” on the Notes and the Note Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.




          All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.




Section 1.04. Rules of Construction.




          Unless the context otherwise requires:




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




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




          (c) “or” is not exclusive;




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




          (e) provisions apply to successive events and transactions; and




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




ARTICLE 2

THE NOTES




Section 2.01. Form and Dating.




               (a) General. The Notes and the Trustee’s certificate of authentication shall be substantially
in the form of Exhibit A hereto. The Initial Notes will be (i) offered and sold by the Company
pursuant to the Purchase Agreement, dated April 29, 2010 and (ii) distributed initially only to (A)
QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such Initial
Notes may thereafter be transferred only in accordance with the provisions of this Indenture. The
Notes may have notations, legends or endorsements required by law, stock exchange rule or usage.
Each Note shall be dated the date of its authentication. The Notes shall be in denominations of
$2,000 and integral multiples of $1,000 thereafter.



          The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent






17









 







any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.




          (b) Global Notes. The Notes issued in global form, without interest coupons, shall be
substantially in the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the “Schedule of Exchanges of Interests in the Global Note” attached thereto).





     (i) The Notes offered and sold to QIBs in reliance on Rule 144A shall be issued
initially in the form of one or more 144A Global Notes, which shall be deposited with, or on
behalf of, the Depositary, or will remain in the custody of the Trustee pursuant to an
agreement between the Depositary and the Trustee.




     (ii) The Notes offered and sold in reliance on Regulation S shall be issued initially
in the form of one or more Regulation S Global Notes, which shall be deposited with, or on
behalf of, a custodian for the Depositary, as described in Section 2.01(b)(i) above, for
credit to the respective accounts of the purchasers (or to such other accounts as they may
direct) at Euroclear or Clearstream.




     (iii) Unrestricted Global Notes shall be issued in accordance with Section 2.06(b)(vi),
2.06(d)(ii), 2.06(d)(iii) and 2.06(f) and shall be deposited, duly executed by the Company
and authenticated by the Trustee as hereinafter provided.




     (iv) Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto).



     Each Global Note shall represent such of the outstanding Notes as shall be specified therein
and each shall provide that it shall represent the aggregate principal amount of outstanding Notes
from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.



Section 2.02. Execution and Authentication.




     One Officer shall sign the Notes for the Company by manual or facsimile signature.



     If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.



     A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.



     The Trustee shall, upon a written order of the Company signed by two Officers (an
“Authentication Order”), authenticate Notes for original issue up to the aggregate principal amount
stated in paragraph 4 of the Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof.



18









 





          The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Company.




Section 2.03. Registrar and Paying Agent.




          The Company shall maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for
payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.




          The Company initially appoints The Depository Trust Company to act as Depositary with respect
to any Global Notes.




          The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to any Global Notes.




Section 2.04. Paying Agent to Hold Money in Trust.




     The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium or interest and Additional Interest, if any, on
the Notes. While any such default continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.



Section 2.05. 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 all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA
§ 312(a).




Section 2.06. Transfer and Exchange.




          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a






19









 







successor Depositary or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Company for Definitive Notes only if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that
it ceases to be a clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 90 days after the date of such notice
from the Depositary or of such cessation, (ii) the Company in its sole discretion determines that
the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee or (iii) an Event of Default has occurred or is
continuing. Global Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as provided in Section
2.06(b), (c) or (f) hereof.




          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with subparagraphs (i) through (vi)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Restricted Notes Legend. Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).




     (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar (A) a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged and (B) instructions given in
accordance with the Applicable Procedures containing information regarding the Participant
account to be credited with such increase. Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in an Agent’s Message delivered in accordance with the Applicable
Procedures or a Letter of Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture and the Notes
or otherwise applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.06 hereof. Transfers by an
owner of a beneficial interest in the Rule 144A Global to a transferee who takes delivery of
such interest through the Regulation S Global Note, whether before or after the expiration
of the Restricted Period, shall be made only upon receipt by the Trustee of a certification
from the transferor to the effect that such transfer is being made in accordance with
Regulation S or, after



20









 






the expiration of the Restricted Period, if available, Rule 144 under the Securities
Act and that, if such transfer is being made prior to the expiration of the Restricted
Period, the interest transferred shall be held immediately thereafter through Euroclear or
Clearstream.




     (iii) Restrictions on Transfer of Regulation S Global Note




          (A) Prior to the expiration of the Restricted Period, interests in the
Regulation S Global Note may only be held through Euroclear or Clearstream. Prior to
expiration of the Restricted Period, transfers by an owner of a beneficial interest
in the Regulation S Global Note to a transferee who takes delivery of such interest
through the 144A Global Note shall be made only in accordance with Applicable
Procedures and upon receipt the Trustee of a written certification from the
transferor of the beneficial interest in the form provided by Exhibit B or as
otherwise provided by the Company in accordance with law to the effect that such
transfer is being made a person whom the transferor reasonably believes is a within
the meaning of Rule 144A in a transaction meeting requirements of Rule 144A. Such
certification shall not be required after the expiration of the Restricted Period.




          (B) Upon the expiration of the Restricted Period, beneficial ownership
interests in the Regulation S Note shall be transferable in accordance with law and
the other terms of this Indenture.




     (iv) Other Transfer of Beneficial Interests to Another Restricted Global Note. A
beneficial interest in any Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted Global Note if
the transfer complies with the requirements of Section 2.06(b)(ii) above and delivers a
certificate in the form of Exhibit B hereto.




     (v) Transfer and Exchange of Beneficial Interests in Global Notes to Definitive Notes.
In the event that a Global Note is exchanged for Definitive Notes in accordance with the
terms of this Indenture (including Section 2.06(a)) prior to the consummation of the
Exchange Offer or the effectiveness of the Shelf Registration Statement with respect to such
Notes, such Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.06(b), (c), (d) and (e)
(including the certification requirements set forth therein intended to ensure that such
transfers comply with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such other procedures as may
from time to time be adopted by the Company reasonably necessary to comply with applicable
law.




     (vi) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in the Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) above and:




          (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in an Agent’s Message in accordance with the
Applicable Procedures or in a Letter of Transmittal or otherwise via the
Depositary’s book entry system that it is



21









 






not (1) a broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;




          (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




          (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




          (D) the Registrar receives the following:




(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item 1(a) thereof; or




(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item 4
thereof;




          and, in each such case set forth in this subparagraph (D), if the Company or the
Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Restricted Notes Legend are no longer required in order to maintain
compliance with the Securities Act.



          If any such transfer is effected pursuant to subparagraph (A), (B) or (D) above at a time when
an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one
or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (A), (B) or (D) above.




          Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.




          (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.





          (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, in each
case in accordance with the terms of this Indenture (including Section 2.06(a)), then, upon
receipt by the Registrar of the following documentation:




               (A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a



22









 






certificate from such holder in the form of Exhibit C hereto, including the
certifications in item 2(a) thereof;




               (B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item 1 thereof;




               (C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction and in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item 2 thereof; or




               (D) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item 3 thereof,




     the Trustee shall cause the aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in the instructions a
Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in
whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i)
shall bear the Restricted Notes Legend and shall be subject to all restrictions on transfer
contained therein.




     (ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Note in
accordance with the terms of this Indenture (including Section 2.06(a)) only if:




               (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in an Agent’s Message in accordance with Applicable Procedures or in a
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;




               (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




               (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




               (D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule 144



23









 






under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item 4(a) thereof;




               (E) the Registrar receives the following:




(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive
Note that does not bear the Restricted Notes Legend, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item 1(b) thereof; or




(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a Definitive Note that
does not bear the Restricted Notes Legend, a certificate from such
holder in the form of Exhibit B hereto, including the certifications
in item 4 thereof;




               and, in each such case set forth in this subparagraph (E), if the Company or the
Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Restricted Notes Legend are no longer required in order to maintain compliance
with the Securities Act.




               (iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note in accordance with the terms of this Indenture (including Section 2.06(a)),
then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person designated in the instructions an
Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall be registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Unrestricted Definitive Notes to the Persons in whose names such
Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear the Restricted
Notes Legend.




               (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




               (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:




               (A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item 2(b)
thereof;



24









 






               (B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item 1 thereof;




               (C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction and in accordance with Rule 903 or Rule 904 under
the Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item 2 thereof; or




               (D) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item 3 thereof,




     the Trustee shall cancel the Restricted Definitive Note and increase or cause to be
increased the aggregate principal amount of the Restricted Global Note.




     (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:




               (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;




               (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




               (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




               (D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item 4(a) thereof;




               (E) the Registrar receives the following:




                    (1) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item 1(c) thereof; or




                    (2) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
4 thereof;



25









 






          and, in each such case set forth in this subparagraph (E), if the Company or the
Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Restricted Notes Legend are no longer required in order to maintain compliance
with the Securities Act.




     Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii),
the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.




          (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.




     If any such exchange or transfer from an Unrestricted Definitive Note to a beneficial interest
is effected pursuant to subparagraphs (ii)(B), (ii)(E) or (iii) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.



          (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.06(e).





          (i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:




               (A) if the transfer will be made pursuant to Rule 144A under the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item 1 thereof;




               (B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item 2 thereof; and




               (C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item 3 thereof, if applicable.



26









 






          (ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:




               (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;




               (B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;




               (C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or




               (D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item 4(a) thereof;




               (E) the Registrar receives the following:




                    (1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item 1(d) thereof; or




                    (2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item 4 thereof;




          and, in each such case set forth in this subparagraph (E), an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Restricted Notes Legend are no longer required in order to maintain compliance
with the Securities Act.




          (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a
transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.



                    (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes






27









 







in an aggregate principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal that (1) they are not broker-dealers, (2) they are not participating in a
distribution of the Exchange Notes and (3) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the
appropriate principal amount.




          (g) Legends. The following legends shall appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.




          (i) Restricted Notes Legend.





          (A) Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:




“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE ACQUIRER



               (1) REPRESENTS THAT




               (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH
SUCH ACCOUNT OR




               (B) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT) AND




               (2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN,
EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ONLY




               (A) TO THE COMPANY,




               (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE
UNDER THE SECURITIES ACT,




               (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT,



28









 






               (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, OR




               (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.




          PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR
(2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE
OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE
REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE, THE COMPANY RESERVES
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”




          (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(vi), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Restricted Notes Legend.




     (ii) Global Note Legend. Each Global Note shall bear a legend in substantially the
following form:




“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06(h) OR SECTION 9.05 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3)
THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.




UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY THE
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR



29









 






TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OR DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”



          (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.





     (i) General Provisions Relating to Transfers and Exchanges.




     (i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s order or
at the Registrar’s request.




     (ii) No service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.14 and 9.05 hereof).




     (iii) The Registrar shall not be required to register the transfer of or exchange any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




     (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.




     (v) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection or (B) to register the transfer of or to exchange
a Note between a record date and the next succeeding Interest Payment Date.




     (vi) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of



30









 






and interest and Additional Interest, if any, on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by notice to the
contrary.




     (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.02 hereof.




     (viii) All certifications or certificates required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.



Section 2.07. Replacement Notes.




          If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a
Note.




          Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.




Section 2.08. Outstanding Notes.




          The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note.




          If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.




          If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.




          If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease
to accrue interest.




Section 2.09. Treasury Notes.




          In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, shall be considered as though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Notes that the Trustee knows are so owned shall be so disregarded.







31









 








Section 2.10. Temporary Notes.




          Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.




          Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.




Section 2.11. Cancellation.




          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall destroy canceled
Notes (subject to the record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.




Section 2.12. 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 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. 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 payment date for such defaulted interest. 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 payment date and the amount of such interest to be paid.




ARTICLE 3

REDEMPTION AND REPAYMENT




Section 3.01. Notices to Trustee.




          If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days (or such shorter period as
may be acceptable to the Trustee) but not more than 60 days before a redemption date, an Officers’
Certificate setting forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.




Section 3.02. Selection of Notes to Be Redeemed.




          If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee shall select the Notes to be redeemed or purchased among the Holders of the Notes
in compliance with the requirements of the principal national securities exchange, if any, on which
the Notes






32









 







are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance
with any other method the Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.




          The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of
$1,000 thereafter; except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for redemption.




Section 3.03. Notice of Redemption




          Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days
before a redemption date, the Company shall deliver or cause to be delivered, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address.




          The notice shall identify the Notes to be redeemed and shall state:




               (a) the redemption date;



               (b) the redemption price;



               (c) if any Note is being redeemed in part, the portion of the principal amount of such Note to
be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon cancellation of the original
Note;



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



               (e) that Notes called for redemption must be surrendered to the Paying Agent to collect the
redemption price;



               (f) that, unless the Company defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the redemption date;



               (g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes
called for redemption are being redeemed; and



               (h) that no representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Notes.



          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days (or such shorter period as may be acceptable to the Trustee) prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding paragraph.







33









 








Section 3.04. Effect of Notice of Redemption.




          Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.




Section 3.05. Deposit of Redemption Price.




          Prior to 10:00 a.m. Eastern Time on the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued
interest and Additional Interest, if any, on all Notes to be redeemed on that date. The trustee or
the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest and Additional Interest, if any, on, all Notes to be redeemed.




          If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest and Additional Interest, if
any, shall be paid to the Person in whose name such Note was registered at the close of business on
such record date. If any note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption date until such principal is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.




Section 3.06. Notes Redeemed in Part.




          Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the
Company’s written request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.




Section 3.07. Optional Redemption.




          (a) Except as set forth in paragraphs, (c) and (d) below, the Notes will not be redeemable at
the option of the Company prior to May 1, 2014.




          (b) At any time on or after May 1, 2014, the Notes may be redeemed at the redemption prices
set forth below, plus accrued and unpaid interest and Additional Interest, if any, to, but
excluding, the redemption date (subject to the right of holders of record on the relevant record
date to receive interest due on the relevant interest payment date). The following redemption
prices are for the Notes redeemed during the 12-month period commencing on May 1 of the years set
forth below, and are expressed as percentages of principal amount:




	 	 	 	 	 
	Year	 	Redemption Price
	2014

	 	 	103.688	%
	2015

	 	 	101.844	%
	2016 and thereafter

	 	 	100.000	%






          (c) At any time, and from time to time, prior to May 1, 2014, the Notes are subject to
redemption, as a whole or in part, at the election of the Company, at a price equal to the sum of
(i) 100%






34









 









of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if
any, to, but excluding, the redemption date plus (ii) the Make-Whole Amount, if any.



          (d) At any time, and from time to time, prior to May 1, 2013, the Company may redeem up to a
maximum of 35% of the aggregate principal amount of the Notes issued hereunder with the proceeds of
one or more Equity Offerings at a redemption price (expressed as a percentage of principal amount)
equal to 107.375% of the principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to, but excluding, the redemption date (subject to the rights of Holders of
record on the relevant interest record date to receive interest due on the relevant interest
payment date); provided, however, that after giving effect to such redemption, at least 65% of the
original aggregate principal amount of the Notes (excluding Notes held by the Company and its
Subsidiaries) remains outstanding. Any such redemption shall be made within 45 days of the closing
of such Equity Offering.




          (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof.




Section 3.08. No Mandatory Redemption.




          The Company shall not be required to make mandatory redemption payments with respect to the
Notes.




Section 3.09. Offer to Purchase by Application of Excess Proceeds.




          In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence
an offer to all Holders to purchase Notes and to all holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set forth in Section 4.10 hereof (an
“Asset Sale Offer”), it shall follow the procedures specified below.




          The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Purchase Date”), the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof and such other Indebtedness that is pari passu with the
Notes containing provisions similar to Section 4.10 hereof that may be purchased out of the Excess
Proceeds (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in
the same manner as interest payments are made.




          If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Additional Interest, if any, shall be
paid to the Person in whose name a Note is registered at the close of business on such record date,
and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.




          Upon the commencement of an Asset Sale Offer, the Company shall deliver a notice to the
Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:




               (a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10
hereof and the length of time the Asset Sale Offer shall remain open;



35









 





               (b) the Offer Amount, the purchase price and the Purchase Date;



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



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



               (e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect
to have Notes purchased in integral multiples of $2,000 or an integral multiple of $1,000
thereafter only;



               (f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be
required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the notice at least three
days before the Purchase Date;



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



               (h) that, if the aggregate principal amount of Notes surrendered by Holders and Indebtedness
that is pari passu with the Notes containing provisions similar to Section 4.10 exceeds the Offer
Amount, the Company shall select the Notes and such other pari passu Indebtedness to be purchased
on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $2,000, or integral multiples of $1,000 thereafter, shall be purchased);
and



               (i) that Holders whose Notes were purchased only 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).



          On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment,
on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the terms of this
Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note
to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered.
Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.







36









 








ARTICLE 4

COVENANTS




Section 4.01. Payment of Notes.




          The Company shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any,
interest and Additional Interest, if any, shall be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.




          The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; 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 period) at the same rate to the extent lawful.




Section 4.02. Maintenance of Office or Agency.




          The Company shall maintain an office or agency (which may be an office of the Trustee or an
Affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.




          The Company may also from time to time designate one or more other 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, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency for such purposes.
The Company shall give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.




          The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03.




Section 4.03. Reports.




          Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company shall file with the SEC, if permitted, all of the reports and other
information as it would be required to file with the SEC by Sections 13(a) and 15(d) under the
Exchange Act as if it were subject thereto. The Company shall supply the Trustees and each Holder
of Notes, or shall supply to the Trustees for forwarding to each Holder of Notes, without cost to
any such Holder, copies of such reports and other information (whether or not so filed). The
Company shall at all times comply with TIA § 314(a).





37












 





Section 4.04. Compliance Certificate.




               (a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes is prohibited or if
such event has occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.



               (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.



          Any failure of the Company to take any action within a period of time explicitly or implicitly
required by this Section 4.04 or Section 4.03 should be deemed cured upon the Company’s taking such
action.




Section 4.05. Taxes.




          The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.




Section 4.06. 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 wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and each of the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.




Section 4.07. Restricted Payments.




               (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly:




          (i) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,



38









 






without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect
holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the
Company);




          (ii) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company or any Restricted
Subsidiary of the Company (other than any such Equity Interests owned by the Company or any
Restricted Subsidiary of the Company);




          (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes, including
the Convertible Subordinated Notes, except (A) a payment of interest or principal at the
Stated Maturity thereof, (B) the purchase, redemption, defeasance or other acquisition or
retirement thereof for value in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the date of
purchase, redemption, defeasance, acquisition or retirement, or (C) the purchase redemption,
defeasance or other acquisition or retirement of the Company’s 2.50% Convertible Senior
Subordinated Notes due May 15, 2011; or




          (iv) make any Restricted Investment (all such payments and other actions set forth in
clauses (i) through (iv) above being collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment:




          (A) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;




          (B) the Company would, at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof; and




          (C) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after the
Issue Date (excluding Restricted Payments permitted by Section 4.07(b)(ii), (iii),
(iv), (vii) and (ix)), is less than the sum, without duplication, of:




          (1) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of the fiscal quarter
commencing on January 1, 2010 to the end of the Company’s most recently
ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such Consolidated Net Income
for such period is a deficit, less 100% of such deficit), plus




          (2) 100% of the aggregate net cash proceeds received by the Company
since January 1, 2010 as a contribution to its common equity capital or from
the issue or sale of Equity Interests of the Company (other than
Disqualified Stock) (other than Equity Interests (or Disqualified Stock or
debt securities) sold to a Subsidiary of the Company), plus



39









 






          (3) to the extent that any Restricted Investment that was made after
the Issue Date is sold for cash or otherwise liquidated or repaid for cash,
the lesser of (I) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (II) the initial
amount of such Restricted Investment, plus




          (4) the amount by which (I) Indebtedness (other than Disqualified
Stock) of the Company or any Restricted Subsidiary (i) issued after the
Issue Date or (ii) consisting of the Convertible Subordinated Notes, in each
case, is reduced on the Company’s consolidated balance sheet (if prepared in
accordance with GAAP as of the date of determination) and (II) Disqualified
Stock of the Company issued after the Issue Date (held by any Person other
than any Restricted Subsidiary) is reduced (measured with reference to its
redemption or repurchase price), in each case, as a result of the conversion
or exchange of any such Indebtedness or Disqualified Stock into Equity
Interests (other than Disqualified Stock) of the Company, less, in each
case, any cash distributed by the Company upon such conversion or exchange,
plus




          (5) to the extent that any Investment in any Unrestricted Subsidiary
that was made after the Issue Date is sold for cash or otherwise liquidated,
repaid for cash or such Unrestricted Subsidiary is converted into a
Restricted Subsidiary, the lesser of (I) an amount equal to the sum of (i)
the net reduction in Investments in Unrestricted Subsidiaries resulting from
dividends, repayments of loans or advances or other transfers of assets, in
each case to the Company or any Restricted Subsidiary from Unrestricted
Subsidiaries, and (ii) the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary, and (II) the remaining amount of the
Investment in such Unrestricted Subsidiary which has not been repaid or
converted into cash or assets.




     (b) The preceding provisions will not prohibit:




     (i) the payment of any dividend within 60 days after the date of declaration thereof,
if at the date of declaration no Default has occurred and is continuing or would be caused
thereby and such payment would have complied with the provisions of this Indenture;




     (ii) the making of any payment on or with respect to, or in connection with, the
redemption, repurchase, retirement, defeasance or other acquisition of, any Indebtedness of
the Company or any Restricted Subsidiary that is subordinated to the Notes or of any Equity
Interests of the Company or any Restricted Subsidiary in exchange for, or out of the net
cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of, Equity Interests (other than Disqualified Stock) of the Company or any
subordinated Indebtedness of the Company; provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from Section 4.07(a)(iv)(C)(2);




     (iii) the making of any payment on or with respect to, or in connection with, the
defeasance, redemption, repurchase or other acquisition of Indebtedness of the Company or
any Restricted Subsidiary that is subordinated to the Notes with the net cash proceeds from
the incurrence of Permitted Refinancing Indebtedness;



40









 






          (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the
holders of its common Capital Stock on a pro rata basis;




          (v) so long as no Default has occurred and is continuing or would be caused thereby,
the repurchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Restricted Subsidiary of the Company held by any employee of
the Company or any Restricted Subsidiary pursuant to any employee equity subscription
agreement, stock ownership plan or stock option agreement in effect from time to time;
provided that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $5.0 million in any twelve-month period;




          (vi) the making of any payment on or with respect to, or repurchase, redemption,
defeasance or other acquisition or retirement for value of the Convertible Subordinated
Notes or any future convertible notes of the Company solely by the honoring by the Company
of any request to convert such notes into capital stock (other than Disqualified Stock) by a
holder of the Convertible Subordinated Notes or such future convertible notes (including the
payment by the Company of any cash in lieu of fractional shares) in accordance with their
terms;




          (vii) that portion of Investments the payment for which consists exclusively of Equity
Interests (other than Disqualified Stock) of the Company;




          (viii) so long as no Default has occurred and is continuing or would be caused thereby,
other Restricted Payments in an aggregate amount not to exceed $125.0 million;




          (ix) the repurchase of Equity Interests of the Company that may be deemed to occur upon
the exercise of stock options if such Equity Interests represent a portion of the exercise
price thereof;




          (x) any payments to one or more stockholders of the Company in connection with settling
stockholder obligations for income taxes in respect of tax periods ending prior to the
conversion of the Company from “S” corporation status to “C” corporation status;




          (xi) in the case of an Asset Sale, any asset sale offer required under the terms of
other Indebtedness of the Company after the Company has complied with its obligations to the
Holders of the Notes under Section 4.10; and




          (xii) in the case of a Change of Control, any Change of Control Offer to repurchase the
Convertible Subordinated Notes after the Company has complied with its obligations to the
Holders of the Notes under Section 4.14.



     The amount of all Restricted Payments (other than cash) shall be the fair market value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to be valued by this
covenant with a fair market value in excess of $5.0 million shall be evidenced by an Officer’s
Certificate which shall be delivered to the Trustee. Not later than the date of making any
Restricted Payment valued in excess of $5.0 million, the Company shall deliver to the Trustee an
Officers’ Certificate stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this Section 4.07 were computed, together with a copy of
any fairness opinion or appraisal required by this Indenture.



41









 





Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to





          (i) (A) pay dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (I) on its Capital Stock or (II) with respect to any other interest
or participation in, or measured by, its profits or (B) pay any indebtedness owed to the
Company or any of its Restricted Subsidiaries;




          (ii) make loans or advances to the Company or any of its Restricted Subsidiaries; or




          (iii) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.



          (b) The preceding restrictions in Section 4.08(a) will not apply to encumbrances or
restrictions existing under or by reason of:





          (i) Existing Indebtedness as in effect on the date hereof and any amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are no more restrictive,
taken as a whole, with respect to such dividend and other payment restrictions than those
contained in such Existing Indebtedness, as in effect on the date hereof;




          (ii) this Indenture, the Notes and the Notes Guarantees;




          (iii) applicable law;




          (iv) any instrument governing or relating to Permitted Bank Debt or Indebtedness of
Foreign Subsidiaries, in each case that meets the criteria specified in clauses (i) and
(xiii), respectively, of Section 4.09(b); provided, that the Board of Directors shall have
determined in good faith at the time that such encumbrance or restriction is created that
the encumbrance or restriction (A) would not reasonably be expected to impair the ability of
the Company to pay interest and Additional Interest, if any, on the Notes at their Stated
Maturity or to pay principal and accrued and unpaid interest and Additional Interest, if
any, on the Notes at their final Stated Maturity, and (B) is not materially more
disadvantageous to holders of the Notes than is customary in comparable financings;




          (v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred;




          (vi) customary nonassignment provisions in leases, licenses and other contracts entered
into in the ordinary course of business and consistent with past practices;



42









 






          (vii) purchase money obligations or Capital Lease Obligations for property acquired in
the ordinary course of business that impose restrictions on the property so acquired of the
nature described in Section 4.08(a)(iii);




          (viii) any agreement for the sale or other disposition of a Restricted Subsidiary that
restricts dividends, distributions, loans, advances or transfers by such Restricted
Subsidiary pending its sale or other disposition;




          (ix) Permitted Refinancing Indebtedness, provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are no more restrictive,
taken as a whole, than those contained in the agreements governing the Indebtedness being
refinanced;




          (x) agreements entered into with respect to Liens securing Indebtedness otherwise
permitted to be incurred pursuant to the provisions of Section 4.12 hereof that limit the
right of the Company or any of its Restricted Subsidiaries to dispose of the assets subject
to such Lien;




          (xi) provisions with respect to the disposition or distribution of assets or property
in joint venture agreements and other similar agreements entered into in the ordinary course
of business;




          (xii) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;




          (xiii) any Receivables Program; and




          (xiv) any restriction imposed pursuant to contracts for the sale of assets with respect
to the transfer of the assets to be sold pursuant to such contract.



Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and
will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company and any Restricted Subsidiary that is a Guarantor may incur
Indebtedness (including Acquired Debt), and the Company may issue Disqualified Stock, and any
Restricted Subsidiary that is a Guarantor may issue preferred stock, if the Consolidated Interest
Expense Coverage Ratio for the Company’s most recently ended four full fiscal quarters (the
“Reference Period”) for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred
stock is issued would have been at least 2.0 to 1, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, at the
beginning of such four-quarter period.




          (b) Clause (a) of this Section 4.09 will not prohibit the incurrence of any of the following
items of Indebtedness (collectively, “Permitted Debt”):





          (i) the incurrence by the Company and any Restricted Subsidiary of any Permitted Bank
Debt; provided that the aggregate principal amount of all Permitted Bank Debt at any one



43









 






time outstanding shall not exceed $100.0 million plus 85% of the consolidated accounts
receivable of the Company plus 50% of the consolidated inventory of the Company;




          (ii) the incurrence by the Company and its Subsidiaries of Existing Indebtedness;




          (iii) the incurrence by the Company and any Guarantor of Indebtedness represented by
the Notes and any Note Guarantees;




          (iv) the incurrence by the Company or any of its Restricted Subsidiaries of (A)
Indebtedness incurred for the purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment used in the business of
the Company or any of its Restricted Subsidiaries and (B) Capital Lease Obligations, in an
aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause
(iv), not to exceed the greater of $75.0 million and 10% of the Company’s Consolidated Net
Assets;




          (v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace, Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be incurred under Section 4.09(a) or clauses (ii), (iii), (v), (xiii)
or (xiv) of this Section 4.09(b);




          (vi) the incurrence by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided, however, that: (A) if the Company or any Guarantor is the obligor
on such Indebtedness and such Indebtedness is in favor of a Restricted Subsidiary other than
a Wholly Owned Restricted Subsidiary, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations with respect to the Notes in the case
of the Company, or the Note Guarantee and of such Guarantor, in the case of a Guarantor, and
(B)(I) any subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted
Subsidiary thereof and (II) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Wholly Owned Restricted Subsidiary thereof; shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);




          (vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations that are incurred for the purpose of fixing or hedging interest rate, commodity
or currency risk in the ordinary course of business for bona fide hedging purposes; provided
that the notional principal amount of any such Hedging Obligation with respect to interest
rates does not exceed the amount of Indebtedness or other liability to which such Hedging
Obligation relates;




          (viii) the Guarantee by the Company or any of the Guarantors of Indebtedness of the
Company or a Restricted Subsidiary of the Company that was permitted to be incurred by
another provision of this Section 4.09;




          (ix) the incurrence by the Company’s Unrestricted Subsidiaries of Non-Recourse Debt;
provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause
(ix);



44









 






          (x) the incurrence of Indebtedness solely in respect of performance, surety and similar
bonds or completion or performance Guarantees, to the extent that such incurrence does not
result in the incurrence of any obligation for the payment of borrowed money to others;




          (xi) the incurrence of Indebtedness arising from the agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary; provided, however, that: (A) such
Indebtedness is not reflected as a liability on the balance sheet of the Company or any
Restricted Subsidiary of the Company, and (B) the maximum assumable liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds, including non-cash
proceeds (the fair market value of such non-cash proceeds being measured at the time
received and without giving effect to any subsequent changes in value), actually received by
the Company and its Restricted Subsidiaries in connection with such disposition;




          (xii) the accrual of interest, accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock; provided, in each such case, that the amount
thereof is included in Consolidated Interest Expense of the Company as accrued;




          (xiii) the incurrence of Indebtedness by Foreign Subsidiaries in an amount not to
exceed 10% of the Total Tangible Assets of the Foreign Subsidiaries, taken as a whole; and




          (xiv) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance
or replace any Indebtedness incurred pursuant to this clause (xiv), not to exceed $75.0
million.



               (c) Indebtedness or preferred stock of any Person which is outstanding at the time such Person
becomes a Restricted Subsidiary of the Company (including upon designation of any Subsidiary or
other Person as a Restricted Subsidiary) or is merged with or into or consolidated with the Company
or a Restricted Subsidiary of the Company shall be deemed to have been incurred at the time such
Person becomes such a Restricted Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Restricted Subsidiary of the Company, as applicable.




               (d) The Company will not incur any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the Company unless such
Indebtedness is also contractually subordinated in right of payment to the Notes on substantially
identical terms; provided, however, that no Indebtedness of the Company shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the Company solely by
virtue of any Liens, Guarantees, maturity of payments of structural seniority.




               (e) For purposes of determining compliance with this Section 4.09, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described
in clauses (i) through (xiv) of Section 4.09(b) above, or is entitled to be incurred pursuant to
Section 4.09(a), the Company may, in its sole discretion, classify or reclassify such of
Indebtedness (or any part thereof) in any manner that complies with this Section 4.09 and such item
of Indebtedness shall be treated as having been incurred pursuant to only one of such clauses of
Section 4.09(b) or pursuant to Section 4.09(a).







45









 








          (f) For purposes of determining any particular amount of Indebtedness under this covenant,
Guarantees, Liens or obligations in support of letters of credit supporting Indebtedness shall not
be included to the extent such letters of credit are included in the amount of such Indebtedness.




          (g) Any increase in the amount of any Indebtedness solely by reason of currency fluctuations
shall not be considered an incurrence of Indebtedness for purposes of this covenant.




          (h) Accrual of interest and the payment of interest in the form of additional Indebtedness
shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.




Section 4.10. Asset Sales.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to:





          (i) sell, lease, convey or otherwise dispose of any assets or rights (including by way
of a sale-and-leaseback) other than sales of inventory in the ordinary course of business
(provided that the sale, lease, conveyance or other distribution of all or substantially all
of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be
governed by the provisions of Sections 4.14 and 5.01 hereof and not by Section 4.10(c));




          (ii) with respect to the Company, sell Equity Interests in any of its Subsidiaries;




          (iii) with respect to the Company’s Restricted Subsidiaries, issue Equity Interests
(each of the foregoing, an “Asset Sale”),




          unless (x) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market value
(evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate
delivered to the Trustee) of the assets sold or otherwise disposed of and (y) at least 75%
of the consideration received therefor by the Company or such Restricted Subsidiary is in
the form of cash or other Qualified Proceeds.



          (b) Notwithstanding clause (a) of this Section 4.10, the following shall not be deemed to be
Asset Sales:





          (i) any single transaction or series of related transactions that (A) involves assets
having a fair market value of less than $5.0 million or (B) results in net proceeds to the
Company and its Restricted Subsidiaries of less than $5.0 million;




          (ii) a transfer of assets between or among the Company and any Restricted Subsidiary;




          (iii) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to
another Wholly Owned Restricted Subsidiary;




          (iv) the sale, lease, conveyance or other disposition of any Receivable Program Assets
by the Company or any Restricted Subsidiary in connection with a Receivables Program;




          (v) the sale, lease, conveyance or other disposition of any inventory, receivables or
other current assets by the Company or any of its Restricted Subsidiaries in the ordinary
course of business;



46









 






          (vi) the granting of a Permitted Lien;




          (vii) the licensing by the Company or any Restricted Subsidiary of intellectual
property in the ordinary course of business or on commercially reasonable terms;




          (viii) the sale, lease, conveyance or other disposition of obsolete or worn out
equipment or equipment no longer useful in the Company’s business; and




          (ix) the making or liquidating of any Restricted Payment or Permitted Investment that
is permitted by Section 4.07 hereof.



          (c) Within 365 days after the receipt of any Net Proceeds from any Asset Sale, the Company (or
such Restricted Subsidiary) may apply such Net Proceeds from such Asset Sale, at its option, either





          (i) to repay Permitted Bank Debt, and if such Permitted Bank Debt is revolving debt, to
effect a corresponding commitment reduction thereunder;




          (ii) to acquire all or substantially all of the assets of, or a majority of the Voting
Stock of, another Permitted Business;




          (iii) to make a capital expenditure; or




          (iv) to acquire any other long-term assets that are used or useful in a Permitted
Business.




          Pending the final application of any such Net Proceeds, the Company (or such Restricted
Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from such
Asset Sale that are not finally applied or invested as provided in paragraphs (i) through
(iv) of this clause (c) will be deemed to constitute “Excess Proceeds.” Within five days of
each date on which the aggregate amount of Excess Proceeds exceeds $20 million, the Company
shall commence a pro rata Asset Sale Offer pursuant to Section 3.09 hereof to purchase the
maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an
offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest and Additional Interest, if any, to, but excluding, the date fixed for
the closing of such offer, in accordance with the procedures set forth in Section 3.09
hereof. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company (or such Subsidiary) may use such
deficiency for any purpose not otherwise prohibited by this Indenture. Upon completion of
such offer to purchase, the amount of Excess Proceeds will be deemed to be reset at zero.



Section 4.11. Transactions with Affiliates.




          (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any Affiliate
(each, an “Affiliate Transaction”), unless:







47









 









          (i) such Affiliate Transaction (when viewed together with related Affiliate
Transactions, if any) is on terms that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person; and




          (ii) the Company delivers to the Trustee




          (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with this covenant and that such
Affiliate Transaction has been approved by a majority of the disinterested members
of the Board of Directors (of which there must be at least one); and




          (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, an
opinion as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking
firm of national standing.



          (b) The following items shall not be deemed to be Affiliate Transactions and, therefore, will
not be subject to clause (a) of this Section 4.11:





          (i) any employment agreement or arrangement entered into by the Company or any of its
Restricted Subsidiaries or any employee benefit plan available to employees of the Company
and its Subsidiaries generally, in each case in the ordinary course of business and
consistent with the past practice of the Company or such Restricted Subsidiary;




          (ii) Affiliate Transactions between or among the Company and/or its Restricted
Subsidiaries;




          (iii) payment of reasonable directors fees to Persons who are not otherwise Affiliates
of the Company and indemnity provided on behalf of officers, directors and employees of the
Company or any of its Restricted Subsidiaries as determined in good faith by the Board of
Directors of the Company; and




          (iv) any Restricted Payments that are permitted by Section 4.07 hereof.



          (c) For purposes of this Section 4.11, any transaction or series of related Affiliate
Transactions between the Company or any Restricted Subsidiary and an Affiliate that is approved by
a majority of the disinterested members of the Board of Directors (of which there must be at least
one to utilize this method of approval) and evidenced by a board resolution or for which a fairness
opinion has been issued shall be deemed to be on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person and thus shall be
permitted under this Section 4.11.




Section 4.12. Liens.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness on
any asset now owned or hereafter acquired, except Permitted Liens, unless the Notes or any existing
Note



48









 




Guarantee of a Subsidiary subject to such Lien are equally and ratably secured with the
obligations so secured for as long as such Indebtedness will be so secured.




Section 4.13. Corporate Existence.




     Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries; provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the Holders of the Notes.



Section 4.14. Offer to Repurchase Upon Change of Control.




          (a) Upon the occurrence of a Change of Control, the Company shall make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 thereafter) of each Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and Additional Interest, if
any, to, but excluding, the date of purchase (the “Change of Control Payment”). Within 30 days
following any Change of Control, the Company shall deliver a notice to each Holder stating:





          (i) that the Change of Control Offer is being made pursuant to this Section 4.14 and
that all Notes tendered will be accepted for payment;




          (ii) the purchase price and the purchase date, which shall be no later than 30 business
days from the date such notice is mailed (the “Change of Control Payment Date”);




          (iii) that any Note not tendered will continue to accrue interest;




          (iv) that, unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;




          (v) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date;




          (vi) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes purchased;




          (vii) (vii) that Holders whose Notes are being purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes surrendered,
which



49









 






unpurchased portion must be equal to $2,000 in principal amount or an integral multiple
of $1,000 thereafter.



          (b) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes in connection with a Change of Control.




          (c) On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept
for payment all Notes or portions thereof properly tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered, and (iii) deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly deliver to each Holder of Notes so tendered payment in an amount equal to the
purchase price for the Notes, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered by such Holder, if any; provided, that each such new Note shall be
in a principal amount of $2,000 or an integral multiple of $1,000 thereafter. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.




          (d) Notwithstanding anything to the contrary in this Section 4.14, the Company shall not be
required to make a Change of Control Offer upon 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 Section 4.14 and Section 3.09 hereof and all other provisions of
this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.




Section 4.15. Limitation on Issuances and Sales of Capital Stock in Wholly Owned Subsidiaries.




     The Company (a) shall not, and shall not permit any of Wholly Owned Restricted Subsidiaries of
the Company to, transfer, convey, sell, lease or otherwise dispose of any Equity Interests in any
Wholly Owned Restricted Subsidiary of the Company to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company), unless (i) such transfer, conveyance, sale, lease or
other disposition is of all the Equity Interests in such Wholly Owned Restricted Subsidiary or
immediately following such transfer, conveyance, sale, lease or other disposition, the Wholly Owned
Restricted Subsidiary is a Restricted Subsidiary and (ii) the cash Net Proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance with Section 4.10(c) hereof,
and (b) shall not permit any Wholly Owned Restricted Subsidiary of the Company to issue any of its
Equity Interests (other than, if necessary, shares of its Capital Stock constituting directors’
qualifying shares) to any Person other than to the Company or a Wholly Owned Restricted Subsidiary
of the Company unless immediately following such issuance the Wholly Owned Restricted Subsidiary is
a Restricted Subsidiary.



Section 4.16. Payments for Consent.




     Neither the Company nor any of its Subsidiaries shall, directly or indirectly, pay or cause to
be paid any consideration to or for the benefit of any Holder of any Notes 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 or is paid to all Holders of the Notes that
consent, waive or agree to amend in the time frame set forth in the solicitation documents relating
to such consent, waiver or agreement.



50









 





Section 4.17. Future Subsidiary Guarantees.




     If the Company or any of its Restricted Subsidiaries shall acquire, create or capitalize a
Domestic Subsidiary after the date of this Indenture that is a Significant Subsidiary, then that
newly acquired, created or capitalized Subsidiary must become a Guarantor and execute a
supplemental indenture satisfactory to the Trustee and deliver an Opinion of Counsel, in accordance
with the terms of this Indenture, to the Trustee within 10 Business Days of the date on which it
was acquired or created. The form of such Supplemental Indenture is attached as Exhibit E hereto.



Section 4.18. Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary so long as such designation would not cause a Default hereunder. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed
to be an Investment made as of the time of such designation and will reduce the amount available
for Restricted Payments under Section 4.07(a)(iv)(C) hereof or Permitted Investments, as
applicable. All such outstanding Investments will be valued at their fair market value at the time
of such designation. That designation will only be permitted if such Restricted Payment would be
permitted at that time and if such Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be
a Restricted Subsidiary if the redesignation would not cause a Default hereunder.



Section 4.19. Limitation on Sale and Leaseback Transactions.




     The Company shall not, and shall not permit any of its Subsidiaries to, enter into any sale
and leaseback transaction; provided that the Company or any Restricted Subsidiary may enter into a
sale and leaseback transaction if (i) the Company or such Restricted Subsidiary, as applicable,
could have incurred Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction (if the lease is in the nature of an operating lease, otherwise the
amount of Indebtedness) under the Consolidated Interest Expense Coverage Ration test in Section
4.09(a) hereof, and (ii) the transfer of assets in that sale and leaseback transaction is permitted
by, and the Company applies the proceeds of such transaction in compliance with, Section 4.10(c)
hereof.



     The foregoing restrictions shall not apply to any sale and leaseback transaction if (i) the
transaction is solely between the Company and any Restricted Subsidiary or between Restricted
Subsidiaries, or (ii) the sale and leaseback transaction is consummated within 180 days after the
purchase of the assets subject to such transaction.



ARTICLE 5

SUCCESSORS




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




     The Company shall not, directly or indirectly, consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation) or sell, assign, transfer, convey
or otherwise dispose of all or substantially all of its properties or assets, in one or more
related transactions, to another Person, unless (i) the Company is the surviving corporation or the
Person formed by or surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States, any state thereof or the
District of Columbia, (ii) the Person formed by or



51









 




surviving any such consolidation or merger (if other than the Company) or the Person to which
such sale, assignment, transfer, conveyance or other disposition shall have been made assumes all
the obligations of the Company under the Notes and this Indenture pursuant to agreements reasonably
satisfactory to the Trustee, (iii) immediately after such transaction no Default or Event of
Default exists, (iv) except in the case of the amalgamation, consolidation or merger of the Company
with or into a Wholly Owned Restricted Subsidiary or with or into any Person solely for the purpose
of effecting a change in the state of incorporation of the Company, the Company or the Person
formed by or surviving any such consolidation or merger (if other than the Company) shall, on the
date of such transaction after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest
Expense Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof, and (v) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that such
consolidation, merger, sale, assignment, transfer, conveyance or other disposition complies with
this Indenture. In addition, the Company shall not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related transactions, to any other
Person. The provisions of this Section 5.01 shall not be applicable to a sale, assignment,
transfer, conveyance or other disposition of assets by the Company to any of its Wholly Owned
Restricted Subsidiaries.




Section 5.02. Successor Corporation Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in accordance with
Section 5.01 hereof, the successor corporation formed by such consolidation or into or with which
the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this
Indenture referring to the “Company” shall refer instead to the successor corporation and not to
the Company), and may exercise every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein; provided, however,
that the predecessor Company shall not be relieved from the obligation to pay the principal of and
interest and Additional Interest, if any, on the Notes except in the case of a sale of all of the
Company’s assets that meets the requirements of Section 5.01 hereof.



ARTICLE 6

DEFAULTS AND REMEDIES




Section 6.01. Events of Default.




     An “Event of Default” occurs if:



          (a) the Company defaults in the payment when due of interest and Additional Interest, if any,
on the Notes and such default continues for a period of 30 days;




          (b) the Company defaults in the payment when due of principal of or premium, if any, on the
Notes when the same becomes due and payable at maturity, upon redemption (including in connection
with an offer to purchase) or otherwise;




          (c) the Company fails to make any payment required to be made pursuant to the provisions of
Section 4.10 or 4.14 hereof;




          (d) the Company fails to observe or perform any other covenant, representation, warranty or
other agreement in this Indenture or the Notes for 60 days after notice to the Company by the






52









 







Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class;




          (e) a default occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is
created after the date of this Indenture, which default (i) is caused by a failure to pay principal
of such Indebtedness at the Stated Maturity thereof or (ii) results in the acceleration of such
Indebtedness prior to the Stated Maturity thereof, and, in each case, the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness the maturity of
which has been so accelerated, aggregates $10 million or more;




          (f) a final judgment or final judgments for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary and such
judgment or judgments remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such undischarged judgments
exceeds $10 million (other than amounts covered by insurance);




          (g) within the meaning of Bankruptcy Law, the Company or any of its Significant Subsidiaries
or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary:





          (i) commences a voluntary case,




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




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




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




          (v) generally is not paying its debts as they become due; or



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






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




          (ii) appoints a custodian of the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary or
for all or substantially all of the property of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary; or




          (iii) orders the liquidation of the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary;


and the order or decree remains unstayed and in effect for 60 consecutive days.







53









 








Section 6.02. Acceleration.




          (a) If any Event of Default (other than an Event of Default specified in clause (g) or (h) of
Section 6.01 hereof with respect to the Company, any Significant Subsidiary or any group of
Significant Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding the foregoing, if
an Event of Default specified in clause (g) or (h) of Section 6.01 hereof occurs with respect to
the Company, any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary, all outstanding Notes shall be due and payable
immediately without further action or notice. The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may on behalf of all of the
Holders rescind an acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been cured or waived.




          (b) Notwithstanding the foregoing, if the Company so elects, the sole remedy of the Holders
for the Company’s failure to file or furnish reports or other financial information pursuant to TIA
§ 314(a) or as otherwise required by the Indenture (including Section 4.03), will for the first 180
days after the occurrence of such failure, consist exclusively of the right to receive additional
interest on the Notes at a rate per annum: equal to (i) 0.25% for the first 90 days after the
occurrence of such failure and (ii) 0.50% from the 91st day to, and including, the 180th day after
the occurrence of such failure (“Additional Interest”). Additional Interest will accrue on all
outstanding Notes from and including the date on which such failure first occurs until such
violation is cured or waived and shall be payable on each relevant interest payment date to Holders
of record on the regular record date immediately preceding such interest payment date. On the 181st
day after such failure (if such violation is not cured or waived prior to such 181st day), such
failure will then constitute an Event of Default without any further notice or lapse of time and
the Notes will be subject to acceleration as provided in Section 6.02(a) above. Unless the context
requires otherwise, all references to “interest” contained herein shall be deemed to include
Additional Interest.




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, interest and Additional Interest, if any, on
the Notes or to enforce the performance of any provision of the Notes or this Indenture.



     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. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.



Section 6.04. Waiver of Past Defaults.




     Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, interest and Additional Interest, if any, on,
the Notes (including in connection with an offer to purchase) (provided, however, that the Holders
of a majority in aggregate



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principal amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). Upon
any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.




Section 6.05. Control by Majority.




     Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal
liability.



Section 6.06. Limitation on Suits.




     A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if:



          (a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;




          (b) the Holders of at least 25% in principal amount of the then outstanding Notes make a
written request to the Trustee to pursue the remedy;




          (c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;




          (d) the Trustee does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and




          (e) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the request.




     A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.



Section 6.07. Rights of Holders of Notes to Receive Payment.




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



Section 6.08. Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, interest and Additional
Interest, if any, remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as



55









 




shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.




Section 6.09. Trustee May File Proofs of Claim.




     The Trustee is authorized 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 (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, 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, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.



Section 6.10. Priorities.




     If the Trustee collects any money pursuant to this Article, it shall pay out the money in the
following order:




          First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection;




          Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium
and interest, ratably, without preference or priority of any kind, according to the amounts due
and payable on the Notes for principal, premium and interest, respectively; and




          Third: to the Company or to such party as a court of competent jurisdiction shall direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.



Section 6.11. Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party



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litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.




ARTICLE 7

TRUSTEE




Section 7.01. Duties of Trustee.




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




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





          (i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




          (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:





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




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




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



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




          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss, liability or expense.




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







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Section 7.02. Rights of Trustee.




          (a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.




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




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture.




          (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the Company.




          (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or direction.




Section 7.03. Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.



Section 7.04. Trustee’s Disclaimer.




     The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.



Section 7.05. Notice of Defaults.




     If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium, if any,




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interest and Additional Interest, if any, on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.




Section 7.06. Reports by Trustee to Holders of the Notes.




     Within 60 days after each March 15 beginning with the March 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall deliver to the Holders of
the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA § 313(c).



     A copy of each report at the time of its delivery to the Holders of Notes shall be delivered
to the Company and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA § 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.



Section 7.07. Compensation and Indemnity.




     The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder, as the parties shall agree in writing from
time to time. The Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.



     The Company shall indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing this Indenture against the
Company (including this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be unreasonably withheld.



     The obligations of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture.



     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, interest and Additional Interest, if any, on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(g) or (h) hereof occurs, the expenses and the compensation for the services (including
the



59









 





fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.




     The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.



Section 7.08. Replacement of Trustee.




     A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.



     The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:


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


          (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;


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


          (d) the Trustee becomes incapable of acting.



     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.



     If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in principal
amount of the then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.



     If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.



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Section 7.09. Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business (including the trust created by this Indenture) to, another
corporation, the successor corporation without any further act shall be the successor Trustee.



Section 7.10. Eligibility; Disqualification.




     There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has (or if the Trustee is a subsidiary of a bank holding
company, its parent shall have) a combined capital and surplus of at least $100 million as set
forth in its most recent published annual report of condition.



     This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).



Section 7.11. Preferential Collection of Claims Against Company.




     The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be
applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.



Section 8.02. Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations
under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04
hereof, and as more fully set forth in such Section, payments in respect of the principal of,
premium, if any, interest and Additional Interest, if any, on such Notes when such payments are
due, (b) the Company’s obligations with respect to such Notes under Article 2 and Section 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith and (d) this Article Eight. Subject to compliance
with this Article 8, the Company



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may exercise its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.




Section 8.03. Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18 and 4.19 hereof and clause (iv) of Section
5.01 hereof with respect to the outstanding Notes on and after the date the conditions set forth in
Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act
of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(f) hereof shall not
constitute Events of Default.



Section 8.04. Conditions to Legal or Covenant Defeasance.




     The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes:



     In order to exercise either Legal Defeasance or Covenant Defeasance:


          (a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders, cash in United States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, interest and Additional Interest,
if any, on the outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be and the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;


          (b) in the case of an election under Section 8.02 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;


          (c) in the case of an election under Section 8.03 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee



62









 








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



          (d) no Default or Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness all
or a portion of the proceeds of which will be used to defease the Notes pursuant to this Article 8
concurrently with such incurrence) or insofar as Sections 6.01(g) or 6.01(h) hereof is concerned,
at any time in the period ending on the 91st day after the date of deposit;


          (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any material agreement or instrument (other than this Indenture) to
which the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;


          (f) the Company shall have delivered to the Trustee an Opinion of Counsel (which may be
subject to customary exceptions) to the effect that on the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally;


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


          (h) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with; and


          (i) except as otherwise provided in this Indenture, each Guarantor shall have been released
from its Obligations under its Note Guarantee.



Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.




     Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to the extent required
by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.



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     Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.



Section 8.06. Repayment to Company.




     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, interest and Additional Interest, if
any, on any Note and remaining unclaimed for two years after such principal, and premium, if any,
or interest has become due and payable shall be paid to the Company on its request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter
look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be published once, in the New
York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then remaining will be repaid
to the Company.



Section 8.07. Reinstatement.




     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, interest and Additional Interest, if
any, on 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 9

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01. Without Consent of Holders of Notes.




     Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture, the Note Guarantees or the Notes without the consent of any Holder of a
Note:


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


          (b) to provide for uncertificated Notes in addition to or in place of certificated Notes or to
alter the provisions of Article 2 hereof (including the related definitions) in a manner that does
not materially adversely affect any Holder;



64









 







          (c) to provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders
of the Notes by a successor to the Company pursuant to Article 5 or Article 10 hereof;


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


          (e) to comply with requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA;


          (f) to make any change necessary to make this Indenture, the Notes or the Notes Guarantee, as
applicable, consistent with the disclosure under the caption “Description of Notes” in the final
offering memorandum relating to the initial issuance of the Notes; or


          (g) to permit any Guarantor to execute a supplemental indenture and/or a Note Guarantee with
respect to the Notes.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company
and the Guarantors in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.



Section 9.02. With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture (including Sections 3.09, 4.10 and 4.14 hereof), the Note Guarantees and
the Notes with the consent of the Holders of at least a majority in principal amount of the Notes
then outstanding voting as a single class (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, interest and Additional Interest, if any, on the
Notes, except a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture, the Note Guarantees or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then outstanding Notes
voting as a single class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes are
considered to be “outstanding” for purposes of this Section 9.02.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly 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 amended or supplemental Indenture.



65









 





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



     After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the Notes then outstanding voting as a single class may waive
compliance in a particular instance by the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):


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


          (b) reduce the principal of or change the fixed maturity of any Note or alter or waive any of
the provisions with respect to the redemption of the Notes except as provided above with respect to
Sections 3.09, 4.10 and 4.14 hereof;


          (c) reduce the rate of or change the time for payment of interest, including default interest,
on any Note;


          (d) waive a Default or Event of Default in the payment of principal of or premium, if any,
interest and Additional Interest, if any, on the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding
Notes and a waiver of the payment default that resulted from such acceleration);


          (e) make any Note payable in money other than that stated in the Notes;


          (f) make any change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of, interest and Additional
Interest, if any, on the Notes;


          (g) make any change in Section 6.04 or 6.07 hereof or in the foregoing amendment and waiver
provisions;


          (h) waive a payment required by any of the covenants in 3.09, 4.10, 4.14; or


          (i) release any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture.



Section 9.03. Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended
or supplemental Indenture that complies with the TIA as then in effect.



66









 





Section 9.04. Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.



Section 9.05. Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



     Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.



Section 9.06. Trustee to Sign Amendments, etc.




     The Trustee shall sign any amended or supplemental Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amendment or supplemental Indenture
until the Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected
in relying upon, in addition to the documents required by Section 11.04 hereof, an Officer’s
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.



ARTICLE 10

NOTE GUARANTEES




Section 10.01. Guarantee.




     Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the
principal of and interest and Additional Interest, if any, on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof, and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that 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. 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 the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.



67









 





     The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and this Indenture.



     If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder,
this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and
effect.



     Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. 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.



     As of the date of this Indenture, there are no Guarantors.



Section 10.02. Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note 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 federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant
under such laws, and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.



Section 10.03. Execution and Delivery of Note Guarantee.




     To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a
notation of such Note Guarantee substantially in the form included in Exhibit D 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.



68









 





     Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain
in full force and effect notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.



     If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee shall be valid nevertheless.



     The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.



     In the event that the Company creates or acquires any new Subsidiaries subsequent to the date
of this Indenture, if required by Section 4.18 hereof, the Company shall cause such Subsidiaries to
execute supplemental indentures to this Indenture and Note Guarantees in accordance with Section
4.18 hereof and this Article 10, to the extent applicable.



Section 10.04. Guarantors May Consolidate, etc., on Certain Terms.




     Except as otherwise provided in Section 10.05, no Guarantor may consolidate with or merge with
or into (whether or not such Guarantor is the surviving Person) or sell, assign, transfer, convey
or otherwise dispose of all or substantially all of its properties or assets, in one or more
related transactions, to another Person, in each case other than with or to the Company or another
Guarantor unless:


          (a) subject to Section 10.05 hereof, either: (i) the Surviving Person (if not a Guarantor or
the Company) is a Restricted Subsidiary and expressly assumes all the obligations of that Guarantor
under the Indenture and the Notes Guarantee by executing a supplemental indenture and other
documents reasonably satisfactory to the Trustee; or (ii) such sale, transfer, assignment,
conveyance or other disposition or merger, consolidation or amalgamation is otherwise in compliance
with Section 4.10; and


          (b) immediately after giving effect to such transaction, no Default or Event of Default
exists.



     In case of any such consolidation or merger and upon the assumption by the successor Person,
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been
named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of
the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so
issued shall in all respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as
though all of such Note Guarantees had been issued at the date of the execution hereof.



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (a) and (b) above,
nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.



69









 





Section 10.05. Release of Notes Guarantors.



          (a) A Notes Guarantor shall be released from all of its obligations under its Notes Guarantee
and this Indenture:




     (i) in connection with any sale or other disposition of all or substantially all of the
assets or all of the Capital Stock of that Notes Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to such
transaction) the Company or a Domestic Subsidiary of the Company, if such sale or other
disposition is in compliance with Section 10.04;




     (ii) upon the designation of such Guarantor as an Unrestricted Subsidiary, in
accordance with the terms of this Indenture; or




     (iii) upon the delivery by the Company to the Trustees of an Officers’ Certificate
certifying that such Guarantor is not a Significant Subsidiary or a Domestic Subsidiary;



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



     (b) If all of the conditions to release contained in this Section 10.05 have been satisfied,
the Trustee shall execute any documents reasonably requested by the Company or any Notes Guarantor
in order to evidence the release of such Notes Guarantor from its obligations under its Notes
Guarantee under this Article 10.



     Any Guarantor not released from its obligations under its Note Guarantee shall remain liable
for the full amount of principal of and interest and Additional Interest, if any, on the Notes and
for the other obligations of any Guarantor under this Indenture as provided in this Article 10.



ARTICLE 11

MISCELLANEOUS




Section 11.01. Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), the imposed duties shall control.



Section 11.02. Notices.




     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others’ address:




If to the Company and/or any Guarantor:




Amkor Technology, Inc.


1900 South Price Road


Chandler, Arizona 85286


Telecopier No.: (610) 431-3990



Attention: Chief Financial Officer



70









 







With a copy to:




Wilson Sonsini Goodrich & Rosati


650 Page Mill Road


Palo Alto, California 94304

Telecopier No.: (650) 493-6811


Attention: Larry Sonsini




If to the Trustee:




U.S. Bank National Association


One Federal Street, 3rd Floor


Boston, MA 02110


Telecopier No.: (617) 603-6665


Attention: Corporate Trust Services






     (Amkor Technology, Inc. 7.375% Senior Notes due 2018)



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



     All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery. Notwithstanding the foregoing,
notices to the Trustee shall be effective only upon receipt by a Responsible Officer.



     Any notice or communication to a Holder 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 register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



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



Section 11.03. Communication by Holders of Notes with Other Holders of Notes.




     Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).



71









 





Section 11.04. Certificate and Opinion as to Conditions Precedent.




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


          (a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and


          (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.



Section 11.05. Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:


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


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


          (c) a statement that, in the opinion of such Person, he or she 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 satisfied; and


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



Section 11.06. Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders.




     No past, present or future director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
such Guarantor under the Notes, the Note Guarantees, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes.



Section 11.08. Governing Law, Consent to Jurisdiction and Service of Process




     THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE,
THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE



72









 





EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




Section 11.09. Agent for Service; Submission to Jurisdiction.




     Each of the parties hereto irrevocably agrees that any suit, action or proceeding arising out
of or relating to this Indenture or the Notes, or brought under federal or state securities laws or
brought by the Trustee, may be instituted in any federal or state court in the State of New York,
borough of Manhattan. The Company has irrevocably appointed Corporation Service Company, located
at 2711 Centerville Road, Suite 400, Wilmington, Delaware 19898-1660, as its agent (the “Authorized
Agent”) for service of process in any suit, action or proceeding arising out of or relating to this
Indenture and the Notes, or brought under federal or state securities laws or brought by the
Trustee, that may be instituted in federal or state courts in the State of New York, borough of
Manhattan. The Company expressly consents to the jurisdiction of any such court in respect of such
action and waives any other requirements or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable unless and until replaced by an agent reasonably
acceptable to the Trustee. The Company agrees to take any and all action, including the filing of
any and all documents and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service of process upon
the Company.



Section 11.10. No Adverse Interpretation of Other Agreements.




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



Section 11.11. Successors.




     All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section
10.05.



Section 11.12. Severability.




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



Section 11.13. Counterpart Originals.




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



Section 11.14. Table of Contents, Headings, etc.




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



73









 





Section 11.15. Designated Senior Debt.




     The Notes shall be “Designated Senior Debt” for purposes of the indentures governing the
Convertible Subordinated Notes.



[Signatures on following page]




74









 





SIGNATURES









	 	 	 	 	 
	Dated as of May 4, 2010	
AMKOR TECHNOLOGY, INC.
 	 
	 	By:  	/s/
Joanne Solomon	 
	 	 	Name:  Joanne Solomon	 
	 	 	Title:  Executive Vice President and
Chief Financial Officer	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Susan Freedman	 
	 	 	Name:  	Susan  Freedman	 
	 	 	Title:  	Vice President	 
	 



[SIGNATURE PAGE TO INDENTURE]




 









 








EXHIBIT A




FORM OF NOTE




[Insert the Global Note Legend if applicable pursuant to the provisions of the Indenture]




[Insert the Restricted Notes Legend if applicable pursuant to the provisions of the Indenture]




[Face of Note]




			
	No.
	 	CUSIP:
	$
	 	ISIN:





7.375% SENIOR NOTES DUE 2018


AMKOR TECHNOLOGY, INC.



promises to pay to Cede & Co. or registered assigns, the principal sum of
on May 1, 2018.




Interest Payment Dates: May 1 and November 1, commencing November 1, 2010.




Record Dates: April 15 and October 15.




Dated:




     IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers



	 	 	 	 	 
	Dated:	 AMKOR TECHNOLOGY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	This is one of the Notes referred to

in the within-mentioned Indenture:



U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	By:  	 	 
	 	 	 	 
	 	 	 	 



A-1









 






	 	 	 	 	 



EXHIBIT A




Authorized Signatory




A-2









 








EXHIBIT A




[Back of Note]





     Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.



     1. Interest. Amkor Technology, Inc., a Delaware corporation (the “Company”),
promises to pay interest and Additional Interest, if any, on the principal amount of this Note at
7.375% per annum from May 4, 2010 until maturity. The Company will pay interest semi-annually in
arrears on May 1 and November 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be November 1, 2010. The
Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per
annum in excess of the rate then in effect; 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 will be computed on the basis of a 360-day year of twelve 30-day months.



     2. Method of Payment. The Company will pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of business on the April
15 and October 15 next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of
the Indenture with respect to defaulted interest. The Notes will be payable as to principal,
premium and interest at the office or agency of the Company maintained for such purpose, or, at the
option of the Company, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and interest, premium on,
all Global Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and
private debts.



     3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may
act in any such capacity.



     4. Indenture. The Company issued the Notes under an Indenture dated as of May 4,
2010 (“Indenture”) between the Company and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Notes are obligations of the
Company limited to $345,000,000 in aggregate principal amount.



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EXHIBIT A


     5. Optional Redemption.



     (a) Except as set forth in clauses (c) and (d) of this paragraph 5, the Notes will not be
redeemable at the option of the Company prior to May 1, 2014.



     (b) At any time and from time to time on and after May 1, 2014, the Notes may be redeemed at
the option of the Company at the redemption prices set forth below, plus accrued and unpaid
interest and Additional Interest, if any, to, but excluding, the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due on the relevant
interest payment date). The following redemption prices are for the Notes redeemed during the
12-month period commencing on May 1 of the years set forth below, and are expressed as percentages
of principal amount:



	 	 	 	 	 
	Year	 	Redemption Price	 
	2014
	 	 	103.688	%
	2015
	 	 	101.844	%
	2016 and thereafter
	 	 	100.000	%






     (c) At any time, and from time to time, prior to May 1, 2014, the Notes are subject to
redemption, as a whole or in part, at the election of the Company, at a price equal to the sum of
(i) 100% of the principal amount thereof plus accrued interest and Additional Interest, if any, to,
but excluding, the redemption date plus (ii) the Make-Whole Amount, if any.



     (d) At any time, and from time to time, prior to May 1, 2013, the Company may redeem up to a
maximum of 35% of the aggregate principal amount of the Notes issued under the Indenture with the
proceeds of one or more Equity Offerings at a redemption price (expressed as a percentage of
principal amount) equal to 107.375% of the principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, to, but excluding, the redemption date (subject to the
rights of Holders of record on the relevant interest record date to receive interest due on the
relevant interest payment date); provided, however, that after giving effect to such redemption, at
least 65% of the original aggregate principal amount of the Notes (excluding Notes held by the
Company and its Subsidiaries) remains outstanding. Any such redemption shall be made within 45
days of the closing of such Equity Offering.



     6. No Mandatory Redemption.



     Except as set forth in paragraph 7 below, the Company shall not be required to make mandatory
redemption payments with respect to the Notes.



     7. Repurchase at Option of Holder.



     (a) If there is a Change of Control, the Company shall be required to make an offer (a “Change
of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000
thereafter) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon, if any,
to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of
Control, the Company shall deliver a notice to each Holder setting forth the procedures governing
the Change of Control Offer as required by the Indenture.



     (b) If the Company or a Subsidiary consummates any Asset Sales, within five days of each date
on which the aggregate amount of Excess Proceeds exceeds $20 million, the Company shall commence an
offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with
the Notes containing provisions similar to Section 4.10 of the Indenture (as “Asset Sale
Offer”) pursuant



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EXHIBIT A




to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes
and such pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Additional Interest, if any, to, but excluding, the date fixed for the closing of such offer,
in accordance with the procedures set forth in the Indenture. To the extent that the aggregate
amount of Notes and such pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company (or such Subsidiary) may use such deficiency for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes surrendered
by Holders thereof plus the amount of any pari passu Indebtedness surrendered by the holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased
on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” on the reverse
of the Notes.




     8. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 thereafter. The transfer of
Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the transfer of any Note
or portion of a Note selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.



     9. Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.



     10. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture,
the Note Guarantees or the Notes may be amended or supplemented with the consent of the Holders of
at least a majority in aggregate principal amount of the then outstanding Notes voting as a single
class, and any existing default or compliance with any provision of the Indenture, the Note
Guarantees or the Notes may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes voting as a single class. Without the consent of
any Holder of a Note, the Indenture, the Note Guarantees or the Notes may be amended or
supplemented to (i) to cure any ambiguity, defect or inconsistency; (ii) to provide for
uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of
Article 2 of the Indenture (including the related definitions) in a manner that does not materially
adversely affect any Holder; (iii) to provide for the assumption of the Company’s or a Guarantor’s
obligations to the Holders of the Notes by a successor to the Company pursuant to Article 5 or
Article 10 of the Indenture; (iv) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder
of any Holder of the Note; (v) to comply with requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (vi) to make any change necessary to
make the Indenture, the Notes or the Notes Guarantee, as applicable, consistent with the disclosure
under the caption “Description of Notes” in the final offering memorandum relating to the initial
issuance of the Notes; or (vii) to permit any Guarantor to execute a supplemental indenture and/or
a Note Guarantee with respect to the Notes.


          Without the consent of each holder affected, an amendment or waiver may not (with respect to
any Notes held by a nonconsenting holder): (i) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver; (ii) reduce the principal of or change the



A-5









 








EXHIBIT A




fixed maturity of any Note or alter or waive any of the provisions with respect to the redemption
of the Notes except as provided above with respect to Sections 3.09, 4.10 and 4.14 of the
Indenture; (iii) reduce the rate of or change the time for payment of interest, including default
interest, on any Note; (iv) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest and Additional Interest, if any, on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes and a waiver of the payment default that resulted from such
acceleration); (v) make any Note payable in money other than that stated in the Notes; (vi) make
any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of or interest and Additional Interest, if any,
on the Notes; (vii) make any change in Section 6.04 or 6.07 of the Indenture or in the foregoing
amendment and waiver provisions; (viii) waive a payment required by any of the covenants in
Sections 3.09, 4.10, 4.14 of the Indenture; or (ix) release any Guarantor from any of its
obligations under its Note Guarantee or the Indenture, except in accordance with the terms of the
Indenture.




     11. Defaults and Remedies. An “Event of Default” occurs if: (i) the Company defaults
in the payment when due of interest and Additional Interest, if any, on the Notes and such default
continues for a period of 30 days; (ii) the Company defaults in the payment when due of principal
of or premium, if any, on the Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise; (iii) the Company
fails to make any payment required to be made pursuant to the provisions of Section 4.10 or 4.14 of
the Indenture; (iv) the Company fails to observe or perform any other covenant, representation,
warranty or other agreement in the Indenture or the Notes for 60 days after notice to the Company
by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class; (v) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of the Indenture, which default
(A) is caused by a failure to pay principal of such Indebtedness at the Stated Maturity thereof or
(B) results in the acceleration of such Indebtedness prior to the Stated Maturity thereof, and, in
each case, the principal amount of such Indebtedness, together with the principal amount of any
other such Indebtedness the maturity of which has been so accelerated, aggregates $10 million or
more; (vi) a final judgment or final judgments for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary and such
judgment or judgments remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such undischarged judgments
exceeds $10 million (other than amounts covered by insurance); and (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken together, would constitute a Significant Subsidiary.



     If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may declare all the Notes to be due and payable
in accordance with the provisions of the Indenture. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice in accordance with the provisions of
the Indenture.



     Notwithstanding the foregoing, if the Company so elects, the sole remedy of the Holders for
the Company’s failure to file or furnish reports or other financial information pursuant to TIA §
314(a) or as otherwise required by the Indenture (including Section 4.03 thereof), will for the
first 180 days after the occurrence of such failure, consist exclusively of the right to receive
additional interest on the Notes at a rate per annum: equal to (i) 0.25% for the first 90 days
after the occurrence of such failure and (ii) 0.50%



A-6









 





EXHIBIT A




from the 91st day to, and including, the 180th
day after the occurrence of such failure (“Additional Interest”). Additional Interest will accrue
on all outstanding Notes from and including the date on which such failure first occurs until such
violation is cured or waived and shall be payable on each relevant interest payment date to Holders
of record on the regular record date immediately preceding such interest payment date. On the 181st
day after such failure (if such violation is not cured or waived prior to such 181st day), such
failure will then constitute an Event of Default without any further notice or lapse of time and
the Notes will be subject to acceleration as provided in Section 6.02(a) of the Indenture. Unless
the context requires otherwise, all references to “interest” contained herein shall be deemed to
include Additional Interest.




     Holders may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate principal amount
of the Notes then outstanding by notice to the Trustee may, on behalf of the Holders of all of the
Notes, waive any existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest and Additional Interest,
if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.



     12. DESIGNATED SENIOR DEBT. This Note shall be “Designated Senior Debt” for purposes of the
indentures governing the Convertible Subordinated Notes.



     13. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.



     14. Trustee Dealings with Company. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.



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



     16. Authentication. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.



     17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



A-7









 





EXHIBIT A




     18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:



Amkor Technology, Inc.

1900 South Price Road

Chandler, Arizona 85286

Attention: Chief Financial Officer





A-8











 





EXHIBIT A




Assignment Form




     To assign this Note, fill in the form below:



	 	 	 	 	 

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

	 	 
(Insert assignee’s legal name)
	 	 






	 	 	 

	 

(Insert assignee’s soc. sec. or tax I.D. no.)

	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

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

	 	 






	 	 	 	 	 

	and irrevocably appoint

	 	 

	 	 
	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*:                                                            






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-9









 










EXHIBIT A




Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10
or 4.14 of the Indenture, check the appropriate box below:



o Section 4.10                                         o Section 4.14



     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:



$                    


Date:                                        




	 	 	 	 	 	 	 

	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

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

	 	Tax Identification No.:	 	 	 	 
	 

	 	 	 	 

	 	 





Signature Guarantee*:                                                            






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-10









 










EXHIBIT A




SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount of	 	 
	 	 	 	 	 	 	this Global Note	 	Signature of
	 	 	Amount of decrease in	 	Amount of increase in	 	following such	 	authorized officer of
	 	 	Principal Amount of	 	Principal Amount of	 	decrease	 	Trustee or Note
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 
	 	 
	 	 
	 	 
	 	 





A-11









 






EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Amkor Technology, Inc.

1345 Enterprise Drive

West Chester, Pennsylvania 19380

Attention: Secretary




U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Telecopier No.: (617) 603-6665

Attention: Corporate Trust Services

(Amkor Technology, Inc. 7.375% Senior Notes due 2018)




     Re: 7.375% Senior Notes due 2018



     Reference is hereby made to the Indenture, dated as of May 4, 2010 (the “Indenture”), between
Amkor Technology, Inc., as issuer (the “Company”), and U.S. Bank National Association, 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] specified in Annex A hereto, in the principal amount of $                     in such
Note[s] or interests (the “Transfer”), to                                          (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




	 	1.	 	[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Note is being transferred to a Person
that the Transferor reasonably believed and believes is purchasing the beneficial interest
or Definitive Note for its own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such Person and each such account is
a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated in the
Restricted Notes Legend printed on the 144A Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.
	 
	 	2.	 	[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION
S GLOBAL NOTE OR DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule




B-1









 





EXHIBIT B




	 	 	 	903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the United States
and (x) 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 (y) 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(b) 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. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer enumerated in
the Restricted Notes Legend printed on the Regulation S Global Note and/or Definitive Note
and in the Indenture and the Securities Act.
	 	3.	 	[ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN
RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that such Transfer is being effected to the Company or
a subsidiary thereof.
	 
	 	4.	 	[ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.






	 	(a)	 	[ ] CHECK IF TRANSFER IS PURSUANT TO RULE
144. (i) The Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Restricted
Notes Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Restricted Notes Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
	 
	 	(b)	 	[ ] CHECK IF TRANSFER IS PURSUANT TO
REGULATION S. (i) The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture
and the Restricted Notes Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no




B-2









 




EXHIBIT B





	 	 	 	longer be subject to the restrictions on transfer enumerated in the
Restricted Notes Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
	 
	 	(c)	 	[ ] CHECK IF TRANSFER IS PURSUANT TO OTHER
EXEMPTION. (i) The Transfer is being effected pursuant to and in
compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture
and the Restricted Notes Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Restricted Notes Legend
printed on the Restricted Global Notes or Restricted Definitive Notes
and in the Indenture.





     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:                                        







B-3









 








EXHIBIT B




ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE]




	 	(i)	 	[ ] 144A Global Note (CUSIP                                         ), or
	 
	 	(ii)	 	[ ] Regulation S Global Note (CUSIP                                         ), or
	 
	 	(iii)	 	[ ] Unrestricted Global Note (CUSIP                     ), or






	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]




	 	(a)	 	[ ] a beneficial interest in the:






	 	(i)	 	[ ] 144A Global Note (CUSIP                                         ), or
	 
	 	(ii)	 	[ ] Regulation S Global Note (CUSIP                                         ), or
	 
	 	(iii)	 	[ ] Unrestricted Global Note (CUSIP                                         ), or






	 	(b)	 	[ ] a Restricted Definitive Note; or
	 
	 	(c)	 	[ ] an Unrestricted Definitive Note,
	 
	 	 	 	in accordance with the terms of the Indenture.




B-4









 











EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Amkor Technology, Inc.

1345 Enterprise Drive

West Chester, Pennsylvania 19380

Attention: Secretary




U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Telecopier No.: (617) 603-6665

Attention: Corporate Trust Services

(Amkor Technology, Inc. 7.375% Senior Notes due 2018)




     Re: 7.375% Senior Notes due 2018



     Reference is hereby made to the Indenture, dated as of May 4, 2010 (the “Indenture”), between
Amkor Technology, Inc., as issuer (the “Company”), and U.S. Bank National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.



                                             , (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $                     in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:




	 	1.	 	EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL
NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL
NOTE






	 	(a)	 	[ ] CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the United States Securities Act of 1933, as
amended (the “Securities Act”), (iii) the restrictions on transfer
contained in the Indenture and the Restricted Notes Legend are not
required in order to maintain compliance with the Securities Act and
(iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
	 
	 	(b)	 	[ ] CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE.
In connection with the Exchange of the Owner’s beneficial interest




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EXHIBIT C




	 	 	 	in a Restricted Global Note for an Unrestricted Definitive Note, the
Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in
the Indenture and the Restricted Notes Legend are not required in
order to maintain compliance with the Securities Act and (iv) the
Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
	 
	 	(c)	 	[ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Restricted Notes Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
	 
	 	(d)	 	[ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Restricted
Notes Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of
any state of the United States.






	 	2.	 	EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES






	 	(a)	 	[ ] CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal
principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without
transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will
continue




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EXHIBIT C




	 	 	 	to be subject to the restrictions on transfer enumerated in the
Restricted Notes Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
	 
	 	(b)	 	[ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in a Restricted Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer
and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of
the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in
the Restricted Notes Legend printed on the relevant Restricted Global
Note and in the Indenture and 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:                                        











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EXHIBIT D




FORM OF NOTATION OF GUARANTEE





     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of
May 4, 2010 (the “Indenture”)
among Amkor Technology, Inc. and U.S. Bank National Association, as
trustee (the “Trustee”), (a)
the due and punctual payment of the principal of, premium, if any, and interest on the Notes (as
defined in the Indenture), whether at maturity, by acceleration, redemption or otherwise, the due
and punctual payment of interest on overdue principal and premium, 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 Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to
the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note, by accepting the
same, agrees to and shall be bound by such provisions.



[Signature page follows]



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EXHIBIT C




	 	 	 	 	 
	 	[Guarantor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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EXHIBIT E




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




          Supplemental Indenture (this “Supplemental Indenture”), dated as of                                         ,
among                                          (the “Guaranteeing Subsidiary”), a subsidiary of Amkor Technology, Inc.
(or its permitted successor), a Delaware corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and U.S. Bank National Association, as
trustee under the indenture referred to below (the “Trustee”).




W I T N E S S E T H



          WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of May 4, 2010, governing the Company’s 7.375% Senior Notes due 2018 (the
“Notes”);




          WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein
(the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.




          NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:




          1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.




          2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:






          (a) Along with all Guarantors named in the Indenture, to jointly and severally Guarantee
to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Notes or the obligations of the Company hereunder or thereunder,
that:




          (i) the principal of and interest on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and thereof;
and




          (ii) in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that 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. 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 the same immediately.



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          (b) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.




          (c) The following is hereby waived: diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands whatsoever.




          (d) This Note Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes and the Indenture, and the Guaranteeing Subsidiary accepts
all obligations of a Guarantor under the Indenture.




          (e) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any Custodian, Trustee, liquidator or other similar official acting
in relation to either the Company or the Guarantors, any amount paid by either to the Trustee
or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect.




          (f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full
of all obligations guaranteed hereby.




          (g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 6 of the Indenture for the purposes of this Note Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note
Guarantee.




          (h) 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.




          (i) Pursuant to Section 10.02 of the Indenture, after giving effect to any maximum amount
and any other contingent and fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under Article 10 of the Indenture, this Note
Guarantee shall be limited to the maximum amount permissible such that the obligations of such
Guarantor under this Note Guarantee will not constitute a fraudulent transfer or conveyance.



          3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that the Note
Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.







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          4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.




          (a) Except as otherwise provided in Article 4 hereof and Section 10.05 of the Indenture, no
Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) or sell, assign, transfer, convey or otherwise dispose of all or substantially
all of its properties or assets, in one or more related transactions, to another Person, in each
case other than with or to the Company or another Guarantor unless:




          (a) subject to Article 4 hereof and Section 10.05 of the Indenture, either: (i) the Surviving
Person (if not a Guarantor or the Company) is a Restricted Subsidiary and expressly assumes all the
obligations of that Guarantor under the Indenture and the Notes Guarantee by executing a
supplemental indenture and other documents reasonably satisfactory to the Trustee; or (ii) such
sale, transfer, assignment, conveyance or other disposition or merger, consolidation or
amalgamation is otherwise in compliance with Section 4.10 of the Indenture; and




          (b) immediately after giving effect to such transaction, no Default or Event of Default
exists.




          In case of any such consolidation or merger and upon the assumption by the successor Person,
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been
named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of
the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so
issued shall in all respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as
though all of such Note Guarantees had been issued at the date of the execution hereof.




          (c) Except as set forth in Articles 4 and 5 and Section 10.05 of Article 10 of the Indenture,
and notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.




          5. Releases.




          (a) A Notes Guarantor shall be released from all of its obligations under its Notes Guarantee
and the Indenture:





          (i) in connection with any sale or other disposition of all or substantially all of the
assets or all of the Capital Stock of that Notes Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to such
transaction) the Company or a Domestic Subsidiary of the Company, if such sale or other
disposition is in compliance with Section 10.04 of the Indenture;



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          (ii) upon the designation of such Guarantor as an Unrestricted Subsidiary, in
accordance with the terms of the Indenture; and




          (iii) upon the delivery by the Company to the Trustees of an Officers’ Certificate
certifying that such Guarantor is not a Significant Subsidiary or a Domestic Subsidiary;



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




          (b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under the Indenture as provided in Article 10 of the Indenture.




          6. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against
public policy.




          7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.




          8. Counterparts The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.




          9. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.




          10. The Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.







E-4









 








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



Dated:                                         ,           




	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	Amkor Technology, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[Existing Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	U.S. Bank National Association,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




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