Indenture, dated October 29, 2004



 Exhibit 4.1 
  
 [EXECUTION VERSION] 
  

			
	 	  	

	 1
	  	 
		
	 2
	  	ADVANCED MICRO DEVICES, INC.
		
	 3
	  	and
		
	 4
	  	WELLS FARGO BANK, N.A., as Trustee
		
	 5
	  	

		
	 6
	  	INDENTURE
		
	 7
	  	Dated as of October 29, 2004
	 8
	  	 
	 9
	  	

		
	 10
	  	$600,000,000
	 11
	  	7.75% Senior Notes Due 2012
		
	 12
	  	  











					
	 13
	  	CROSS-REFERENCE TABLE	  	 
			
	 14
	  	  TIA	  	Indenture
	 15
	  	Section	  	  Section
	 16
	  	310(a)(1)	  	7.10
	 17
	  	      (a)(2)	  	7.10
	 18
	  	      (a)(3)	  	N.A.
	 19
	  	      (a)(4)	  	N.A.
	 20
	  	      (a)(5)	  	7.10
	 21
	  	      (b)	  	7.08; 7.10
	 22
	  	      (b)(1)	  	7.08; 7.10
	 23
	  	      (c)	  	N.A.
	 24
	  	311(a)	  	7.11
	 25
	  	      (b)	  	7.11
	 26
	  	      (c)	  	N.A.
	 27
	  	312(a)	  	2.06
	 28
	  	      (b)	  	N.A.
	 29
	  	      (c)	  	N.A.
	 30
	  	313(a)	  	7.06
	 31
	  	      (b)(1)	  	N.A.
	 32
	  	      (b)(2)	  	7.06
	 33
	  	      (c)	  	7.06
	 34
	  	      (d)	  	7.06
	 35
	  	314(a)	  	4.16
	 36
	  	      (b)	  	N.A.
	 37
	  	      (c)(1)	  	N.A.
	 38
	  	      (c)(2)	  	N.A.
	 39
	  	      (c)(3)	  	N.A.
	 40
	  	      (d)	  	N.A.
	 41
	  	      (e)	  	N.A.
	 42
	  	      (f)	  	N.A.
	 43
	  	315(a)	  	7.01(b)
	 44
	  	      (b)	  	7.05
	 45
	  	      (c)	  	7.01(a)
	 46
	  	      (d)	  	7.01(c)
	 47
	  	      (e)	  	6.12
	 48
	  	316(a) (last sentence)	  	2.10
	 49
	  	      (a)(1)(A)	  	6.05
	 50
	  	      (a)(1)(B)	  	6.04
	 51
	  	      (a)(2)	  	N.A.
	 52
	  	      (b)	  	6.08
	 53
	  	      (c)	  	8.04(b)
	 54
	  	317(a)(1)	  	6.09
	 55
	  	      (a)(2)	  	6.10
	 56
	  	      (b)	  	2.05; 7.12
	 57
	  	318(a)	  	N.A.
	 58
	  	NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of this
	 59
	  	              Indenture.	  	 









							
	60	    	TABLE OF CONTENTS	  	 
	61	    	 	  	 	  	Page


	62	    	 	  	 	  	 
			
	63	    	 ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
	  	1
				
	64	    	SECTION 1.01.	  	Definitions.	  	1
	65	    	SECTION 1.02.	  	Incorporation by Reference of Trust Indenture Act.	  	28
	66	    	SECTION 1.03.	  	Rules of Construction.	  	29
			
	67	    	 ARTICLE TWO THE SECURITIES
	  	30
				
	68	    	SECTION 2.01.	  	Amount of Notes.	  	30
	69	    	SECTION 2.02.	  	Form and Dating.	  	30
	70	    	SECTION 2.03.	  	Execution and Authentication.	  	30
	71	    	SECTION 2.04.	  	Registrar and Paying Agent.	  	31
	72	    	SECTION 2.05.	  	Paying Agent To Hold Money in Trust.	  	31
	73	    	SECTION 2.06.	  	Holder Lists.	  	32
	74	    	SECTION 2.07.	  	Transfer and Exchange.	  	32
	75	    	SECTION 2.08.	  	Replacement Notes.	  	33
	76	    	SECTION 2.09.	  	Outstanding Notes.	  	33
	77	    	SECTION 2.10.	  	Treasury Notes.	  	33
	78	    	SECTION 2.11.	  	Temporary Notes.	  	34
	79	    	SECTION 2.12.	  	Cancellation.	  	34
	80	    	SECTION 2.13.	  	Defaulted Interest.	  	34
	81	    	SECTION 2.14.	  	CUSIP Number.	  	35
	82	    	SECTION 2.15.	  	Deposit of Moneys.	  	35
	83	    	SECTION 2.16.	  	Book-Entry Provisions for Global Notes.	  	35
	84	    	SECTION 2.17.	  	Special Transfer Provisions.	  	37
	85	    	SECTION 2.18.	  	Computation of Interest.	  	39
			
	86	    	 ARTICLE THREE REDEMPTION
	  	39
				
	87	    	SECTION 3.01.	  	Election To Redeem; Notices to Trustee.	  	39
	88	    	SECTION 3.02.	  	Selection by Trustee of Notes To Be Redeemed.	  	40
	89	    	SECTION 3.03.	  	Notice of Redemption.	  	40
	90	    	SECTION 3.04.	  	Effect of Notice of Redemption.	  	41
	91	    	SECTION 3.05.	  	Deposit of Redemption Price.	  	41
	92	    	SECTION 3.06.	  	Notes Redeemed in Part.	  	42
	93	    	SECTION 3.07.	  	Other Mandatory Redemption.	  	42
			
	94	    	 ARTICLE FOUR COVENANTS
	  	42
				
	95	    	SECTION 4.01.	  	Payment of Notes.	  	42
	96	    	SECTION 4.02.	  	Maintenance of Office or Agency.	  	42
	97	    	SECTION 4.03.	  	Legal Existence.	  	43









							
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	98	    	SECTION 4.04.	  	Maintenance of Properties; Insurance; Compliance with Law.	  	43
	99	    	SECTION 4.05.	  	Waiver of Stay, Extension or Usury Laws.	  	44
	100	    	SECTION 4.06.	  	Compliance Certificate.	  	44
	101	    	SECTION 4.07.	  	Payment of Taxes and Other Claims.	  	45
	102	    	SECTION 4.08.	  	Repurchase at the Option of Holders upon Change of Control.	  	45
	103	    	SECTION 4.09.	  	Limitation on Debt.	  	47
	104	    	SECTION 4.10.	  	Limitation on Restricted Payments.	  	50
	105	    	SECTION 4.11.	  	Limitation on Liens.	  	53
	106	    	SECTION 4.12.	  	Limitation on Asset Sales.	  	54
	107	    	SECTION 4.13.	  	Limitation on Restrictions on Distributions from Restricted	  	 
	108	    	 	  	 Subsidiaries.
	  	57
	109	    	SECTION 4.14.	  	Limitation on Transactions with Affiliates.	  	59
	110	    	SECTION 4.15.	  	Designation of Restricted and Unrestricted Subsidiaries.	  	60
	111	    	SECTION 4.16.	  	Reports.	  	61
	112	    	SECTION 4.17.	  	Covenant Suspension.	  	63
	113	    	SECTION 4.18.	  	Payment for Consents.	  	63
			
	114	    	ARTICLE FIVE SUCCESSOR CORPORATION	  	64
				
	115	    	SECTION 5.01.	  	Merger, Consolidation and Sale of Property.	  	64
			
	116	    	ARTICLE SIX DEFAULTS AND REMEDIES	  	65
				
	117	    	SECTION 6.01.	  	Events of Default.	  	65
	118	    	SECTION 6.02.	  	Acceleration of Maturity; Rescission.	  	67
	119	    	SECTION 6.03.	  	Other Remedies.	  	69
	120	    	SECTION 6.04.	  	Waiver of Past Defaults and Events of Default.	  	69
	121	    	SECTION 6.05.	  	Control by Majority.	  	70
	122	    	SECTION 6.06.	  	Limitation on Suits.	  	70
	123	    	SECTION 6.07.	  	No Personal Liability of Directors, Officers, Employees and	  	 
	124	    	 	  	 Stockholders.
	  	70
	125	    	SECTION 6.08.	  	Rights of Holders To Receive Payment.	  	71
	126	    	SECTION 6.09.	  	Collection Suit by Trustee.	  	71
	127	    	SECTION 6.10.	  	Trustee May File Proofs of Claim.	  	71
	128	    	SECTION 6.11.	  	Priorities.	  	72
	129	    	SECTION 6.12.	  	Undertaking for Costs.	  	72
			
	130	    	ARTICLE SEVEN TRUSTEE	  	72
				
	131	    	SECTION 7.01.	  	Duties of Trustee.	  	72
	132	    	SECTION 7.02.	  	Rights of Trustee.	  	74
	133	    	SECTION 7.03.	  	Individual Rights of Trustee.	  	75
	134	    	SECTION 7.04.	  	Trustee’s Disclaimer.	  	76
	135	    	SECTION 7.05.	  	Notice of Defaults.	  	76

  

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	 	    	 	 	 	  	Page


	136	    	SECTION 7.06.	 	Reports by Trustee to Holders.	  	76
	137	    	SECTION 7.07.	 	Compensation and Indemnity.	  	77
	138	    	SECTION 7.08.	 	Replacement of Trustee.	  	78
	139	    	SECTION 7.09.	 	Successor Trustee by Consolidation, Merger, etc.	  	79
	140	    	SECTION 7.10.	 	Eligibility; Disqualification.	  	79
	141	    	SECTION 7.11.	 	Preferential Collection of Claims Against Company.	  	79
	142	    	SECTION 7.12.	 	Paying Agents.	  	79
			
	143	    	ARTICLE EIGHT MODIFICATION AND WAIVER	  	80
				
	144	    	SECTION 8.01.	 	Without Consent of Holders.	  	80
	145	    	SECTION 8.02.	 	With Consent of Holders.	  	81
	146	    	SECTION 8.03.	 	Compliance with Trust Indenture Act.	  	82
	147	    	SECTION 8.04.	 	Revocation and Effect of Consents.	  	82
	148	    	SECTION 8.05.	 	Notation on or Exchange of Notes.	  	83
	149	    	SECTION 8.06.	 	Trustee To Sign Amendments, etc.	  	83
			
	150	    	ARTICLE NINE DISCHARGE OF INDENTURE; DEFEASANCE	  	83
				
	151	    	SECTION 9.01.	 	Discharge of Liability on Notes; Defeasance.	  	83
	152	    	SECTION 9.02.	 	Conditions to Defeasance.	  	85
	153	    	SECTION 9.03.	 	Deposited Money and Government Obligations To Be Held in	  	 
	154	    	 	 	 Trust; Other Miscellaneous Provisions.
	  	86
	155	    	SECTION 9.04.	 	Reinstatement.	  	87
	156	    	SECTION 9.05.	 	Moneys Held by Paying Agent.	  	87
	157	    	SECTION 9.06.	 	Moneys Held by Trustee.	  	87
			
	158	    	ARTICLE TEN MISCELLANEOUS	  	88
				
	159	    	SECTION 10.01.	 	Trust Indenture Act Controls.	  	88
	160	    	SECTION 10.02.	 	Notices.	  	88
	161	    	SECTION 10.03.	 	Communications by Holders with Other Holders.	  	90
	162	    	SECTION 10.04.	 	Certificate and Opinion as to Conditions Precedent.	  	90
	163	    	SECTION 10.05.	 	Statements Required in Certificate and Opinion.	  	90
	164	    	SECTION 10.06.	 	Rules by Trustee and Agents.	  	91
	165	    	SECTION 10.07.	 	Legal Holidays.	  	91
	166	    	SECTION 10.08.	 	Governing Law.	  	91
	167	    	SECTION 10.09.	 	No Adverse Interpretation of Other Agreements.	  	91
	168	    	SECTION 10.10.	 	Successors.	  	91
	169	    	SECTION 10.11.	 	Multiple Counterparts.	  	91
	170	    	SECTION 10.12.	 	Consent to Jurisdiction and Service; Waiver of Immunity.	  	91
	171	    	SECTION 10.13.	 	Conversion of Currency.	  	92
	172	    	SECTION 10.14.	 	Table of Contents, Headings, etc.	  	93
	173	    	SECTION 10.15.	 	Separability.	  	93

  

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	 	    	 	    	 	  	Page


	174	    	 	    	 	  	 
	175	    	 	    	 	  	 
	176	    	 	    	EXHIBITS	  	 
				
	177	    	Exhibit A.	    	Form of Note	  	A-1
	178	    	Exhibit B.	    	Form of Legend for Rule 144A Notes and Other Notes That	  	 
	179	    	 	    	  Are Restricted Notes	  	B-1
	180	    	Exhibit C.	    	Form of Legend for Regulation S Note	  	C-1
	181	    	Exhibit D.	    	Form of Legend for Global Note	  	D-1
	182	    	Exhibit E.	    	Form of Certificate To Be Delivered in Connection with	  	 
	183	    	 	    	  Transfers Pursuant to Regulation S	  	E-1
	184	    	Exhibit F.	    	Form of Certificate from Acquiring Institutional Accredited	  	 
	185	    	 	    	  Investor	  	F-1

  

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	186	  	 INDENTURE, dated as of October 29, 2004, is between ADVANCED MICRO

	187	  	DEVICES, INC., a Delaware corporation, as issuer (the “Company”), and WELLS FARGO
	188	  	BANK, N.A., as trustee (the “Trustee”).
		
	189	  	 Each party agrees as follows for the benefit of the other parties and for the equal and

	190	  	ratable benefit of the Holders of the Notes.
		
	191	  	ARTICLE ONE
	192	  	 
	193	  	DEFINITIONS AND INCORPORATION BY REFERENCE
		
	194	  	 SECTION 1.01. Definitions.

		
	195	  	 “Additional Assets” means:

		
	196	  	 (a) any Property (other than cash, Cash Equivalents and securities) to be

	197	  	 owned by the Company or any Restricted Subsidiary and used in a Related Business;

		
	198	  	 (b) Capital Stock of a Person that becomes a Restricted Subsidiary as a result

	199	  	 of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary

	200	  	 from any Person other than the Company or an Affiliate of the Company; provided,

	201	  	 however, that such Restricted Subsidiary is primarily engaged in a Related Business; or

		
	202	  	 (c) Capital Stock of a Permitted Joint Venture; provided however, that the

	203	  	 acquisition of such Capital Stock is permitted by Section 4.10.

		
	204	  	 “Additional Interest” has the meaning set forth in Exhibit A.

		
	205	  	 “Additional Notes” has the meaning set forth in Section 2.01.

		
	206	  	 “Affiliate” of any specified Person means:

		
	207	  	 (a) any other Person directly or indirectly controlling or controlled by or

	208	  	 under direct or indirect common control with such specified Person; or

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

		
	210	  	 (1) such specified Person;

		
	211	  	 (2) any Subsidiary of such specified Person; or

		
	212	  	 (3) any Person described in clause (a) above.










			
	213	  	 For the purposes of this definition, “control”, when used with respect to any

	214	  	 Person, means the power to direct the management and policies of such Person, directly

	215	  	 or indirectly, whether through the ownership of voting securities, by contract or

	216	  	 otherwise; and the terms “controlling” and “controlled” have meanings correlative to the

	217	  	 foregoing.

		
	218	  	 “Affiliate Transaction” has the meaning set forth in Section 4.14(a).

		
	219	  	 “Agent” means any Registrar, Paying Agent, or agent for service or notices and demands.

		
	220	  	 “Agent Members” has the meaning set forth in Section 2.16(a).

		
	221	  	 “Allocable Excess Proceeds” has the meaning set forth in Section 4.12(c).

		
	222	  	 “AMD Fab 36 KG” has the meaning set forth in Section 4.10(b).

		
	223	  	 “amend” means amend, modify, supplement, restate or amend and restate, including

	224	  	successively; and “amending” and “amended” have correlative meanings.
		
	225	  	 “Asset Sale” means any sale, lease, transfer, issuance or other disposition (or series of

	226	  	related sales, leases, transfers, issuances or dispositions) by the Company or any Restricted
	227	  	Subsidiary, including any disposition by means of a merger, consolidation or similar transaction
	228	  	(each referred to for the purposes of this definition as a “disposition”), of
		
	229	  	 (a) any shares of Capital Stock of a Restricted Subsidiary (other than

	230	  	 directors’ qualifying shares), or

		
	231	  	 (b) any other Property of the Company or any Restricted Subsidiary outside of

	232	  	 the ordinary course of business of the Company or such Restricted Subsidiary,

		
	233	  	other than, in the case of clause (a) or (b) above,
		
	234	  	 (1) any disposition by a Restricted Subsidiary to the Company or by the

	235	  	 Company or a Restricted Subsidiary to a Restricted Subsidiary,

		
	236	  	 (2) any disposition that constitutes a Permitted Investment or Restricted

	237	  	 Payment permitted by Section 4.10,

		
	238	  	 (3) any disposition effected in compliance with Section 5.01(a),

		
	239	  	 (4) the sale or other disposition of cash or Cash Equivalents,

		
	240	  	 (5) the exchange of assets held by the Company or a Restricted Subsidiary of

	241	  	 the Company for assets held by any Person (including Capital Stock of such Person),


  

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	242	  	 provided that (i) the assets received by the Company or such Restricted Subsidiary of the

	243	  	 Company in any such exchange will immediately constitute, be part of or used in a

	244	  	 Related Business, and (ii) any such assets received are of a comparable Fair Market

	245	  	 Value to the assets exchanged,

		
	246	  	 (6) any disposition in a single transaction or series of related transactions of

	247	  	 assets for aggregate consideration of less than $10.0 million, and

		
	248	  	 (7) any disposition of surplus, discontinued, damaged or worn-out equipment

	249	  	 or other immaterial assets no longer used in the ongoing business of the Company and its

	250	  	 Restricted Subsidiaries.

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

	252	  	date of determination,
		
	253	  	 (a) if such Sale and Leaseback Transaction is a Capital Lease Obligation, the

	254	  	 amount of Debt represented thereby according to the definition of “Capital Lease

	255	  	 Obligations,” and

		
	256	  	 (b) in all other instances, the present value (discounted at the interest rate implicit

	257	  	 in such transaction, determined in accordance with GAAP) of the total obligations of the

	258	  	 lessee for rental payments during the remaining term of the lease included in such Sale

	259	  	 and Leaseback Transaction (including any period for which such lease has been

	260	  	 extended).

		
	261	  	 “Average Life” means, as of any date of determination, with respect to any Debt or

	262	  	Preferred Stock, the quotient obtained by dividing:
		
	263	  	 (a) the sum of the product of the number of years (rounded to the nearest one-

	264	  	 twelfth of one year) from the date of determination to the dates of each successive

	265	  	 scheduled principal payment of such Debt or redemption or similar payment with respect

	266	  	 to such Preferred Stock multiplied by the amount of such payment by

		
	267	  	 (b) the sum of all such payments.

		
	268	  	 “Bankruptcy Law” means Title 11, United States Code, or any similar U.S. Federal or

	269	  	state law or law of any other jurisdiction relating to bankruptcy, insolvency, winding-up,
	270	  	liquidation, reorganization or relief of debtors.
		
	271	  	 “Base Currency” has the meaning set forth in Section 10.13(a).

		
	272	  	 “Board of Directors” means the board of directors of the Company.


  

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	273	  	 “Board Resolution” means a copy of a resolution of the Board of Directors, certified by

	274	  	the Secretary or an Assistant Secretary, or an equivalent officer, to have been duly adopted by
	275	  	the Board of Directors and to be in full force and effect on the date of such certification.
		
	276	  	 “Business Day” means a day other than a Saturday, Sunday or other day on which

	277	  	commercial banking institutions in New York City are authorized or required by law to close.
		
	278	  	 “Capital Lease Obligations” means any obligation under a lease that is required to be

	279	  	capitalized for financial reporting purposes in accordance with GAAP; and the amount of Debt
	280	  	represented by such obligation shall be the capitalized amount of such obligations determined in
	281	  	accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of
	282	  	rent or any other amount due under such lease prior to the first date upon which such lease may
	283	  	be terminated by the lessee without payment of a penalty. For purposes of Section 4.11, a
	284	  	Capital Lease Obligation shall be deemed secured by a Lien on the Property being leased.
		
	285	  	 “Capital Stock” means, with respect to any Person, any shares or other equivalents

	286	  	(however designated) of any class of corporate stock or partnership interests or any other
	287	  	participations, rights, warrants, options or other interests in the nature of an equity interest in
	288	  	such Person, including Preferred Stock, but excluding any debt security convertible or
	289	  	exchangeable into such equity interest.
		
	290	  	 “Capital Stock Sale Proceeds” means the aggregate cash proceeds received by the

	291	  	Company from the issuance or sale (other than to a Subsidiary of the Company or an employee
	292	  	stock ownership plan or trust established by the Company or any such Subsidiary for the benefit
	293	  	of their employees) by the Company of its Capital Stock (other than Disqualified Stock) after the
	294	  	Issue Date, net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees,
	295	  	discounts or commissions and brokerage, consultant and other fees actually Incurred in
	296	  	connection with such issuance or sale and net of taxes paid or payable as a result thereof.
		
	297	  	 “Cash Equivalents” means any of the following:

		
	298	  	 (a) United States dollars or euros;

		
	299	  	 (b) Investments in U.S. Government Obligations maturing within 365 days of

	300	  	 the date of acquisition thereof;

		
	301	  	 (c) certificates of deposit and eurodollar time deposits with maturities of 12

	302	  	 months or less from the date of acquisition, bankers’ acceptances with maturities not

	303	  	 exceeding 12 months and overnight bank deposits, in each case with any domestic

	304	  	 commercial bank or any commercial bank in a member state of the European Union

	305	  	 having capital and surplus in excess of $500.0 million;


  

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	306	  	 (d) repurchase obligations with a term of not more than seven days for

	307	  	 underlying securities of the types described in clauses (b) and (c) above entered into with

	308	  	 any financial institution meeting the qualifications specified in clause (c) above;

		
	309	  	 (e) commercial paper, having the highest rating obtainable from Moody’s or

	310	  	 Standard & Poor’s and in each case maturing within one year after the date of

	311	  	 acquisition; and

		
	312	  	 (f) money market funds at least 90% of the assets of which constitute Cash

	313	  	 Equivalents of the kinds described in clauses (a) through (e) of this definition.

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

		
	315	  	 (a) any “person” or “group” (as such terms are used in Sections 13(d) and

	316	  	 14(d) of the Exchange Act or any successor provisions to either of the foregoing),

	317	  	 including any group acting for the purpose of acquiring, holding, voting or disposing of

	318	  	 securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes the

	319	  	 “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, except that a

	320	  	 person will be deemed to have “beneficial ownership” of all shares that any such person

	321	  	 has the right to acquire, whether such right is exercisable immediately or only after the

	322	  	 passage of time), directly or indirectly, of 50% or more of the total voting power of the

	323	  	 Voting Stock of the Company; or

		
	324	  	 (b) the sale, transfer, assignment, lease, conveyance or other disposition,

	325	  	 directly or indirectly, of all or substantially all the Property of the Company and the

	326	  	 Restricted Subsidiaries, considered as a whole (other than a disposition of such Property

	327	  	 as an entirety or virtually as an entirety to a Wholly Owned Restricted Subsidiary) or the

	328	  	 Company merges or consolidates with or into any other Person or any other Person

	329	  	 merges or consolidates with or into the Company, in any such event pursuant to a

	330	  	 transaction in which the outstanding Voting Stock of the Company is reclassified into or

	331	  	 exchanged for cash, securities or other Property, other than any such transaction where:

		
	332	  	 (1) the outstanding Voting Stock of the Company is reclassified into or

	333	  	 exchanged for other Voting Stock of the Company or for Voting Stock of the

	334	  	 Surviving Person; and

		
	335	  	 (2) the holders of the Voting Stock of the Company immediately prior

	336	  	 to such transaction own, directly or indirectly, not less than a majority of the

	337	  	 Voting Stock of the Company or the Surviving Person immediately after such

	338	  	 transaction and in substantially the same proportion as before the transaction; or

		
	339	  	 (c) during any period of two consecutive years, individuals who at the

	340	  	 beginning of such period constituted the Board of Directors (together with any new


  

 -5- 









			
	341	  	 directors whose election or appointment by such Board or whose nomination for election

	342	  	 by the stockholders of the Company was approved by a vote of not less than a majority of

	343	  	 the directors then still in office who were either directors at the beginning of such period

	344	  	 or whose election or nomination for election was previously so approved) cease for any

	345	  	 reason to constitute at least a majority of the Board of Directors then in office; or

		
	346	  	 (d) the stockholders of the Company shall have approved any plan of

	347	  	 liquidation or dissolution of the Company.

		
	348	  	 “Change of Control Offer” has the meaning set forth in Section 4.08(a).

		
	349	  	 “Change of Control Payment Date” has the meaning set forth in Section 4.08(b).

		
	350	  	 “Change of Control Purchase Price” has the meaning set forth in Section 4.08(a).

		
	351	  	 “Claim” has the meaning set forth in Section 7.07.

		
	352	  	 “Clearstream” has the meaning set forth in Section 2.16.

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

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

		
	355	  	 “Company” means the party named as such in the first paragraph of this Indenture until a

	356	  	successor replaces such party pursuant to Article Five and thereafter means the successor.
		
	357	  	 “Consolidated Cash Flow” means, for any period, an amount equal to, for the Company

	358	  	and its Consolidated Restricted Subsidiaries:
		
	359	  	 (a) the sum of Consolidated Net Income for such period, plus the following to

	360	  	 the extent reducing Consolidated Net Income for such period:

		
	361	  	 (1) the provision for taxes based on income or profits or utilized in

	362	  	 computing net loss;

		
	363	  	 (2) Consolidated Fixed Charges;

		
	364	  	 (3) depreciation and amortization (including amortization of goodwill

	365	  	 and other intangibles but excluding amortization of prepaid cash expenses that

	366	  	 were paid in a prior period) of the Company and its Consolidated Restricted

	367	  	 Subsidiaries for such period; and


  

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	368	  	 (4) any other non-cash items (other than any such non-cash item to the

	369	  	 extent that it represents an accrual of, or reserve for, cash expenditures in any

	370	  	 future period); minus

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

	372	  	 (other than any such non-cash item to the extent that it will result in the receipt of cash

	373	  	 payments in any future period).

		
	374	  	 “Consolidated Current Liabilities” means, as of any date of determination, the aggregate

	375	  	amount of liabilities of the Company and its Consolidated Restricted Subsidiaries which may
	376	  	properly be classified as current liabilities (including taxes accrued as estimated), after
	377	  	eliminating:
		
	378	  	 (a) all intercompany items between the Company and any Restricted

	379	  	 Subsidiary or between Restricted Subsidiaries; and

		
	380	  	 (b) all current maturities of long-term Debt.

		
	381	  	 “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the

	382	  	ratio of:
		
	383	  	 (a) the aggregate amount of Consolidated Cash Flow for the most recent four

	384	  	 consecutive fiscal quarters for which internal financial statements are available; to

		
	385	  	 (b) Consolidated Fixed Charges for such four fiscal quarters;

		
	386	  	provided, however, that:
		
	387	  	 (1) if

		
	388	  	 (A) since the beginning of such period the Company or any

	389	  	 Restricted Subsidiary has Incurred any Debt that remains outstanding or

	390	  	 Repaid any Debt, or

		
	391	  	 (B) the transaction giving rise to the need to calculate the

	392	  	 Consolidated Fixed Charge Coverage Ratio is an Incurrence or

	393	  	 Repayment of Debt,

		
	394	  	 Consolidated Fixed Charges for such four-quarter period shall be calculated after giving

	395	  	 effect on a pro forma basis to such Incurrence or Repayment as if such Debt was Incurred

	396	  	 or Repaid on the first day of such four-quarter period; provided that, in the event of any

	397	  	 such Repayment of Debt, Consolidated Cash Flow for such period shall be calculated as

	398	  	 if the Company or such Restricted Subsidiary had not earned any interest income actually

	399	  	 earned during such period in respect of the funds used to Repay such Debt; and


  

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	400	  	 (2) if

		
	401	  	 (A) since the beginning of such period the Company or any

	402	  	 Restricted Subsidiary shall have made any Asset Sale or an Investment

	403	  	 (by merger or otherwise) in any Restricted Subsidiary (or any Person that

	404	  	 becomes a Restricted Subsidiary) or an acquisition of Property which

	405	  	 constitutes all or substantially all of an operating unit of a business,

		
	406	  	 (B) the transaction giving rise to the need to calculate the

	407	  	 Consolidated Fixed Charge Coverage Ratio is such an Asset Sale,

	408	  	 Investment or acquisition, or

		
	409	  	 (C) since the beginning of such period any Person, that

	410	  	 subsequently became a Restricted Subsidiary or was merged with or into

	411	  	 the Company or any Restricted Subsidiary since the beginning of such

	412	  	 period, shall have made such an Asset Sale, Investment or acquisition,

		
	413	  	 then Consolidated Cash Flow for such four-quarter period shall be calculated after giving

	414	  	 pro forma effect to such Asset Sale, Investment or acquisition as if such Asset Sale,

	415	  	 Investment or acquisition had occurred on the first day of such four-quarter period.

		
	416	  	 If any Debt bears a floating rate of interest and is being given pro forma effect, the

	417	  	interest expense on such Debt shall be calculated as if the base interest rate in effect for such
	418	  	floating rate of interest on the date of determination had been the applicable base interest rate for
	419	  	the entire period (taking into account any Interest Rate Agreement applicable to such Debt if
	420	  	such Interest Rate Agreement has a remaining term in excess of 12 months). In the event the
	421	  	Capital Stock of any Restricted Subsidiary is sold during the period, the Company shall be
	422	  	deemed, for purposes of clause (1) above, to have Repaid during such period the Debt of such
	423	  	Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no
	424	  	longer liable for such Debt after such sale.
		
	425	  	 “Consolidated Fixed Charges” means, for any period, the total interest expense of the

	426	  	Company and its Consolidated Restricted Subsidiaries, plus, to the extent not included in such
	427	  	total interest expense, and to the extent Incurred by the Company or its Restricted Subsidiaries,
	428	  	without duplication,
		
	429	  	 (a) interest expense attributable to leases constituting part of a Sale and

	430	  	 Leaseback Transaction and to Capital Lease Obligations,

		
	431	  	 (b) amortization of debt discount and debt issuance costs, including

	432	  	 commitment fees,

		
	433	  	 (c) capitalized interest,


  

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	434	  	 (d) non-cash interest expense,

		
	435	  	 (e) commissions, discounts and other fees and charges owed with respect to

	436	  	 letters of credit and banker’s acceptance financing,

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

	438	  	 fees) related to Interest Rate Agreements,

		
	439	  	 (g) Disqualified Stock Dividends,

		
	440	  	 (h) Preferred Stock Dividends,

		
	441	  	 (i) interest Incurred in connection with Investments in discontinued

	442	  	 operations, and

		
	443	  	 (j) interest actually paid by the Company or any Restricted Subsidiary under

	444	  	 any Guarantee of Debt of any other Person.

		
	445	  	 “Consolidated Net Income” means, for any period, the net income (loss) of the Company

	446	  	and its Consolidated Restricted Subsidiaries; provided, however, that there shall not be included
	447	  	in such Consolidated Net Income:
		
	448	  	 (a) any net income of any Person (other than the Company) if such Person is

	449	  	 not a Restricted Subsidiary, except that, subject to the exclusion contained in clause (c)

	450	  	 below, equity of the Company and its Consolidated Restricted Subsidiaries in the net

	451	  	 income of any such Person for such period shall be included in such Consolidated Net

	452	  	 Income up to the aggregate amount of cash distributed by such Person during such period

	453	  	 to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in

	454	  	 the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations

	455	  	 contained in clause (b) below);

		
	456	  	 (b) any net income of any Restricted Subsidiary if such Restricted Subsidiary

	457	  	 is subject to restrictions, directly or indirectly, on the payment of dividends or the making

	458	  	 of distributions, directly or indirectly, to the Company, except that, subject to the

	459	  	 exclusion contained in clause (d) below, the equity of the Company and its Consolidated

	460	  	 Restricted Subsidiaries in the net income of any such Restricted Subsidiary for such

	461	  	 period shall be included in such Consolidated Net Income up to the greater of (i) the

	462	  	 aggregate amount of cash actually distributed by such Restricted Subsidiary during such

	463	  	 period to the Company or another Restricted Subsidiary as a dividend or other

	464	  	 distribution (subject, in the case of a dividend or other distribution to another Restricted

	465	  	 Subsidiary, to the limitation contained in this clause (b)) and (ii) the aggregate amount of

	466	  	 cash that could have been distributed by such Restricted Subsidiary during such period to

	467	  	 the Company or another Restricted Subsidiary as a dividend or other distribution (subject,


  

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	468	  	 in the case of a dividend or other distribution to another Restricted Subsidiary, to the

	469	  	 limitation contained in this clause (b));

		
	470	  	 (c) any gain or loss realized upon the sale or other disposition of any Property

	471	  	 of the Company or any of its consolidated Subsidiaries (including pursuant to any Sale

	472	  	 and Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary

	473	  	 course of business;

		
	474	  	 (d) any net after-tax extraordinary gain or loss;

		
	475	  	 (e) to the extent non-cash, any unusual, non-operating or non-recurring gain

	476	  	 or loss;

		
	477	  	 (f) the cumulative effect of a change in accounting principles;

		
	478	  	 (g) any non-cash compensation expense realized for grants of performance

	479	  	 shares, stock options or other rights to officers, directors and employees of the Company

	480	  	 or any Restricted Subsidiary; provided that such shares, options or other rights can be

	481	  	 redeemed at the option of the holder only for Capital Stock of the Company (other than

	482	  	 Disqualified Stock);

		
	483	  	 (h) any cash or non-cash expenses attributable to the closing of manufacturing

	484	  	 facilities or the lay-off of employees, in either case which are recorded as “restructuring

	485	  	 and other special charges” in accordance with GAAP; and

		
	486	  	 (i) gains or losses due to fluctuations in currency values and the related tax

	487	  	 effect.

		
	488	  	 Notwithstanding the foregoing, for purposes of Section 4.10 only, there shall be excluded

	489	  	from Consolidated Net Income any dividends, repayments of loans or advances or other transfers
	490	  	of Property from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the
	491	  	extent such dividends, repayments or transfers increase the amount of Restricted Payments
	492	  	permitted under clause (a)(3)(iv) thereof.
		
	493	  	 “Consolidated Net Tangible Assets” means Total Assets (less accumulated depreciation

	494	  	and amortization, allowances for doubtful receivables, other applicable reserves and other
	495	  	properly deductible items) of the Company and its Restricted Subsidiaries, after deducting
	496	  	therefrom Consolidated Current Liabilities and, to the extent otherwise included, the amounts of
	497	  	(without duplication):
		
	498	  	 (a) the excess of cost over Fair Market Value of assets or businesses acquired;


  

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	499	  	 (b) any revaluation or other write-up in book value of assets subsequent to the

	500	  	 last day of the fiscal quarter of the Company immediately preceding the Issue Date as a

	501	  	 result of a change in the method of evaluation in accordance with GAAP;

		
	502	  	 (c) unamortized debt discount and expenses and other unamortized deferred

	503	  	 charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses,

	504	  	 organization or developmental expenses and other intangible items;

		
	505	  	 (d) minority interests in consolidated Subsidiaries held by Persons other than

	506	  	 the Company or any Restricted Subsidiary;

		
	507	  	 (e) treasury stock;

		
	508	  	 (f) cash or securities set aside and held in a sinking or other analogous fund

	509	  	 established for the purpose of redemption or other retirement of Capital Stock to the

	510	  	 extent such obligation is not reflected in Consolidated Current Liabilities; and

		
	511	  	 (g) Investments in and assets of Unrestricted Subsidiaries.

		
	512	  	 “Convertible Notes” means (1) the Company’s $500 million 4.75% convertible senior

	513	  	debentures due 2022 issued pursuant to the indenture, dated as of January 29, 2002, by and
	514	  	among the Company and The Bank of New York, as trustee, and (2) the Company’s $402.5
	515	  	million 4.50% convertible senior notes due 2007 issued pursuant to the indenture, dated as of
	516	  	November 25, 2002, by and among the Company and The Bank of New York, as trustee, in each
	517	  	case, as amended, restated, modified, renewed, refunded, replaced or Refinanced in whole or in
	518	  	part from time to time.
		
	519	  	 “Corporate Trust Office” means the principal office of the Trustee at which at any time

	520	  	its corporate trust business shall be administered, which office at the date hereof is located at 707
	521	  	Wilshire Boulevard, 17th Floor, Los Angeles, California
90017, Attention Corporate Trust
	522	  	Services, or such other address as the Trustee may designate from time to time by notice to the
	523	  	Holders and the Company, or the principal Corporate Trust Office of any successor Trustee (or
	524	  	such other address as such successor Trustee may designate from time to time by notice to the
	525	  	Holders and the Company).
		
	526	  	 “Covenant Defeasance” has the meaning set forth in Section 9.01(b).

		
	527	  	 “Credit Facilities” means, with respect to the Company or any Restricted Subsidiary, one

	528	  	or more debt or commercial paper facilities with banks or other institutional lenders providing
	529	  	for revolving credit loans, term loans, notes, receivables or inventory financing (including
	530	  	through the sale of receivables or inventory to such lenders or to special purpose, bankruptcy
	531	  	remote entities formed to borrow from such lenders against such receivables or inventory) or
	532	  	trade or standby letters of credit, in each case as any such facility may be revised, restructured or

  

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	533	  	Refinanced from time to time, including to extend the maturity thereof, to increase the amount of
	534	  	commitments thereunder (provided that any such increase is permitted under Section 4.09), or to
	535	  	add Restricted Subsidiaries as additional borrowers or guarantors thereunder, whether by the
	536	  	same or any other agent, lender or group of lenders or investors and whether such revision,
	537	  	restructuring or Refinancing is under one or more Debt facilities or commercial paper facilities,
	538	  	indentures or other agreements, in each case with banks or other institutional lenders or trustees
	539	  	or investors providing for revolving credit loans, term loans, notes or letters or credit, together
	540	  	with related documents thereto (including, without limitation, any guaranty agreements and
	541	  	security documents). Notwithstanding the foregoing, Credit Facilities shall not include (x) Debt
	542	  	outstanding on the Issue Date evidenced by the Convertible Notes or (y) Debt of the Company
	543	  	evidenced by the Notes (excluding any Additional Notes) issued in this offering and any
	544	  	Exchange Notes (excluding any Additional Notes) pursuant to the Registration Rights
	545	  	Agreement.
		
	546	  	 “Currency Exchange Protection Agreement” means, in respect of a Person, any foreign

	547	  	exchange contract, currency swap agreement, currency option or other similar agreement or
	548	  	arrangement designed to protect such Person against fluctuations in currency exchange rates.
		
	549	  	 “Custodian” means any receiver, interim receiver, receiver and manager, trustee,

	550	  	assignee, liquidator, custodian or similar official under any Bankruptcy Law.
		
	551	  	 “Debt” means, with respect to any Person on any date of determination (without

	552	  	duplication):
		
	553	  	 (a) the principal of and premium (if any, but only in the event such premium

	554	  	 has become due) in respect of:

		
	555	  	 (1) debt of such Person for borrowed money; and

		
	556	  	 (2) debt evidenced by notes, debentures, bonds or other similar

	557	  	 instruments for the payment of which such Person is responsible or liable;

		
	558	  	 (b) all Capital Lease Obligations of such Person and all Attributable Debt in

	559	  	 respect of Sale and Leaseback Transactions entered into by such Person;

		
	560	  	 (c) all obligations of such Person representing the deferred purchase price of

	561	  	 Property, all conditional sale obligations of such Person and all obligations of such

	562	  	 Person under any title retention agreement (but excluding trade accounts payable arising

	563	  	 in the ordinary course of business);

		
	564	  	 (d) all obligations of such Person for the reimbursement of any obligor on any

	565	  	 letter of credit, banker’s acceptance or similar credit transaction (other than obligations

	566	  	 with respect to letters of credit securing obligations (other than obligations described in


  

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	567	  	 (a) through (c) above) entered into in the ordinary course of business of such Person to

	568	  	 the extent such letters of credit are not drawn upon or, if and to the extent drawn upon,

	569	  	 such drawing is reimbursed no later than the third Business Day following receipt by

	570	  	 such Person of a demand for reimbursement following payment on the letter of credit);

		
	571	  	 (e) the amount of all obligations of such Person with respect to the

	572	  	 Repayment of any Disqualified Stock or, with respect to any Subsidiary of such Person,

	573	  	 any Preferred Stock (but excluding, in each case, any accrued dividends);

		
	574	  	 (f) all obligations of the type referred to in clauses (a) through (e) above, and

	575	  	 all dividends of other Persons the payment of which, in either case, such Person is

	576	  	 responsible or liable for, directly or indirectly, as obligor, guarantor or otherwise,

	577	  	 including by means of any Guarantee;

		
	578	  	 (g) all obligations of the type referred to in clauses (a) through (f) above of

	579	  	 other Persons secured by any Lien on any Property of such Person (whether or not such

	580	  	 obligation is assumed by such Person), the amount of such obligation being deemed to be

	581	  	 the lesser of the Fair Market Value of such Property or the amount of the obligation so

	582	  	 secured; and

		
	583	  	 (h) to the extent not otherwise included in this definition, Hedging

	584	  	 Obligations of such Person.

		
	585	  	 The amount of Debt of any Person at any date shall be the outstanding balance, or the

	586	  	accreted value of such Debt in the case of Debt issued with original issue discount, at such date
	587	  	of all unconditional obligations as described above and the maximum liability, upon the
	588	  	occurrence of the contingency giving rise to the obligation, of any contingent obligations at such
	589	  	date. The amount of Debt represented by a Hedging Obligation shall be equal to:
		
	590	  	 (1) zero if such Hedging Obligation has been Incurred pursuant to Section

	591	  	 4.09(b)(6) or (7); or

		
	592	  	 (2) the notional amount of such Hedging Obligation if not Incurred pursuant

	593	  	 to such clauses.

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

	595	  	an Event of Default.
		
	596	  	 “Depository” or “DTC” means, with respect to the Notes issued in the form of one or

	597	  	more Global Notes, The Depository Trust Company or another Person designated as Depository
	598	  	by the Company, which Person must be a clearing agency registered under the Exchange Act.

  

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	599	  	 “Disqualified Stock” means any Capital Stock of the Company or any of its Restricted

	600	  	Subsidiaries that by its terms (or by the terms of any security into which it is convertible or for
	601	  	which it is exchangeable, in either case at the option of the holder thereof) or otherwise:
		
	602	  	 (a) matures or is mandatorily redeemable pursuant to a sinking fund

	603	  	 obligation or otherwise;

		
	604	  	 (b) is or may become redeemable or repurchaseable at the option of the holder

	605	  	 thereof, in whole or in part; or

		
	606	  	 (c) is convertible or exchangeable at the option of the holder thereof for Debt

	607	  	 or Disqualified Stock,

		
	608	  	on or prior to, in the case of clause (a), (b) or (c), 123 days following the Stated Maturity of the
	609	  	Notes. Notwithstanding the foregoing, any Capital Stock that would constitute Disqualified
	610	  	Stock solely because the holders of the Capital Stock have the right to require the Company to
	611	  	repurchase such Capital Stock upon the occurrence of a Change of Control or an Asset Sale will
	612	  	not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company
	613	  	may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such
	614	  	repurchase or redemption complies with Section 4.10.
		
	615	  	 “Disqualified Stock Dividends” means all dividends with respect to Disqualified Stock of

	616	  	the Company held by Persons other than a Restricted Subsidiary. The amount of any such
	617	  	dividend shall be equal to the quotient of such dividend divided by the difference between one
	618	  	and the maximum statutory federal income tax rate (expressed as a decimal number between 1
	619	  	and 0) then applicable to the Company.
		
	620	  	 “Euroclear” has the meaning set forth in Section 2.16(a).

		
	621	  	 “Event of Default” has the meaning set forth in Section 6.01.

		
	622	  	 “Excess Proceeds” has the meaning set forth in Section 4.12(c).

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

		
	624	  	 “Exchange Notes” has the same meaning as “New Securities” set forth in the Registration

	625	  	Rights Agreement.
		
	626	  	 “Exchange Offer” has the meaning set forth in Section 8 of Exhibit A.

		
	627	  	 “Fair Market Value” means, with respect to any Property, the price that could be

	628	  	negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a
	629	  	willing buyer, neither of whom is under undue pressure or compulsion to complete the
	630	  	transaction. Fair Market Value shall be determined, except as otherwise provided,

  

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	631	  	 (a) if such Property has a Fair Market Value equal to or less than $ 25.0

	632	  	 million, by any Officer of the Company, or

		
	633	  	 (b) if such Property has a Fair Market Value in excess of $25.0 million, by at

	634	  	 least a majority of the Board of Directors and evidenced by a Board Resolution dated

	635	  	 within 30 days of the relevant transaction.

		
	636	  	 “GAAP” means generally accepted accounting principles consistently applied as in effect

	637	  	in the United States from time to time.
		
	638	  	 “Global Notes” has the meaning set forth in Section 2.16(a).

		
	639	  	 “Guarantee” means any obligation, contingent or otherwise, of any Person directly or

	640	  	indirectly guaranteeing any Debt of any other Person and any obligation, direct or indirect,
	641	  	contingent or otherwise, of such Person to purchase or pay (or advance or supply funds for the
	642	  	purchase or payment of) such Debt of such other Person (whether arising by virtue of partnership
	643	  	arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to
	644	  	take-or-pay or to maintain financial statement conditions or otherwise), provided, however, that
	645	  	the term “Guarantee” shall not include:
		
	646	  	 (1) endorsements for collection or deposit in the ordinary course of business;

	647	  	 or

		
	648	  	 (2) a contractual commitment by one Person to invest in another Person for so

	649	  	 long as such Investment is reasonably expected to constitute a Permitted Investment

	650	  	 under clause (a), (b) or (c) of the definition of “Permitted Investment”.

		
	651	  	The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” shall
	652	  	mean any Person Guaranteeing any obligation.
		
	653	  	 “Hedging Obligation” of any Person means any obligation of such Person pursuant to any

	654	  	Interest Rate Agreement, Currency Exchange Protection Agreement or any other similar
	655	  	agreement or arrangement.
		
	656	  	 “Holder” or Noteholder” means a Person in whose name a Note is registered in the Note

	657	  	register.
		
	658	  	 “Incur” means, with respect to any Debt or other obligation of any Person, to create,

	659	  	issue, incur (by merger, conversion, exchange or otherwise), extend, assume, Guarantee or
	660	  	become liable in respect of such Debt or other obligation or the recording, as required pursuant
	661	  	to GAAP or otherwise, of any such Debt or obligation on the balance sheet of such Person (and
	662	  	“Incurrence” and “Incurred” shall have meanings correlative to the foregoing); provided,
	663	  	however, that a change in GAAP that results in an obligation of such Person that exists at such

  

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	664	  	time, and is not theretofore classified as Debt, becoming Debt shall not be deemed an Incurrence
	665	  	of such Debt; provided further, however, that any Debt or other obligations of a Person existing
	666	  	at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or
	667	  	otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a
	668	  	Subsidiary; and provided further, however, that solely for purposes of determining compliance
	669	  	with Section 4.09, amortization of debt discount shall not be deemed to be the Incurrence of
	670	  	Debt, provided that in the case of Debt sold at a discount, the amount of such Debt Incurred shall
	671	  	at all times be the aggregate principal amount at Stated Maturity.
		
	672	  	 “Indenture” means this Indenture as amended, restated or supplemented from time to

	673	  	time.
		
	674	  	 “Independent Financial Advisor” means an investment banking firm of national standing

	675	  	or any third-party appraiser with national standing in the Untied States, provided that such firm
	676	  	or appraiser is not an Affiliate of the Company.
		
	677	  	 “Initial Purchasers” means Citigroup Global Markets Inc., Credit Suisse First Boston

	678	  	LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.,
	679	  	Incorporated.
		
	680	  	 “Institutional Accredited Investor” or “IAI” shall have the meaning specified in Rule

	681	  	501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
		
	682	  	 “interest” means, with respect to the Notes, interest and Additional Interest.

		
	683	  	 “Interest Payment Date” means November 1 and May 1 of each year.

		
	684	  	 “Interest Rate Agreement” means, for any Person, any interest rate swap agreement,

	685	  	interest rate cap agreement, interest rate collar agreement or other similar agreement designed to
	686	  	protect against fluctuations in interest rates.
		
	687	  	 “Investment” by any Person means any direct or indirect loan (other than advances to

	688	  	customers in the ordinary course of business that are recorded as accounts receivable on the
	689	  	balance sheet of such Person), advance or other extension of credit or capital contribution (by
	690	  	means of transfers of cash or other Property to others or payments for Property or services for the
	691	  	account or use of others, or otherwise) to, or Incurrence of a Guarantee of any obligation of, or
	692	  	purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence
	693	  	of Debt issued by, any other Person. For purposes of Sections 4.10 and 4.15 and the definition of
	694	  	“Restricted Payment,” the term “Investment” shall include (a) upon the issuance, sale or other
	695	  	disposition of Capital Stock of any Restricted Subsidiary to a Person other than the Company or
	696	  	another Restricted Subsidiary as a result of which such Restricted Subsidiary ceases to be a
	697	  	Restricted Subsidiary, the Fair Market Value of the remaining interest, if any, in such former
	698	  	Restricted Subsidiary held by the Company or such other Restricted Subsidiary, and (b) at the

  

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	699	  	time that a Subsidiary of the Company is designated an Unrestricted Subsidiary (excluding the
	700	  	designation of Spansion and its Subsidiaries as Unrestricted Subsidiaries on the Issue Date), the
	701	  	portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market
	702	  	Value of the net assets of such Subsidiary; provided, however, that upon a redesignation of any
	703	  	Unrestricted Subsidiary (including Spansion and its Subsidiaries) as a Restricted Subsidiary, the
	704	  	Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted
	705	  	Subsidiary of an amount (if positive) equal to:
		
	706	  	 (a) the Company’s “Investment” in such Subsidiary at the time of such

	707	  	 redesignation; less

		
	708	  	 (b) the portion of the Fair Market Value of the net assets of such Subsidiary at

	709	  	 the time of such redesignation (proportionate to the Company’s equity interest in such

	710	  	 Subsidiary).

		
	711	  	 In determining the amount of any Investment made by transfer of any Property

	712	  	 other than cash, such Property shall be valued at its Fair Market Value at the time of such

	713	  	 Investment.

		
	714	  	 “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the

	715	  	equivalent) by Moody’s and BBB- (or the equivalent) by S&P (or the equivalent ratings from
	716	  	any other relevant Rating Agency).
		
	717	  	 “Issue Date” means October 29, 2004.

		
	718	  	 “Judgment Currency” has the meaning set forth in Section 10.13(a).

		
	719	  	 “Legal Defeasance” has the meaning set forth in Section 9.01(b).

		
	720	  	 “Legal Holiday” has the meaning set forth in Section 10.07.

		
	721	  	 “Lien” means, with respect to any Property of any Person, any mortgage or deed of trust,

	722	  	pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement
	723	  	(other than any easement not materially impairing usefulness or marketability), encumbrance,
	724	  	preference, priority or other security agreement or preferential arrangement of any kind or nature
	725	  	whatsoever on or with respect to such Property (including any Capital Lease Obligation,
	726	  	conditional sale or other title retention agreement having substantially the same economic effect
	727	  	as any of the foregoing or any Sale and Leaseback Transaction).
		
	728	  	 “Maturity Date” when used with respect to any Note, means the date on which the

	729	  	principal amount of such Note becomes due and payable as therein or herein provided.
		
	730	  	 “Moody’s” means Moody’s Investor Services, Inc. or any successor to the rating agency

	731	  	business thereof.

  

 -17- 









			
	732	  	 “Net Available Cash” from any Asset Sale means cash payments received therefrom

	733	  	(including any cash payments received by way of deferred payment of principal pursuant to a
	734	  	note or installment receivable or otherwise, but only as and when received, but excluding any
	735	  	other consideration received in the form of assumption by the acquiring Person of Debt or other
	736	  	obligations or liabilities relating to the Property that is the subject of such Asset Sale or received
	737	  	in any other non-cash form), in each case net of:
		
	738	  	 (a) all legal, title and recording tax expenses, commissions and other fees and

	739	  	 expenses Incurred, and all Federal, state, provincial, foreign and local taxes required to be

	740	  	 accrued as a liability under GAAP, as a consequence of such Asset Sale;

		
	741	  	 (b) all payments made on or in respect of any Debt that is secured by any

	742	  	 Property subject to such Asset Sale, in accordance with the terms of any Lien upon such

	743	  	 Property, or which must by its terms, or in order to obtain a necessary consent to such

	744	  	 Asset Sale, or by applicable law, be repaid out of the proceeds from such Asset Sale;

		
	745	  	 (c) all distributions and other payments required to be made to minority

	746	  	 interest holders in Subsidiaries or joint ventures as a result of such Asset Sale; and

		
	747	  	 (d) the deduction of appropriate amounts provided by the seller as a reserve,

	748	  	 in accordance with GAAP, against any liabilities associated with the Property disposed of

	749	  	 in such Asset Sale and retained by the Company or any Restricted Subsidiary after such

	750	  	 Asset Sale.

		
	751	  	 “Non-Recourse Debt” means Debt:

		
	752	  	 (a) as to which neither the Company nor any Restricted Subsidiary provides

	753	  	 any guarantee or credit support of any kind (including any undertaking, guarantee,

	754	  	 indemnity, agreement or instrument that would constitute Debt) or is directly or indirectly

	755	  	 liable (as a guarantor or otherwise) or as to which there is any recourse to the assets of the

	756	  	 Company; and

		
	757	  	 (b) no default with respect to which (including any rights that the Holders

	758	  	 thereof may have to take enforcement action against an Unrestricted Subsidiary) would

	759	  	 permit (upon notice, lapse of time or both) any holder of other Debt of the Company or

	760	  	 any Restricted Subsidiary to declare a default under such other Debt or cause the payment

	761	  	 therefor to be accelerated or payable prior to its stated maturity.

		
	762	  	 “Non-U.S. Person” means a Person who is not a U.S. person, as defined in Regulation S.

		
	763	  	 “Notes” means the 7.75% Senior Notes due 2012 issued by the Company, including,

	764	  	without limitation, the Exchange Notes, treated as a single class of securities, as amended from
	765	  	time to time in accordance with the terms hereof, that are issued pursuant to this Indenture.

  

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	766	  	 “Notice of Acceleration” has the meaning set forth in Section 6.01.

		
	767	  	 “Notice of Default” has the meaning set forth in Section 6.01.

		
	768	  	 “Offer Amount” has the meaning set forth in Section 4.12(e).

		
	769	  	 “Offer Period” has the meaning set forth in Section 4.12(e)

		
	770	  	 “Officer” means the Chief Executive Officer, the President, the Chief Financial Officer or

	771	  	any Executive Vice President of the Company.
		
	772	  	 “Officers’ Certificate” means a certificate signed by two Officers of the Company, at

	773	  	least one of whom shall be the principal executive officer or principal financial officer of the
	774	  	Company, and delivered to the Trustee.
		
	775	  	 “Opinion of Counsel” means a written opinion from legal counsel who is reasonably

	776	  	acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the
	777	  	Trustee.
		
	778	  	 “Paying Agent” has the meaning set forth in Section 2.04.

		
	779	  	 “Permitted Debt” has the meaning set forth in Section 4.09(b).

		
	780	  	 “Permitted Investment” means any Investment by the Company or a Restricted

	781	  	Subsidiary in existence on the Issue Date or in:
		
	782	  	 (a) the Company or any Restricted Subsidiary;

		
	783	  	 (b) any Person that will, upon the making of such Investment, become a

	784	  	 Restricted Subsidiary;

		
	785	  	 (c) any Person if as a result of such Investment such Person is merged or

	786	  	 consolidated with or into, or transfers or conveys all or substantially all of its Property to,

	787	  	 the Company or a Restricted Subsidiary;

		
	788	  	 (d) Cash Equivalents;

		
	789	  	 (e) receivables owing to the Company or a Restricted Subsidiary, if created or

	790	  	 acquired in the ordinary course of business and payable or dischargeable in accordance

	791	  	 with customary trade terms; provided, however, that such trade terms may include such

	792	  	 concessionary trade terms as the Company or such Restricted Subsidiary deems

	793	  	 reasonable under the circumstances;


  

 -19- 









			
	794	  	 (f) payroll, travel and similar advances to cover matters that are expected at

	795	  	 the time of such advances ultimately to be treated as expenses for accounting purposes

	796	  	 and that are made in the ordinary course of business;

		
	797	  	 (g) loans and advances to employees made in the ordinary course of business

	798	  	 consistent with past practices of the Company or a Restricted Subsidiary, as the case may

	799	  	 be; provided that such loans and advances do not exceed $10.0 million in the aggregate at

	800	  	 any one time outstanding;

		
	801	  	 (h) stock, obligations or other securities received in settlement of debts

	802	  	 created in the ordinary course of business and owing to the Company or a Restricted

	803	  	 Subsidiary or in satisfaction of judgments;

		
	804	  	 (i) any Person to the extent such Investment represents the non-cash portion

	805	  	 of the consideration received in connection with an Asset Sale consummated in

	806	  	 compliance with Section 4.12;

		
	807	  	 (j) Investments in Permitted Joint Ventures that do not exceed 15% of Total

	808	  	 Assets in the aggregate outstanding at any one time;

		
	809	  	 (k) any acquisition of assets or Capital Stock solely in exchange for the

	810	  	 issuance of Capital Stock (other than Disqualified Stock) of the Company;

		
	811	  	 (l) Investments represented by Hedging Obligations if such Hedging

	812	  	 Obligation has been Incurred pursuant to Section 4.09(b)(6) or (7);

		
	813	  	 (m) Guarantees by the Company and its Restricted Subsidiaries of Debt and

	814	  	 other obligations of Spansion and its Subsidiaries and any payments made pursuant to

	815	  	 such Guarantees, provided that such Guarantees (plus, without duplication, the aggregate

	816	  	 amount actually paid by the Company and its Restricted Subsidiaries after the Issue Date

	817	  	 pursuant to such Guarantees and not reimbursed to them by Spansion and its

	818	  	 Subsidiaries) do not exceed $500.0 million outstanding at any one time; and

		
	819	  	 (n) other Investments made for Fair Market Value that do not exceed $100.0

	820	  	 million in the aggregate outstanding at any one time.

		
	821	  	 “Permitted Joint Venture” means any Person which is, directly or indirectly,

	822	  	 engaged principally in a Related Business, and the Capital Stock, or securities convertible

	823	  	 into Capital Stock, of which is owned by the Company and one or more Persons other

	824	  	 than the Company or any of its Affiliates.

		
	825	  	 “Permitted Liens” means:

		
	826	  	 (a) Liens securing the Notes;


  

 -20- 









			
	827	  	 (b) Liens to secure Debt permitted to be Incurred pursuant to Section

	828	  	 4.09(b)(2);

		
	829	  	 (c) Liens to secure Debt permitted to be Incurred pursuant to Section

	830	  	 4.09(b)(3); provided that any such Lien may not extend to any Property of the Company,

	831	  	 other than the Property acquired, constructed or leased with the proceeds of any such

	832	  	 Debt and any improvements or accessions to such Property;

		
	833	  	 (d) Liens for taxes, assessments or governmental charges or levies on the

	834	  	 Property of the Company if the same shall not at the time be delinquent or thereafter can

	835	  	 be paid without penalty, or are being contested in good faith and by appropriate

	836	  	 proceedings promptly instituted and diligently concluded; provided that any reserve or

	837	  	 other appropriate provision that shall be required in conformity with GAAP shall have

	838	  	 been made therefor;

		
	839	  	 (e) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and

	840	  	 mechanics’ Liens and other similar Liens, on the Property of the Company arising in the

	841	  	 ordinary course of business and securing payment of obligations that are not more than

	842	  	 60 days past due or are being contested in good faith and by appropriate proceedings;

		
	843	  	 (f) Liens on the Property of the Company Incurred in the ordinary course of

	844	  	 business to secure performance of obligations with respect to statutory or regulatory

	845	  	 requirements, performance or return-of-money bonds, surety bonds or other obligations

	846	  	 of a like nature and Incurred in a manner consistent with industry practice, in each case

	847	  	 which are not Incurred in connection with the borrowing of money, the obtaining of

	848	  	 advances or credit or the payment of the deferred purchase price of Property and which

	849	  	 do not in the aggregate impair in any material respect the use of Property in the operation

	850	  	 of the business of the Company and the Restricted Subsidiaries taken as a whole;

		
	851	  	 (g) Liens on Property at the time the Company acquired such Property,

	852	  	 including any acquisition by means of a merger or consolidation with or into the

	853	  	 Company; provided, however, that any such Lien may not extend to any other Property of

	854	  	 the Company; provided, further, however, that such Liens shall not have been Incurred in

	855	  	 anticipation of or in connection with the transaction or series of transactions pursuant to

	856	  	 which such Property was acquired by the Company;

		
	857	  	 (h) pledges or deposits by the Company under workers’ compensation laws,

	858	  	 unemployment insurance laws or similar legislation, or good faith deposits in connection

	859	  	 with bids, tenders, contracts (other than for the payment of Debt) or leases to which the

	860	  	 Company is party, or deposits to secure public or statutory obligations of the Company,

	861	  	 surety or appeal bonds, performance bonds or deposits for the payment of rent or margin

	862	  	 deposits, in each case Incurred in the ordinary course of business;


  

 -21- 









			
	863	  	 (i) utility easements, building restrictions and such other encumbrances or

	864	  	 charges against real Property as are of a nature generally existing with respect to

	865	  	 properties of a similar character;

		
	866	  	 (j) Liens securing Debt permitted to be Incurred with respect to Hedging

	867	  	 Obligations pursuant to Section 4.09 or collateral for such Debt to which the Hedging

	868	  	 Obligations relate;

		
	869	  	 (k) Liens on the Capital Stock of any Unrestricted Subsidiary to secure Debt

	870	  	 of that Unrestricted Subsidiary;

		
	871	  	 (l) Liens in favor of the Company;

		
	872	  	 (m) Liens existing on the Issue Date not otherwise described in clauses (a)

	873	  	 through (1) above;

		
	874	  	 (n) Liens on the Property of the Company to secure any Refinancing, in whole

	875	  	 or in part, of any Debt secured by any Lien referred to in clause (c), (g) or (m) above;

	876	  	 provided however, that any such Lien shall be limited to all or part of the same Property

	877	  	 that secured the original Lien (together with any improvements and accessions to such

	878	  	 Property) and the aggregate principal amount of Debt that is secured by such Lien shall

	879	  	 not be increased to an amount greater than the sum of:

		
	880	  	 (1) the outstanding principal amount, or, if greater, the committed

	881	  	 amount, of the Debt secured by Liens described under clause (c), (g) or (m)

	882	  	 above, as the case may be, at the time the original Lien became a Permitted Lien

	883	  	 under the Indenture; and

		
	884	  	 (2) an amount necessary to pay any fees and expenses, including

	885	  	 premiums and defeasance costs, incurred by the Company in connection with

	886	  	 such Refinancing;

		
	887	  	 (o) other Liens to secure Debt, so long as the aggregate principal amount of

	888	  	 Debt secured thereby at the time such Lien is created does not exceed 5% of the

	889	  	 Consolidated Net Tangible Assets of the Company, shown on the Company’s

	890	  	 consolidated balance sheet in accordance with GAAP on the last day of the most recent

	891	  	 fiscal quarter ending at least 40 days prior to the date any such Lien shall be Incurred.

		
	892	  	 “Permitted Refinancing Debt” means any Debt that Refinances any other Debt, including

	893	  	any successive Refinancings, so long as:
		
	894	  	 (a) such Debt is in an aggregate principal amount (or if Incurred with original

	895	  	 issue discount, an aggregate issue price) not in excess of the sum of:


  

 -22- 









			
	896	  	 (1) the aggregate principal amount (or if Incurred with original issue

	897	  	 discount, the aggregate accreted value) then outstanding of the Debt being

	898	  	 Refinanced, and

		
	899	  	 (2) an amount necessary to pay any fees and expenses, including

	900	  	 premiums and defeasance costs, related to such Refinancing;

		
	901	  	 (b) the Average Life of such Debt is equal to or greater than the Average Life

	902	  	 of the Debt being Refinanced;

		
	903	  	 (c) the Stated Maturity of such Debt is no earlier than the Stated Maturity of

	904	  	 the Debt being Refinanced; and

		
	905	  	 (d) the new Debt shall not be senior in right of payment to the Debt being

	906	  	 Refinanced;

		
	907	  	provided, however, that Permitted Refinancing Debt shall not include:
		
	908	  	 (x) Debt of a Subsidiary that Refinances Debt of the Company; or

		
	909	  	 (y) Debt of the Company or a Restricted Subsidiary that Refinances Debt of

	910	  	 an Unrestricted Subsidiary.

		
	911	  	 “Person” means any individual, corporation, company (including any limited liability

	912	  	company), association, partnership, joint venture, trust, unincorporated organization, government
	913	  	or any agency or political subdivision thereof or any other entity.
		
	914	  	 “Physical Notes” means certificated Notes in registered form in substantially the form set

	915	  	forth in Exhibit A.
		
	916	  	 “Preferred Stock” means any Capital Stock of a Person, however designated, which

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

	921	  	Restricted Subsidiaries held by Persons other than the Company or a Restricted Subsidiary. The
	922	  	amount of any such dividend shall be equal to the quotient of such dividend divided by the
	923	  	difference between one and the maximum statutory federal income rate (expressed as a decimal
	924	  	number between 1 and 0) then applicable to the issuer of such Preferred Stock.
		
	925	  	 “Prepayment Offer” has the meaning set forth in Section 4.12(c).


  

 -23- 









			
	926	  	 “Private Placement Legend” means the legend initially set forth on the Rule 144A Notes

	927	  	and other Notes that are Restricted Notes in the form set forth in Exhibit B.
		
	928	  	 “pro forma” means, with respect to any calculation made or required to be made pursuant

	929	  	to the terms hereof, a calculation performed in accordance with Article 11 of Regulation S-X
	930	  	promulgated under the Securities Act.
		
	931	  	 “Property” means, with respect to any Person, any interest of such Person in any kind of

	932	  	property or asset, whether real, personal or mixed, or tangible or intangible, including Capital
	933	  	Stock in, and other securities of, any other Person. For purposes of any calculation required
	934	  	pursuant to this Indenture, the value of any Property shall be its Fair Market Value.
		
	935	  	 “Purchase Date” has the meaning set forth in Section 4.12(d).

		
	936	  	 “Purchase Money Debt” means Debt:

		
	937	  	 (a) consisting of the deferred purchase price of Property, conditional sale

	938	  	 obligations, obligations under any title retention agreement, other purchase money

	939	  	 obligations and obligations in respect of industrial revenue bonds, in each case where the

	940	  	 maturity of such Debt does not exceed the anticipated useful life of the Property being

	941	  	 financed; and

		
	942	  	 (b) Incurred to finance the acquisition, construction or lease by the Company

	943	  	 or a Restricted Subsidiary of such Property, including additions and improvements

	944	  	 thereto;

		
	945	  	provided, however, that such Debt is Incurred within 180 days after the acquisition, construction
	946	  	or lease of such Property by the Company or such Restricted Subsidiary.
		
	947	  	 “Qualified Equity Offering” means any public or private offering for cash of Capital

	948	  	Stock (other than Disqualified Stock) of the Company other than (i) public offerings of Capital
	949	  	Stock registered on Form S-8 or (ii) other issuances upon the exercise of options of employees of
	950	  	the Company or any of its Subsidiaries.
		
	951	  	 “Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A

	952	  	promulgated under the Securities Act.
		
	953	  	 “rates of exchange” has the meaning set forth in Section 10.13(d).

		
	954	  	 “Rating Agencies” means Moody’s and S&P (or, if either such entity ceases to rate the

	955	  	Notes for reasons outside of the control of the Company, the equivalent investment grade rating
	956	  	from any other “nationally recognized statistical rating organization” within the meaning of Rule
	957	  	15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement agency).

  

 -24- 









			
	 958
	  	 “Redemption Date” when used with respect to any Note to be redeemed pursuant to

	959	  	paragraph 5 of the Notes means the date fixed for such redemption pursuant to the terms of the
	960	  	Notes.
		
	961	  	 “Refinance” means, in respect of any Debt, to refinance, extend, renew, refund or Repay,

	962	  	or to issue other Debt, in exchange or replacement for, such Debt. “Refinanced” and
	963	  	“Refinancing” shall have correlative meanings.
		
	964	  	 “Registrar” has the meaning set forth in Section 2.04.

		
	965	  	 “Registration Rights Agreement” means the Registration Rights Agreement among the

	966	  	Company and the Initial Purchasers entered into in connection with the issuance of the Notes.
		
	967	  	 “Regulation S” means Regulation S promulgated under the Securities Act.

		
	968	  	 “Regulation S Global Note” has the meaning set forth in Section 2.16(a).

		
	969	  	 “Regulation S Notes” has the meaning set forth in Section 2.02.

		
	970	  	 “Related Business” means any business that is related, ancillary or complementary to the

	971	  	businesses of the Company and the Restricted Subsidiaries on the Issue Date and any reasonable
	972	  	extension thereof.
		
	973	  	 “Repay” means, in respect of any Debt, to repay, prepay, repurchase, redeem, legally

	974	  	defease or otherwise retire such Debt. “Repayment” and “Repaid” shall have correlative
	975	  	meanings. For purposes of Section 4.12 and the definition of “Consolidated Fixed Charge
	976	  	Coverage Ratio,” Debt shall be considered to have been Repaid only to the extent the related
	977	  	loan commitment, if any, shall have been permanently reduced in connection therewith.
		
	978	  	 “Required Filing Dates” has the meaning set forth in Section 4.16.

		
	979	  	 “Responsible Officer” shall mean, when used with respect to the Trustee, any officer in

	980	  	the Corporate Trust Office of the Trustee having direct responsibility for the administration of
	981	  	this Indenture or any other officer, to whom any corporate trust matter is referred because of
	982	  	such officer’s knowledge of and familiarity with the particular subject.
		
	983	  	 “Restricted Global Notes” has the meaning set forth in Section 2.16(a).

		
	984	  	 “Restricted Note” has the same meaning as “Restricted Security” set forth in Rule

	985	  	144(a)(3) promulgated under the Securities Act; provided that the Trustee shall be entitled to
	986	  	request and conclusively rely upon an Opinion of Counsel with respect to whether any Note is a
	987	  	Restricted Note.

  

 -25- 









			
	988	  	 “Restricted Payment” means:

		
	989	  	 (a) any dividend or distribution (whether made in cash, securities or other

	990	  	 Property) declared or paid on or with respect to any shares of the Capital Stock of the

	991	  	 Company or any Restricted Subsidiary, except for any dividend or distribution that is

	992	  	 made solely to the Company or a Restricted Subsidiary (and, if such Restricted

	993	  	 Subsidiary is not a Wholly Owned Restricted Subsidiary, to the other shareholders of

	994	  	 such Restricted Subsidiary on a pro rata basis or on a basis that results in the receipt by

	995	  	 the Company or a Restricted Subsidiary of dividends or distributions of greater value

	996	  	 than it would receive on a pro rata basis) or any dividend or distribution payable solely in

	997	  	 shares of Capital Stock (other than Disqualified Stock) of the Company;

		
	998	  	 (b) the purchase, repurchase, redemption, acquisition or retirement for value

	999	  	 of any Capital Stock of the Company or any Restricted Subsidiary (other than from the

	1000	  	 Company or a Restricted Subsidiary and other than for Capital Stock of the Company that

	1001	  	 is not Disqualified Stock);

		
	1002	  	 (c) the purchase, repurchase, redemption, acquisition or retirement for value,

	1003	  	 prior to the date for any scheduled maturity, sinking fund or amortization or other

	1004	  	 installment payment, of any Subordinated Obligation (other than the purchase, repurchase

	1005	  	 or other acquisition of any Subordinated Obligation purchased in anticipation of

	1006	  	 satisfying a scheduled maturity, sinking fund or amortization or other installment

	1007	  	 obligation, in each case due within one year of the date of acquisition); and

		
	1008	  	 (d) any Investment (other than Permitted Investments) in any Person.

		
	1009	  	 “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted

	1010	  	Subsidiary.
		
	1011	  	 “Rule 144” means Rule 144 promulgated under the Securities Act.

		
	1012	  	 “Rule 144A” means Rule 144A promulgated under the Securities Act.

		
	1013	  	 “Rule 144A Notes” has the meaning set forth in Section 2.02.

		
	1014	  	 “S&P” means Standard & Poor’s Rating Services, a division of the McGraw-Hill

	1015	  	Companies, Inc., or any successor to the rating agency business thereof.
		
	1016	  	 “Sale and Leaseback Transaction” means any direct or indirect arrangement relating to

	1017	  	Property now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
	1018	  	transfers such Property to another Person and the Company or a Restricted Subsidiary leases it
	1019	  	from such Person.
		
	1020	  	 “Securities Act” means the U.S. Securities Act of 1933, as amended.


  

 -26- 









			
	1021	  	 “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary”

	1022	  	of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
	1023	  	Commission.
		
	1024	  	 “Spansion” means Spansion LLC, a Delaware limited liability company, and its

	1025	  	Successors.
		
	1026	  	 “Stated Maturity” means with respect to any Debt or security, the date specified in such

	1027	  	security as the fixed date on which the payment of principal of such security is due and payable,
	1028	  	including pursuant to any mandatory redemption provision (but excluding any provision
	1029	  	providing for the repurchase of such security at the option of the holder thereof upon the
	1030	  	happening of any contingency beyond the control of the issuer, unless such contingency has
	1031	  	occurred).
		
	1032	  	 “Subordinated Obligation” means any Debt of the Company (whether outstanding on the

	1033	  	Issue Date or thereafter Incurred) that is subordinate or junior in right of payment to the Notes or
	1034	  	such entity’s Guarantee pursuant to a written agreement to that effect.
		
	1035	  	 “Subsidiary” means, in respect of any Person, any corporation, company (including any

	1036	  	limited liability company), association, partnership, joint venture or other business entity of
	1037	  	which at least a majority of the total voting power of the Voting Stock is at the time owned or
	1038	  	controlled, directly or indirectly, by:
		
	1039	  	 (a) such Person;

		
	1040	  	 (b) such Person and one or more Subsidiaries of such Person; or

		
	1041	  	 (c) one or more Subsidiaries of such Person.

		
	1042	  	 “Surviving Person” has the meaning set forth in Section 5.01(a)(1).

		
	1043	  	 “Suspended Covenants” has the meaning set forth in Section 4.17(a)

		
	1044	  	 “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in

	1045	  	effect on the date of this Indenture (except as provided in Section 8.03); provided, however, that
	1046	  	in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the
	1047	  	extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
		
	1048	  	 “Total Assets” means, with respect to any date of determination, the Company’s total

	1049	  	consolidated assets shown on its consolidated balance sheet in accordance with GAAP on the last
	1050	  	day of the fiscal quarter prior to the date of determination.
		
	1051	  	 “Treasury Rate” means, as of any redemption date, the yield to maturity as of such

	1052	  	redemption date of United States Treasury securities with a constant maturity (as compiled and

  

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	 1053
	  	published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
	1054	  	publicly available at least two Business Days prior to the redemption date (or, if such statistical
	1055	  	release is no longer published, any publicly available source of similar market data)) most nearly
	1056	  	equal to the period from the redemption date to November 1, 2008; provided, however, that if the
	1057	  	period from the redemption date to November 1, 2008 is not equal to the constant maturity of the
	1058	  	United States Treasury security for which a weekly average yield is given, the Treasury Rate
	1059	  	shall be obtained by linear interpolation (calculated to one-twelfth of a year) from the weekly
	1060	  	average yields of United States Treasury securities for which such yields are given, except that if
	1061	  	the period from the redemption date to November 1, 2008 is less than one year, the weekly
	1062	  	average yield on actually traded United States Treasury securities adjusted to a constant maturity
	1063	  	of one year shall be used.
		
	1064	  	 “Trustee” means the party named as such in this Indenture until a successor replaces it

	1065	  	pursuant to this Indenture and thereafter means the successor.
		
	1066	  	 “Unrestricted Subsidiary” means:

		
	1067	  	 (a) (x) on the Issue Date, Spansion and its Subsidiaries and (y) any Subsidiary of the

	1068	  	Company that is designated after the Issue Date as an Unrestricted Subsidiary as permitted or
	1069	  	required pursuant to Section 4.15; and in any case so long as the respective Unrestricted
	1070	  	Subsidiary is not thereafter redesignated as a Restricted Subsidiary as permitted pursuant to
	1071	  	Section 4.15; and
		
	1072	  	 (b) any Subsidiary of an Unrestricted Subsidiary.

		
	1073	  	 “U.S. Government Obligations” means direct obligations (or certificates representing an

	1074	  	ownership interest in such obligations) of the United States of America (including any agency or
	1075	  	instrumentality thereof) for the payment of which the full faith and credit of the United States of
	1076	  	America is pledged and which are not callable or redeemable at the issuer’s option.
		
	1077	  	 “Voting Stock” of any Person means all classes of Capital Stock or other interests

	1078	  	(including partnership interests) of such Person then outstanding and normally entitled (without
	1079	  	regard to the occurrence of any contingency) to vote in the election of directors, managers or
	1080	  	trustees thereof.
		
	1081	  	 “Wholly Owned Restricted Subsidiary” means, at any time, a Restricted Subsidiary all

	1082	  	the Voting Stock of which (except directors’ qualifying shares) is at such time owned, directly or
	1083	  	indirectly, by the Company and its other Wholly Owned Restricted Subsidiaries.
		
	1084	  	 SECTION 1.02. Incorporation by Reference of Trust Indenture Act.

		
	1085	  	 Whenever this Indenture refers to a provision of the TIA, the portion of such provision

	1086	  	required to be incorporated herein in order for this Indenture to be qualified under the TIA is

  

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	 1087
	  	incorporated by reference in and made a part of this Indenture. The following TIA terms used in
	1088	  	this Indenture have the following meanings:
		
	1089	  	 “indenture securities” means the Notes;

		
	1090	  	 “indenture securityholder” means a Holder or Noteholder;

		
	1091	  	 “indenture to be qualified” means this Indenture; and

		
	1092	  	 “obligor on this indenture securities” means the Company or any other obligor on

	1093	  	 the Notes.

		
	1094	  	 All other terms used in this Indenture that are defined by the TIA, defined in the TIA by

	1095	  	reference to another statute or defined by Commission rule have the meanings therein assigned to
	1096	  	them.
		
	1097	  	 SECTION 1.03. Rules of Construction.

		
	1098	  	 Unless the context otherwise requires:

		
	1099	  	 (a) a term has the meaning assigned to it herein, whether defined expressly or

	1100	  	 by reference;

		
	1101	  	 (b) “or” is not exclusive;

		
	1102	  	 (c) words in the singular include the plural, and in the plural include the

	1103	  	 singular;

		
	1104	  	 (d) words used herein implying any gender shall apply to both genders;

		
	1105	  	 (e) “herein,” “hereof” and other words of similar import refer to this Indenture

	1106	  	 as a whole and not to any particular Article, Section or other subsection;

		
	1107	  	 (f) unless otherwise specified herein, all accounting terms used herein shall

	1108	  	 be interpreted, all accounting determinations hereunder shall be made, and all financial

	1109	  	 statements required to be delivered hereunder shall be prepared in accordance with

	1110	  	 GAAP;

		
	1111	  	 (g) “$,” “U.S. Dollars” and “United States Dollars” each refer to United States

	1112	  	 dollars, or such other successor money to the United States dollar, and “Euro” and “euro”

	1113	  	 each refer to the European Union euro or such other successor money to the European

	1114	  	 Union euro, in each case that at the time of payment is legal tender for payment of public

	1115	  	 and private debts; and


  

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	 1116
	  	 (h) whenever in this Indenture there is mentioned, in any context, principal,

	1117	  	 interest or any other amount payable under or with respect to any Note, such mention

	1118	  	 shall be deemed to include mention of the payment of Additional Interest to the extent

	1119	  	 that, in such context, Additional Interest, is, was or would be payable in respect thereof.

		
	1120	  	ARTICLE TWO
	1121	  	 
	1122	  	THE SECURITIES
		
	1123	  	 SECTION 2.01. Amount of Notes.

		
	1124	  	 The Trustee shall initially authenticate the Notes for original issue on the Issue Date in an

	1125	  	aggregate principal amount of $600.0 million upon a written order of the Company in the form
	1126	  	of an Officers’ Certificate of the Company (other than as provided in Section 2.08). The Trustee
	1127	  	shall authenticate additional Notes (“Additional Notes”) thereafter in unlimited aggregate
	1128	  	principal amount (so long as permitted by the terms of this Indenture, including, without
	1129	  	limitation, Section 4.09) for original issue upon a written order of the Company in the form of an
	1130	  	Officers’ Certificate in aggregate principal amount as specified in such order (other than as
	1131	  	provided in Section 2.08). Each such written order shall specify the amount of Notes to be
	1132	  	authenticated and the date on which the Notes are to be authenticated.
		
	1133	  	 SECTION 2.02. Form and Dating.

		
	1134	  	 The Notes and the Trustee’s certificate of authentication with respect thereto shall be

	1135	  	substantially in the form set forth in Exhibit A, which is incorporated in and forms a part of this
	1136	  	Indenture. The Notes may have notations, legends or endorsements required by law, rule or
	1137	  	usage to which the Company is subject. Without limiting the generality of the foregoing, Notes
	1138	  	offered and sold to Qualified Institutional Buyers in reliance on Rule 144A (“Rule 144A Notes”)
	1139	  	shall bear the legend and include the form of assignment set forth in Exhibit B, and Notes offered
	1140	  	and sold in offshore transactions in reliance on Regulation S (“Regulation S Notes”) shall bear
	1141	  	the legend and include the form of assignment set forth in Exhibit C. Each Note shall be dated
	1142	  	the date of its authentication.
		
	1143	  	 The terms and provisions contained in the Notes shall constitute, and are expressly made,

	1144	  	a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their
	1145	  	execution and delivery of this Indenture, expressly agree to such terms and provisions and agree
	1146	  	to be bound thereby.
		
	1147	  	 The Notes may be presented for registration of transfer and exchange at the offices of the

	1148	  	Registrar.

  

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	1149	  	 SECTION 2.03. Execution and Authentication.

		
	1150	  	 The Notes shall be executed on behalf of the Company by its Chairman of the Board,

	1151	  	Chief Executive Officer, Chief Financial Officer, President or any Executive Vice President.
	1152	  	The signature of any of these Officers on the Notes may be manual or facsimile.
		
	1153	  	 If an Officer whose signature is on a Note was an Officer at the time of such execution

	1154	  	but no longer holds that office at the time the Trustee authenticates the Note, the Note shall be
	1155	  	valid nevertheless.
		
	1156	  	 No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for

	1157	  	any purpose unless there appears on such Note a certificate of authentication substantially in the
	1158	  	form provided for herein executed by the Trustee by manual signature, and such certificate upon
	1159	  	any Note shall be conclusive evidence, and the only evidence, that such Note has been duly
	1160	  	authenticated and delivered hereunder. Notwithstanding the foregoing, if any Note shall have
	1161	  	been authenticated and delivered hereunder but never issued and sold by the Company, and the
	1162	  	Company shall deliver such Note to the Trustee for cancellation as provided in Section 2.12, for
	1163	  	all purposes of this Indenture such Note shall be deemed never to have been authenticated and
	1164	  	delivered hereunder and shall never be entitled to the benefits of this Indenture.
		
	1165	  	 The Notes shall be issuable only in fully registered form without coupons in

	1166	  	denominations of $1,000 and integral multiples of $1,000.
		
	1167	  	 SECTION 2.04. Registrar and Paying Agent.

		
	1168	  	 The Company shall maintain an office or agency where Notes may be presented for

	1169	  	registration of transfer or for exchange (the “Registrar”), and an office or agency where Notes
	1170	  	may be presented for payment (the “Paying Agent”) and an office or agency where notices and
	1171	  	demands to or upon the Company, if any, in respect of the Notes and this Indenture may be
	1172	  	served. The Registrar shall keep a register of the Notes and of their transfer and exchange. The
	1173	  	Company may have one or more additional Paying Agents. The term “Paying Agent” includes
	1174	  	any additional Paying Agent.
		
	1175	  	 The Company shall enter into an appropriate agency agreement, which shall incorporate

	1176	  	the provisions of the TIA, with any Agent that is not a party to this Indenture. The agreement
	1177	  	shall implement the provisions of this Indenture that relate to such Agent. The Company shall
	1178	  	notify the Trustee of the name and address of any such Agent. If the Company fails to maintain
	1179	  	a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such
	1180	  	and shall be entitled to appropriate compensation in accordance with Section 7.07.
		
	1181	  	 The Company initially appoints the Trustee as Registrar, Paying Agent and Agent for

	1182	  	service of notices and demands in connection with the Notes and this Indenture and the

  

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	 1183
	  	Company may change the Paying Agent without prior notice to the Holders. The Company may
	1184	  	act as Paying Agent.
		
	1185	  	 SECTION 2.05. Paying Agent To Hold Money in Trust.

		
	1186	  	 Each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all

	1187	  	money held by the Paying Agent for the payment of principal of or premium or interest on the
	1188	  	Notes (whether such money has been paid to it by the Company or any other obligor on the
	1189	  	Notes), and the Company and the Paying Agent shall notify the Trustee of any default by the
	1190	  	Company (or any other obligor on the Notes) in making any such payment. Money held in trust
	1191	  	by the Paying Agent need not be segregated except as required by law and in no event shall the
	1192	  	Paying Agent be liable for any interest on any money received by it hereunder; provided that if
	1193	  	the Company or an Affiliate thereof acts as Paying Agent, it shall segregate the money held by it
	1194	  	as Paying Agent and hold it as a separate trust fund. The Company at any time may require the
	1195	  	Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed and
	1196	  	the Trustee may at any time during the continuance of any Event of Default specified in Section
	1197	  	6.01(1) or (2), upon written request to the Paying Agent, require such Paying Agent to pay
	1198	  	forthwith all money so held by it to the Trustee and to account for any funds disbursed. Upon
	1199	  	making such payment, the Paying Agent shall have no further liability for the money delivered to
	1200	  	the Trustee.
		
	1201	  	 SECTION 2.06. Holder Lists.

		
	1202	  	 The Trustee shall preserve in as current a form as is reasonably practicable the most

	1203	  	recent list available to it of the names and addresses of the Holders. If the Trustee is not the
	1204	  	Registrar, the Company shall furnish to the Trustee at least five Business Days before each
	1205	  	Interest Payment Date, and at such other times as the Trustee may request in writing, a list in
	1206	  	such form and as of such date as the Trustee may reasonably require of the names and addresses
	1207	  	of the Holders, provided that, as long as the Trustee is the Registrar, no such list need be
	1208	  	furnished.
		
	1209	  	 SECTION 2.07. Transfer and Exchange.

		
	1210	  	 Subject to Sections 2.16 and 2.17, when Notes are presented to the Registrar with a

	1211	  	request from the Holder of such Notes to register a transfer or to exchange them for an equal
	1212	  	principal amount of Notes of other authorized denominations, the Registrar shall register the
	1213	  	transfer as requested. Every Note presented or surrendered for registration of transfer or
	1214	  	exchange shall be duly endorsed or be accompanied by a written instrument of transfer in form
	1215	  	satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his
	1216	  	attorneys duly authorized in writing. To permit registrations of transfers and exchanges, the
	1217	  	Company shall issue and execute and the Trustee shall authenticate new Notes evidencing such
	1218	  	transfer or exchange at the Registrar’s request. No service charge shall be made to the Holder
	1219	  	for any registration of transfer or exchange. The Company or the Trustee may require from the

  

 -32- 









			
	1220	  	Holder payment of a sum sufficient to cover any transfer taxes or other governmental charge that
	1221	  	may be imposed in relation to a transfer or exchange, but this provision shall not apply to any
	1222	  	exchange pursuant to Section 2.11, 3.06, 4.08, 4.12 or 8.05 (in which events the Company shall
	1223	  	be responsible for the payment of such taxes). The Registrar shall not be required to exchange or
	1224	  	register a transfer of any Note for a period of 15 days immediately preceding the redemption of
	1225	  	Notes, except the unredeemed portion of any Note being redeemed in part.
		
	1226	  	 Any Holder of the Global Note shall, by acceptance of such Global Note, agree that

	1227	  	transfers of the beneficial interests in such Global Note may be effected only through a book -
	1228	  	entry system maintained by the Holder of such Global Note (or its agent), and that ownership of
	1229	  	a beneficial interest in the Global Note shall be required to be reflected in a book entry.
		
	1230	  	 Neither the Trustee nor the Registrar shall have any duty to monitor the Company’s

	1231	  	compliance with or have any responsibility with respect to the Company’s compliance with any
	1232	  	Federal or state securities laws.
		
	1233	  	 SECTION 2.08. Replacement Notes.

		
	1234	  	 If a mutilated Note is surrendered to the Registrar or the Trustee, or if the Holder of a

	1235	  	Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue
	1236	  	and the Trustee shall authenticate a replacement Note if the Holder of such Note furnishes to the
	1237	  	Company and the Trustee evidence reasonably acceptable to them of the ownership and the
	1238	  	destruction, loss or theft of such Note and if the requirements of Section 8-405 of the New York
	1239	  	Uniform Commercial Code as in effect on the date of this Indenture are met. If required by the
	1240	  	Trustee or the Company, an indemnity bond shall be posted, sufficient in the judgment of the
	1241	  	Company, the Trustee or any Paying Agent to protect the Company, the Trustee or any Paying
	1242	  	Agent from any loss that any of them may suffer if such Note is replaced. The Company may
	1243	  	charge such Holder for the Company’s reasonable out-of-pocket expenses in replacing such
	1244	  	Note, and the Trustee may charge the Company for the Trustee’s expenses (including, without
	1245	  	limitation, attorneys’ fees and disbursements) in replacing such Note. Every replacement Note
	1246	  	shall constitute a contractual obligation of the Company.
		
	1247	  	 SECTION 2.09. Outstanding Notes.

		
	1248	  	 The Notes outstanding at any time are all Notes that have been authenticated by the

	1249	  	Trustee except for (a) those canceled by it, (b) those delivered to it for cancellation, (c) to the
	1250	  	extent set forth in Sections 9.01 and 9.02, on or after the date on which the conditions set forth in
	1251	  	Section 9.01 or 9.02 have been satisfied, those Notes theretofore authenticated and delivered by
	1252	  	the Trustee hereunder and (d) those described in this Section 2.09 as not outstanding. Subject to
	1253	  	Section 2.10, a Note does not cease to be outstanding because the Company or one of its
	1254	  	Affiliates holds the Note.

  

 -33- 









			
	1255	  	 If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding unless the

	1256	  	Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser in
	1257	  	whose hands such Note is a legal, valid and binding obligation of the Company.
		
	1258	  	 If the Paying Agent holds, in its capacity as such, on any Maturity Date, money sufficient

	1259	  	to pay all accrued and unpaid interest and principal with respect to the Notes payable on that date
	1260	  	and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this
	1261	  	Indenture, then on and after that date such Notes cease to be outstanding and interest on them
	1262	  	ceases to accrue.
		
	1263	  	 SECTION 2.10. Treasury Notes.

		
	1264	  	 In determining whether the Holders of the required principal amount of Notes have

	1265	  	concurred in any declaration of acceleration or Notice of Default or direction, waiver or consent
	1266	  	or any amendment, modification or other change to this Indenture, Notes owned by the Company
	1267	  	or any other Affiliate of the Company shall be disregarded as though they were not outstanding,
	1268	  	except that for the purposes of determining whether the Trustee shall be protected in relying on
	1269	  	any such direction, waiver or consent or any amendment, modification or other change to this
	1270	  	Indenture, only Notes as to which a Responsible Officer of the Trustee has actually received an
	1271	  	Officers’ Certificate stating that such Notes are so owned shall be so disregarded. Notes so
	1272	  	owned which have been pledged in good faith shall not be disregarded if the pledgee established
	1273	  	to the satisfaction of the Trustee the pledgee’s right so to act with respect to the Notes and that
	1274	  	the pledgee is not the Company, any other obligor on the Notes or any of their respective
	1275	  	Affiliates.
		
	1276	  	 SECTION 2.11. Temporary Notes.

		
	1277	  	 Until definitive Notes are prepared and ready for delivery, the Company may prepare and

	1278	  	the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the
	1279	  	form of definitive Notes but may have variations that the Company considers appropriate for
	1280	  	temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall
	1281	  	authenticate definitive Notes in exchange for temporary Notes. Until such exchange, temporary
	1282	  	Notes shall be entitled to the same rights, benefits and privileges as definitive Notes.
		
	1283	  	 SECTION 2.12. Cancellation.

		
	1284	  	 The Company at any time may deliver Notes to the Trustee for cancellation. The

	1285	  	Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for
	1286	  	registration of transfer, exchange or payment. The Trustee shall cancel all Notes surrendered for
	1287	  	registration of transfer, exchange, payment, replacement or cancellation and shall, upon the
	1288	  	Company’s written request, deliver such canceled Notes to the Company. The Company may
	1289	  	not reissue or resell, or issue new Notes to replace, Notes that the Company has redeemed or
	1290	  	paid, or that have been delivered to the Trustee for cancellation.

  

 -34- 









			
		
	1291	  	 SECTION 2.13. Defaulted Interest.

		
	1292	  	 If the Company defaults on a payment of interest on the Notes, it shall pay the defaulted

	1293	  	interest, plus (to the extent permitted by law) any interest payable on the defaulted interest, in
	1294	  	accordance with the terms hereof, to the Persons who are Holders on a subsequent special record
	1295	  	date, which date shall be at least five Business Days prior to the payment date. The Company
	1296	  	shall fix such special record date and payment date in a manner satisfactory to the Trustee. At
	1297	  	least 10 days before such special record date, the Company shall mail to each Holder a notice
	1298	  	that states the special record date, the payment date and the amount of defaulted interest, and
	1299	  	interest payable on defaulted interest, if any, to be paid. The Company may make payment of
	1300	  	any defaulted interest in any other lawful manner not inconsistent with the requirements (if
	1301	  	applicable) of any securities exchange on which the Notes may be listed and, upon such notice as
	1302	  	may be required by such exchange, if, after written notice given by the Company to the Trustee
	1303	  	of the proposed payment pursuant to this sentence, such manner of payment shall be deemed
	1304	  	practicable by the Trustee.
		
	1305	  	 SECTION 2.14. CUSIP Number.

		
	1306	  	 The Company in issuing the Notes may use a “CUSIP” number, and if so, such CUSIP

	1307	  	number shall be included in notices of redemption or exchange as a convenience to Holders;
	1308	  	provided that any such notice may state that no representation is made as to the correctness or
	1309	  	accuracy of the CUSIP number printed in the notice or on the Notes, and that reliance may be
	1310	  	placed only on the other identification numbers printed on the Notes. The Company shall
	1311	  	promptly notify the Trustee in writing of any such CUSIP number used by the Company in
	1312	  	connection with the issuance of the Notes and of any change in the CUSIP number.
		
	1313	  	 SECTION 2.15. Deposit of Moneys.

		
	1314	  	 Prior to 10:00 a.m., New York City time, on each Interest Payment Date and Maturity

	1315	  	Date, the Company shall have deposited with the Paying Agent in immediately available funds
	1316	  	money sufficient to make cash payments, if any, due on such Interest Payment Date or Maturity
	1317	  	Date, as the case may be, in a timely manner which permits the Trustee to remit payment to the
	1318	  	Holders on such Interest Payment Date or Maturity Date, as the case may be. The principal and
	1319	  	interest on Global Notes shall be payable to the Depository or its nominee, as the case may be, as
	1320	  	the sole registered owner and the sole Holder of the Global Notes represented thereby. The
	1321	  	principal and interest on Physical Notes shall be payable, either in person or by mail, at the office
	1322	  	of the Paying Agent.
		
	1323	  	 SECTION 2.16. Book-Entry Provisions for Global Notes.

		
	1324	  	 (a) Rule 144A Notes shall be represented by one or more Notes in registered, global

	1325	  	form without interest coupons (collectively, the “Restricted Global Notes”). Regulation S Notes
	1326	  	initially shall be represented by one or more Notes in registered, global form without interest

  

 -35- 









			
	1327	  	coupons (collectively, the “Regulation S Global Note,” and, together with the Restricted Global
	1328	  	Note and any other global notes representing Notes, the “Global Notes”). The Global Notes
	1329	  	shall bear legends as set forth in Exhibit D. The Global Notes initially shall (i) be registered in
	1330	  	the name of the Depository or the nominee of such Depository, in each case for credit to an
	1331	  	account of DTC or an Agent Member (or, in the case of the Regulation S Global Notes, of
	1332	  	Euroclear System (“Euroclear”) and Clearstream Banking Luxembourg (“Clearstream”)), (ii) be
	1333	  	delivered to the Trustee as Custodian for such Depository and (iii) bear legends as set forth in
	1334	  	Exhibit B with respect to Restricted Global Notes and Exhibit C with respect to Regulation S
	1335	  	Global Notes.
		
	1336	  	 Members of, or direct or indirect participants in, the Depository (“Agent Members”) shall

	1337	  	have no rights under this Indenture with respect to any Global Note held on their behalf by the
	1338	  	Depository, or the Trustee as its Custodian, or under the Global Notes, and the Depository may
	1339	  	be treated by the Company, the Trustee and any agent of the Company or the Trustee as the
	1340	  	absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing,
	1341	  	nothing herein shall prevent the Company, the Trustee or any agent of the Company or the
	1342	  	Trustee from giving effect to any written certification, proxy or other authorization (which may
	1343	  	be in electronic form) furnished by the Depository or impair, as between the Depository and its
	1344	  	Agent Members, the operation of customary practices governing the exercise of the rights of a
	1345	  	Holder of any Note.
		
	1346	  	 (b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to

	1347	  	the Depository, its successors or their respective nominees. Interests of beneficial owners in the
	1348	  	Global Notes may be transferred or exchanged for Physical Notes in accordance with the rules
	1349	  	and procedures of the Depository and the provisions of Section 2.17. In addition, a Global Note
	1350	  	shall be exchangeable for Physical Notes if (i) the Depository (x) notifies the Company that it is
	1351	  	unwilling or unable to continue as depository for such Global Note or (y) has ceased to be a
	1352	  	clearing agency registered under the Exchange Act and with respect to (x) or (y) the Company
	1353	  	thereupon fails to appoint a successor depository within 90 days of such notice or cessation, (ii)
	1354	  	the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of
	1355	  	such Physical Notes in exchange for any or all of the Notes represented by the Global Notes or
	1356	  	(iii) there shall have occurred and be continuing an Event of Default with respect to the Notes.
	1357	  	In all cases, Physical Notes delivered in exchange for any Global Note or beneficial interests
	1358	  	therein shall be registered in the names, and issued in any approved denominations, requested by
	1359	  	or on behalf of the Depository (in accordance with its customary procedures).
		
	1360	  	 (c) In connection with any transfer or exchange of a portion of the beneficial interest

	1361	  	in any Global Note to beneficial owners pursuant to paragraph (b), the Registrar shall (if one or
	1362	  	more Physical Notes are to be issued) reflect on its books and records the date and a decrease in
	1363	  	the principal amount of the Global Note in an amount equal to the principal amount of the
	1364	  	beneficial interest in the Global Note to be transferred, and the Company shall execute, and the

  

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	1365	  	Trustee shall upon receipt of a written order from the Company authenticate and make available
	1366	  	for delivery, one or more Physical Notes of like tenor and amount.
		
	1367	  	 (d) In connection with the transfer of Global Notes as an entirety to beneficial owners

	1368	  	pursuant to paragraph (b), the Global Notes shall be deemed to be surrendered to the Trustee for
	1369	  	cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to
	1370	  	each beneficial owner identified by the Depository in writing in exchange for its beneficial
	1371	  	interest in the Global Notes, an equal aggregate principal amount of Physical Notes of authorized
	1372	  	denominations.
		
	1373	  	 (e) Any Physical Note constituting a Restricted Note delivered in exchange for an

	1374	  	interest in a Global Note pursuant to paragraph (b), (c) or (d) shall, except as otherwise provided
	1375	  	by paragraphs (a) and (c) of Section 2.17, bear the Private Placement Legend or, in the case of
	1376	  	the Regulation S Global Note, the legend set forth in Exhibit C, in each case, unless the
	1377	  	Company determine otherwise in compliance with applicable law.
		
	1378	  	 (f) Any beneficial interest in one of the Global Notes that is transferred to a Person

	1379	  	who takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to
	1380	  	be an interest in such Global Note and become an interest in such other Global Note and,
	1381	  	accordingly, shall thereafter be subject to all transfer restrictions and other procedures applicable
	1382	  	to beneficial interests in such other Global Note for as long as it remains such an interest.
		
	1383	  	 (g) The Holder of any Global Note may grant proxies and otherwise authorize any

	1384	  	Person, including Agent Members and Persons that may hold interests through Agent Members,
	1385	  	to take any action which a Holder is entitled to take under this Indenture or the Notes.
		
	1386	  	 SECTION 2.17. Special Transfer Provisions.

		
	1387	  	 (a) Transfers to QIBs. The following provisions shall apply with respect to the

	1388	  	registration or any proposed registration of transfer of a Note constituting a Restricted Note to a
	1389	  	QIB (excluding transfers to Non-U.S. Persons):
		
	1390	  	 (1) the Registrar shall register the transfer if such transfer is being made by a

	1391	  	 proposed transferor who has checked the box provided on such Holder’s Note stating, or

	1392	  	 to a transferee who has advised the Company and the Registrar in writing, that it is

	1393	  	 purchasing the Note for its own account or an account with respect to which it exercises

	1394	  	 sole investment discretion and that it and any such account is a QIB within the meaning

	1395	  	 of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and

	1396	  	 acknowledges that it has received such information regarding the Company as it has

	1397	  	 requested pursuant to Rule 144A or has determined not to request such information and

	1398	  	 that it is aware that the transferor is relying upon its foregoing representations in order to

	1399	  	 claim the exemption from registration provided by Rule 144A; and


  

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	1400	  	 (2) if the proposed transferee is an Agent Member, and the Notes to be

	1401	  	 transferred consist of Physical Notes which after transfer are to be evidenced by an

	1402	  	 interest in the Global Note, upon receipt by the Registrar of instructions given in

	1403	  	 accordance with the Depository’s and the Registrar’s procedures, the Registrar shall

	1404	  	 reflect on its books and records the date and an increase in the principal amount of the

	1405	  	 Global Note in an amount equal to the principal amount of the Physical Notes to be

	1406	  	 transferred, and the Trustee shall cancel the Physical Notes so transferred.

		
	1407	  	 (b) Transfers to Non-QIB, Institutional Accredited Investors and Non-U.S. Persons.

	1408	  	The following provisions shall apply with respect to the registration of any proposed transfer of a
	1409	  	Note constituting a Restricted Note to any Institutional Accredited Investor which is not a QIB or
	1410	  	to any Non-U.S. Person:
		
	1411	  	 (1) the Registrar shall register the transfer of any Note constituting a

	1412	  	 Restricted Note whether or not such Note bears the Private Placement Legend, if (x) the

	1413	  	 requested transfer is after the second anniversary of the Issue Date (provided, however,

	1414	  	 that neither the Company nor any Affiliate of the Company has held any beneficial

	1415	  	 interest in such Note, or portion thereof, at any time on or prior to the second anniversary

	1416	  	 of the Issue Date) or (y)(1) in the case of a transfer to an Institutional Accredited Investor

	1417	  	 which is not a QIB (excluding Non-U.S. Persons), the proposed transferee has delivered

	1418	  	 to the Registrar a certificate substantially in the form of Exhibit F hereto and any legal

	1419	  	 opinions and certifications required thereby or (2) in the case of a transfer to a Non-U.S.

	1420	  	 Person, the proposed transferor has delivered to the Registrar a certificate substantially in

	1421	  	 the form of Exhibit E hereto;

		
	1422	  	 (2) if the proposed transferor is an Agent Member holding a beneficial interest

	1423	  	 in the Global Note, upon receipt by the Registrar of (x) the certificate, if any, required by

	1424	  	 Section 2.17(b)(1) and (y) written instructions given in accordance with the Depository’s

	1425	  	 and the Registrar’s procedures; whereupon (a) the Registrar shall reflect on its books and

	1426	  	 records the date and (if the transfer does not involve a transfer of outstanding Physical

	1427	  	 Notes) a decrease in the principal amount of such Global Note in an amount equal to the

	1428	  	 principal amount of the beneficial interest in the Global Note to be transferred and (b) the

	1429	  	 Company shall execute and the Trustee shall authenticate and deliver, one or more

	1430	  	 Physical Notes of like tenor and amount; and

		
	1431	  	 (3) in the case of a transfer to a Non-U.S. Person, if the proposed transferee is

	1432	  	 an Agent Member, and the Notes to be transferred consist of Physical Notes which after

	1433	  	 transfer are to be evidenced by an interest in a Regulation S Global Note, upon receipt by

	1434	  	 the Registrar of written instructions given in accordance with the Depository’s and the

	1435	  	 Registrar’s procedures, the Registrar shall reflect on its books and records the date and an

	1436	  	 increase in the principal amount of such Regulation S Global Note in an amount equal to

	1437	  	 the principal amount of Physical Notes to be transferred, and the Trustee shall cancel the

	1438	  	 Physical Notes so transferred.


  

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	1439	  	 (c) Private Placement Legend. Upon the registration of transfer, exchange or

	1440	  	replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes
	1441	  	that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or
	1442	  	replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only
	1443	  	Notes that bear the Private Placement Legend unless (i) there is delivered to the Registrar an
	1444	  	Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that
	1445	  	neither such legend nor the related restrictions on transfer are required in order to maintain
	1446	  	compliance with the provisions of the Securities Act or (ii) such Note has been sold pursuant to
	1447	  	an effective registration statement under the Securities Act and the Registrar has received an
	1448	  	Officers’ Certificate from the Company to such effect or (iii) the requested transfer is after the
	1449	  	second anniversary of the Issue Date (provided, however, that neither the Company nor an
	1450	  	Affiliate of the Company has held any beneficial interest in such Note or portion thereof at any
	1451	  	time since the Issue Date).
		
	1452	  	 (d) General. By its acceptance of any Note bearing the Private Placement Legend,

	1453	  	each Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this
	1454	  	Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as
	1455	  	provided in this Indenture.
		
	1456	  	 (e) Certain Transfers in Connection with and After the Exchange Offer Under the

	1457	  	Registration Rights Agreement. Notwithstanding any other provision of this Indenture:
		
	1458	  	 (1) no Exchange Notes may be exchanged by the Holder thereof for a Note

	1459	  	 issued on the Issue Date;

		
	1460	  	 (2) accrued and unpaid interest on the Notes issued on the Issue Date being

	1461	  	 exchanged in the Exchange Offer shall be due and payable on the next Interest Payment

	1462	  	 Date for the Exchange Notes following the Exchange Offer and shall be paid to the

	1463	  	 Holder on the relevant record date of the Exchange Notes issued in respect of the Note

	1464	  	 issued on the Issue Date being exchanged; and

		
	1465	  	 (3) interest on the Note issued on the Issue Date being exchanged in the

	1466	  	 Exchange Offer shall cease to accrue on the date of completion of the Exchange Offer

	1467	  	 and interest on the Exchange Notes to be issued in the Exchange Offer shall accrue from

	1468	  	 the date of completion of the Exchange Offer.

		
	1469	  	 The Registrar shall retain for a period of two years copies of all letters, notices and other

	1470	  	written communications received pursuant to Section 2.16 or this Section 2.17. The Company
	1471	  	shall have the right to inspect and make copies of all such letters, notices or other written
	1472	  	communications at any reasonable time during normal business hours and upon the giving of
	1473	  	reasonable notice to the Registrar.

  

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	1474	  	 SECTION 2.18. Computation of Interest.

		
	1475	  	 Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day

	1476	  	months.
		
	1477	  	 
	1478	  	                         ARTICLE THREE

	1479	  	 
	1480	  	                           REDEMPTION

		
	1481	  	 SECTION 3.01. Election To Redeem; Notices to Trustee.

		
	1482	  	 If the Company elects to redeem Notes pursuant to paragraph 5 of the Notes, at least 45

	1483	  	days prior to the Redemption Date (unless a shorter notice shall be agreed to in writing by the
	1484	  	Trustee) but not more than 60 days before the Redemption Date, the Company shall notify the
	1485	  	Trustee in writing of the Redemption Date, the principal amount of Notes to be redeemed and the
	1486	  	redemption price, and deliver to the Trustee, no later than two Business Days prior to the
	1487	  	Redemption Date, an Officers’ Certificate stating that such redemption will comply with the
	1488	  	conditions contained in paragraph 5 of the Notes. Notice given to the Trustee pursuant to this
	1489	  	Section 3.01 may not be revoked after the time that notice is given to Holders pursuant to Section
	1490	  	3.03.
		
	1491	  	 SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.

		
	1492	  	 The Trustee shall select the Notes to be redeemed on a pro rata basis (with such

	1493	  	adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of
	1494	  	$1,000, or integral multiples thereof, shall be purchased). The Trustee shall promptly notify the
	1495	  	Company of the Notes selected for redemption and, in the case of any Notes selected for partial
	1496	  	redemption, the principal amount thereof to be redeemed. The Trustee may select for
	1497	  	redemption portions of the principal of the Notes that have denominations larger than $ 1,000.
	1498	  	For redemptions pursuant to paragraph 5 of the Notes, Notes and portions thereof that the
	1499	  	Trustee selects shall be redeemed in amounts of $1,000 or whole multiples of $1,000. For all
	1500	  	purposes of this Indenture unless the context otherwise requires, provisions of this Indenture that
	1501	  	apply to Notes called for redemption also apply to portions of Notes called for redemption. In
	1502	  	the event the Company is requested to make a Change of Control Offer or Prepayment Offer and
	1503	  	the amounts available for any such offer is not evenly divisible by $1,000, the Trustee shall
	1504	  	promptly refund to the Company any remaining funds, which in no event shall exceed $1,000.
		
	1505	  	 SECTION 3.03. Notice of Redemption.

		
	1506	  	 At least 30 days, and no more than 60 days, before a Redemption Date, the Company

	1507	  	shall mail, or cause to be mailed, a notice of redemption by first-class mail to each Holder of

  

 -40- 









			
	1508	  	Notes to be redeemed at his or her last address as the same appears on the registry books
	1509	  	maintained by the Registrar pursuant to Section 2.04.
		
	1510	  	 The notice shall identify the Notes to be redeemed (including the CUSIP numbers

	1511	  	thereof) and shall state:
		
	1512	  	 (a) the Redemption Date;

		
	1513	  	 (b) the appropriate calculation of the redemption price;

		
	1514	  	 (c) if fewer than all outstanding Notes are to be redeemed, the portion of the

	1515	  	 principal amount of such Note to be redeemed and that, after the Redemption Date and

	1516	  	 upon surrender of such Note, a new Note or Notes in principal amount equal to the

	1517	  	 unredeemed portion will be issued;

		
	1518	  	 (d) the name and address of the Paying Agent;

		
	1519	  	 (e) that Notes called for redemption must be surrendered to the Paying Agent

	1520	  	 to collect the redemption price;

		
	1521	  	 (f) that unless the Company defaults in making the redemption payment,

	1522	  	 interest on Notes called for redemption ceases to accrue on and after the Redemption

	1523	  	 Date;

		
	1524	  	 (g) which subsection of paragraph 5 of the Notes is the provision of the Notes

	1525	  	 pursuant to which the redemption is occurring; and

		
	1526	  	 (h) the aggregate principal amount of Notes that are being redeemed.

		
	1527	  	 At the Company’s written request made at least five Business Days prior to the date on

	1528	  	which notice is to be given, the Trustee shall give the notice of redemption in the Company’s
	1529	  	name and at the Company’s sole expense.
		
	1530	  	 SECTION 3.04. Effect of Notice of Redemption.

		
	1531	  	 Once the notice of redemption described in Section 3.03 is mailed, Notes called for

	1532	  	redemption become due and payable on the Redemption Date and at the redemption price,
	1533	  	including any premium, plus accrued and unpaid interest, if any, to but excluding the
	1534	  	Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at the
	1535	  	redemption price, including any premium, plus accrued and unpaid interest, if any, to but
	1536	  	excluding the Redemption Date; provided that if the Redemption Date is after a regular record
	1537	  	date and on or prior to the Interest Payment Date, the accrued and unpaid interest, if any, shall be
	1538	  	payable to the Holder of the redeemed Notes registered on the relevant record date; and
	1539	  	provided, further, that if a Redemption Date is a Legal Holiday, payment shall be made on the

  

 -41- 









			
	1540	  	next succeeding Business Day and no interest shall accrue for the period from such Redemption
	1541	  	Date to such succeeding Business Day. Such notice, if mailed in the manner provided in Section
	1542	  	3.03 shall be conclusively presumed to have been given whether or not the Holder receives such
	1543	  	notice.
		
	1544	  	 SECTION 3.05. Deposit of Redemption Price.

		
	1545	  	 On or prior to 10:00 a.m., New York City time, on each Redemption Date, the Company

	1546	  	shall deposit with the Paying Agent in immediately available funds money sufficient to pay the
	1547	  	redemption price of, including premium, if any, and accrued and unpaid interest, if any, on all
	1548	  	Notes to be redeemed on that date other than Notes or portions thereof called for redemption on
	1549	  	that date which have been delivered by the Company to the Trustee for cancellation.
		
	1550	  	 On and after any Redemption Date, if money sufficient to pay the redemption price of,

	1551	  	including premium, if any, and accrued and unpaid interest, if any, on, the Notes called for
	1552	  	redemption shall have been made available in accordance with the immediately preceding
	1553	  	paragraph, the Notes called for redemption will cease to accrue interest and the only right of the
	1554	  	Holders of such Notes will be to receive payment of the redemption price of and, subject to the
	1555	  	first proviso in Section 3.04, accrued and unpaid interest on such Notes to but excluding the
	1556	  	Redemption Date. If any Note surrendered for redemption shall not be so paid, interest will be
	1557	  	paid, from the Redemption Date until such redemption payment is made, on the unpaid principal
	1558	  	of the Note and any interest not paid on such unpaid principal, in each case at the rate and in the
	1559	  	manner provided in the Notes.
		
	1560	  	 SECTION 3.06. Notes Redeemed in Part.

		
	1561	  	 Upon surrender of a Note that is redeemed in part, the Company shall execute and the

	1562	  	Trustee shall authenticate for the Holder thereof a new Note equal in principal amount to the
	1563	  	unredeemed portion of the original Note in the name of the Holder upon cancellation of the orig-
	1564	  	inal Note surrendered except that if a Global Note is so surrendered, the Company shall execute
	1565	  	and the Trustee shall authenticate and deliver to the Depository, a new Global Note in denomina-
	1566	  	tion equal to and in exchange for the unredeemed portion of the principal of the Global Note so
	1567	  	surrendered.
		
	1568	  	 SECTION 3.07. Other Mandatory Redemption.

		
	1569	  	 The Company is not required to make mandatory redemption or sinking fund payments

	1570	  	with respect to the Notes. Under certain circumstances, the Company may be required to offer to
	1571	  	purchase Notes as described under Section 4.08 and Section 4.12. The Company may, at any
	1572	  	time and from time to time, purchase Notes in the open market or otherwise.

  

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	1573	  	                         ARTICLE FOUR

	1574	  	 
	1575	  	                           COVENANTS

		
	1576	  	 SECTION 4.01. Payment of Notes.

		
	1577	  	 The Company shall pay the principal of and interest on the Notes in accordance with the

	1578	  	terms of the Notes and this Indenture. An installment of principal or interest shall be considered
	1579	  	paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for
	1580	  	and sufficient to pay such installment.
		
	1581	  	 The Company shall pay interest on overdue principal (including post-petition interest in a

	1582	  	proceeding under any Bankruptcy Law), and overdue interest, to the extent lawful, at the rate
	1583	  	specified in the Notes.
		
	1584	  	 SECTION 4.02. Maintenance of Office or Agency.

		
	1585	  	 (a) The Company shall maintain an office or agency in the Borough of Manhattan,

	1586	  	the City of New York (which may be an office of the Trustee or an affiliate of the Trustee or
	1587	  	Registrar) where Notes may be presented or surrendered for payment, where Notes may be
	1588	  	surrendered for registration of transfer or for exchange and where notices and demands to or
	1589	  	upon the Company in respect of the Notes and this Indenture may be served. The Company shall
	1590	  	give prompt written notice to the Trustee of the location, and any change in the location, of such
	1591	  	office or agency. If at any time the Company shall fail to maintain any such required office or
	1592	  	agency or shall fail to furnish the Trustee with the address thereof, such presentations,
	1593	  	surrenders, notices and demands may be made or served at the Corporate Trust Office of the
	1594	  	Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
	1595	  	presentations, surrenders, notices and demands.
		
	1596	  	 (b) The Company may also from time to time designate one or more other offices or

	1597	  	agencies where the Notes may be presented or surrendered for any or all such purposes and may
	1598	  	from time to time rescind such designations; provided, however, that no such designation or
	1599	  	rescission shall in any manner relieve the Company of its obligation to maintain an office in the
	1600	  	Borough of Manhattan, the City of New York. The Company shall give prompt written notice to
	1601	  	the Trustee of any such designation or rescission and of any change in the location of any such
	1602	  	other office or agency.
		
	1603	  	 (c) The Company hereby designates the Corporate Trust Office of the Trustee as one

	1604	  	such office or agency of the Company in accordance with Section 2.04.

  

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	1605	  	 SECTION 4.03. Legal Existence.

		
	1606	  	 Subject to Articles Four and Five, the Company shall do or cause to be done all things

	1607	  	necessary to preserve and keep in full force and effect its legal existence, and the corporate,
	1608	  	partnership or other existence of each Restricted Subsidiary, in accordance with the respective
	1609	  	organizational documents (as the same may be amended from time to time) of each Restricted
	1610	  	Subsidiary and the material rights (charter and statutory) and franchises of the Company and the
	1611	  	Restricted Subsidiaries; provided that the Company shall not be required to preserve any such
	1612	  	right, franchise or (except in the case of the Company) the corporate, partnership or other
	1613	  	existence of its Restricted Subsidiaries if the Company, in good faith, shall determine that the
	1614	  	preservation thereof is no longer desirable in the conduct of the business of the Company and its
	1615	  	Restricted Subsidiaries taken as a whole.
		
	1616	  	 SECTION 4.04. Maintenance of Properties; Insurance; Compliance with Law.

		
	1617	  	 (a) The Company shall, and shall cause each of its Restricted Subsidiaries to, at all

	1618	  	times cause all material properties used or useful in the conduct of their respective businesses to
	1619	  	be maintained and kept in good condition, repair and working order (reasonable wear and tear
	1620	  	excepted) and supplied with all necessary equipment, and shall cause to be made all necessary
	1621	  	repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of
	1622	  	the Company may be necessary so that the business carried on in connection therewith may be
	1623	  	properly and advantageously conducted at all times; provided, however, that nothing in this
	1624	  	Section 4.04(a) shall prevent the Company or any of its Restricted Subsidiaries from
	1625	  	discontinuing the operation or maintenance of any of such properties if such discontinuance is, in
	1626	  	the reasonable judgment of the Company, desirable in the conduct of the business of the
	1627	  	Company and its Subsidiaries taken as a whole and not adverse in any material respect to the
	1628	  	Holders.
		
	1629	  	 (b) The Company shall, and shall cause each of its Restricted Subsidiaries to, keep at

	1630	  	all times all of their material properties which are of an insurable nature insured against such loss
	1631	  	or damage with insurers believed by the Company to be responsible to the extent that Property of
	1632	  	a similar character is usually so insured by corporations similarly situated and owning like
	1633	  	Properties in accordance with good business practice. Subject to the proviso in Section 4.04(a),
	1634	  	the Company shall, and shall cause each of its Restricted Subsidiaries to, use the proceeds from
	1635	  	any such insurance policy to repair, replace or otherwise restore the Property to which such
	1636	  	proceeds relate.
		
	1637	  	 (c) The Company shall, and shall cause each of its Restricted Subsidiaries to, comply

	1638	  	with all statutes, laws, ordinances or government rules and regulations to which they are subject,
	1639	  	the non-compliance with which would materially adversely affect the business, financial
	1640	  	condition or results of operations of the Company and its Restricted Subsidiaries taken as a
	1641	  	whole.

  

 -44- 









			
		
	1642	  	 SECTION 4.05. Waiver of Stay, Extension or Usury Laws.

		
	1643	  	 The Company covenants (to the extent that it may lawfully do so) that it shall not at any

	1644	  	time insist upon, or plead (as a defense or otherwise) or in any manner whatsoever claim or take
	1645	  	the benefit or advantage of, any stay or extension law or any usury law or other law which may
	1646	  	affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully
	1647	  	do so) the Company hereby expressly waives all benefit or advantage of any such law, and
	1648	  	covenants that it will not hinder, delay or impede the execution of any power herein granted to
	1649	  	the Trustee, but will suffer and permit the execution of every such power as though no such law
	1650	  	had been enacted.
		
	1651	  	 SECTION 4.06. Compliance Certificate.

		
	1652	  	 (a) The Company shall deliver to the Trustee, within 120 days after the end of each

	1653	  	fiscal year of the Company, commencing with the Company’s fiscal year ending in December of
	1654	  	2004 an Officers’ Certificate of the Company, stating whether or not to the best knowledge of
	1655	  	the signers thereof the Company or any Restricted Subsidiary is in default in the performance
	1656	  	and observance of any of the terms, provisions and conditions of Section 5.01 or Sections 4.01 to
	1657	  	4.18, inclusive, and if the Company shall be in Default, specifying all such Defaults, the nature
	1658	  	and status thereof of which they may have knowledge and what action the Company is taking or
	1659	  	proposes to take with respect thereto. Such determination shall be made without regard to notice
	1660	  	requirements or periods of grace.
		
	1661	  	 (b) The Company shall deliver to the Trustee, as soon as possible and in any event no

	1662	  	later than ten Business Days after the Company becomes aware or should reasonably become
	1663	  	aware of the occurrence of a Default or an Event of Default or an event which, with notice or the
	1664	  	lapse of time or both, would constitute a Default or Event of Default, an Officers’ Certificate
	1665	  	setting forth the details of such Default or Event of Default, and the action which the Company is
	1666	  	taking or proposes to take with respect to such Default or Event of Default.
		
	1667	  	 (c) The Company shall deliver to the Trustee, within 120 days after the end of each

	1668	  	fiscal year commencing with the Company’s fiscal year ending December of 2004, a written
	1669	  	statement by the Company’s independent public accountants stating whether, in connection with
	1670	  	their audit of the Company’s financial statements, any event which would constitute an Event of
	1671	  	Default as defined herein insofar as they relate to accounting matters has come to their attention
	1672	  	and, if such an Event of Default has come to their attention, specifying the nature and period of
	1673	  	the existence thereof.
		
	1674	  	 SECTION 4.07. Payment of Taxes and Other Claims.

		
	1675	  	 The Company shall, and shall cause each of its Restricted Subsidiaries to, pay or

	1676	  	discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all
	1677	  	material taxes, assessments and governmental charges levied or imposed upon the Company or

  

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	1678	  	any of its Subsidiaries or upon the income, profits, capital or Property of the Company or any of
	1679	  	its Subsidiaries, and (2) all material lawful claims for labor, materials and supplies which, if
	1680	  	unpaid, might by law become a lien upon the Property of the Company or any of its Subsidiaries;
	1681	  	provided, however, that the Company shall not be required to pay or discharge or cause to be
	1682	  	paid or discharged any such tax, assessment, charge or claim whose amount, applicability or
	1683	  	validity is being contested in good faith by appropriate proceedings.
		
	1684	  	 SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.

		
	1685	  	 (a) Upon the occurrence of a Change of Control, each Holder of Notes will have the

	1686	  	right to require the Company to repurchase all or any part of such Holder’s Notes pursuant to the
	1687	  	offer described below (the “Change of Control Offer”) at a purchase price (the “Change of
	1688	  	Control Purchase Price”) equal to 101% of the aggregate principal amount thereof, plus accrued
	1689	  	and unpaid interest, if any, to but excluding the repurchase date (subject to the right of Holders
	1690	  	of record on the relevant record date to receive interest due on the relevant interest payment
	1691	  	date); provided, however, that notwithstanding the occurrence of a Change of Control, the
	1692	  	Company shall not be obligated to purchase the Notes pursuant to this Section 4.08 in the event
	1693	  	that it has mailed the notice to exercise its right to redeem all the Notes under the terms of
	1694	  	paragraph 5 of the Notes at any time prior to the requirement to consummate the Change of
	1695	  	Control Offer and redeems the Notes in accordance with such notice.
		
	1696	  	 (b) Within 30 days following any Change of Control the Company shall (x) cause a

	1697	  	notice of the Change of Control Offer to be sent at least once to the Dow Jones News Service or
	1698	  	similar business news service in the United States, and (y) send, by first-class mail, with a copy
	1699	  	to the Trustee, to each Holder of Notes, at such Holder’s address appearing in the Note register, a
	1700	  	notice stating:
		
	1701	  	 (1) that a Change of Control has occurred or will occur and a Change of

	1702	  	 Control Offer is being made pursuant to this Section 4.08 and that all Notes timely

	1703	  	 tendered will be accepted for payment;

		
	1704	  	 (2) the Change of Control Purchase Price and the purchase date (the “Change

	1705	  	 of Control Payment Date”), which shall be, subject to any contrary requirements of

	1706	  	 applicable law, a Business Day and a point in time occurring after the consummation of

	1707	  	 the Change of Control and not later than 60 days from the date such notice is mailed;

		
	1708	  	 (3) the circumstances and relevant facts regarding the Change of Control; and

		
	1709	  	 (4) the procedures that Holders of Notes must follow in order to tender their

	1710	  	 Notes (or portions thereof) for payment, and the procedures that Holders of Notes must

	1711	  	 follow in order to withdraw an election to tender Notes (or portions thereof) for payment.


  

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	1712	  	 Holders electing to have a Note purchased shall be required to surrender the Note, with

	1713	  	an appropriate form duly completed, to the Company or its agent at the address specified in the
	1714	  	notice at least three Business Days prior to the Change of Control Payment Date. Holders shall
	1715	  	be entitled to withdraw their election if the Trustee or the Company receives, not later than one
	1716	  	Business Day prior to the Change of Control Payment Date, a telegram, telex, facsimile
	1717	  	transmission, electronic mail or letter setting forth the name of the Holder, the principal amount
	1718	  	of the Note that was delivered for purchase by the Holder and a statement that such Holder is
	1719	  	withdrawing its election to have such Note purchased.
		
	1720	  	 (c) On or prior to the Change of Control Payment Date, the Company shall

	1721	  	irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or any of its
	1722	  	Subsidiaries is acting as the Paying Agent, segregate and hold in trust) in cash an amount equal
	1723	  	to the Change of Control Purchase Price payable to the Holders entitled thereto, to be held for
	1724	  	payment in accordance with this Section 4.08. On the Change of Control Payment Date, the
	1725	  	Company or its Agent shall deliver to the Trustee the Notes or portions thereof that have been
	1726	  	properly tendered to and are to be accepted by the Company for payment.
		
	1727	  	 (d) The Trustee or the Paying Agent shall, on the Change of Control Payment Date,

	1728	  	mail or deliver payment to each tendering Holder of the Change of Control Purchase Price. In
	1729	  	the event that the aggregate Change of Control Purchase Price is less than the amount delivered
	1730	  	by the Company to the Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case
	1731	  	may be, shall deliver the excess to the Company immediately after the Change of Control
	1732	  	Payment Date.
		
	1733	  	 (e) The Company shall comply, to the extent applicable, with the requirements of

	1734	  	Section 14(e) and Rule l4e-1 of the Exchange Act and any other applicable securities laws or
	1735	  	regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer,
	1736	  	including any applicable securities laws of the United States. To the extent that the provisions of
	1737	  	any securities laws or regulations conflict with the provisions of this Section 4.08, the Company
	1738	  	will comply with the applicable securities laws and regulations and will not be deemed to have
	1739	  	breached its obligations under this Section 4.08 by virtue of such compliance with these
	1740	  	securities laws or regulations.
		
	1741	  	 (f) The Company shall not be required to make a Change of Control Offer upon a

	1742	  	Change of Control if another entity makes the Change of Control Offer in the manner, at the
	1743	  	times and otherwise in compliance with the requirements set forth in this Section 4.08 applicable
	1744	  	to a Change of Control Offer made by the Company and purchases all Notes properly tendered
	1745	  	and not withdrawn under the Change of Control Offer.
		
	1746	  	 SECTION 4.09. Limitation on Debt.

		
	1747	  	 (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur,

	1748	  	directly or indirectly, any Debt unless, after giving effect to the application of the proceeds

  

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	1749	  	therefrom, no Default or Event of Default would occur as a consequence of such Incurrence or
	1750	  	be continuing following such Incurrence and either:
		
	1751	  	 (1) after giving effect to the Incurrence of such Debt and the application of the

	1752	  	 proceeds thereof, the Consolidated Fixed Charge Coverage Ratio would be at least 2.0 to

	1753	  	 1.0; or

		
	1754	  	 (2) such Debt is Permitted Debt.

		
	1755	  	 (b) The term “Permitted Debt” is defined to include the following:

		
	1756	  	 (1) Debt of the Company evidenced by the Notes (excluding any Additional

	1757	  	 Notes) issued in this offering and any Notes issued in exchange for the Notes (excluding

	1758	  	 any Additional Notes) pursuant to the Registration Rights Agreement;

		
	1759	  	 (2) Debt of the Company or a Restricted Subsidiary under Credit Facilities,

	1760	  	 provided that the aggregate principal amount of all such Debt under Credit Facilities at

	1761	  	 any one time outstanding shall not exceed $2,250 million;

		
	1762	  	 (3) Debt of the Company or a Restricted Subsidiary in respect of Capital

	1763	  	 Lease Obligations and Purchase Money Debt, provided that:

		
	1764	  	 (i) the aggregate principal amount of such Debt does not exceed the

	1765	  	 Fair Market Value (on the date of the Incurrence thereof) of the Property

	1766	  	 acquired, constructed or leased; and

		
	1767	  	 (ii) the aggregate principal amount of all Debt Incurred and then

	1768	  	 outstanding pursuant to this Section 4.09(b)(3) (together with all Permitted

	1769	  	 Refinancing Debt Incurred and then outstanding in respect of Debt previously

	1770	  	 Incurred pursuant to this Section 4.09(b)(3)) does not exceed 15% of Total

	1771	  	 Assets;

		
	1772	  	 (4) Debt of the Company owing to and held by any Restricted Subsidiary and

	1773	  	 Debt of a Restricted Subsidiary owing to and held by the Company or any Restricted

	1774	  	 Subsidiary; provided, that if the Company is the obligor on such Debt Incurred after the

	1775	  	 Issue Date, then such Debt is expressly subordinated by its terms to the prior payment in

	1776	  	 full in cash of the Notes; provided, however, that any subsequent issue or transfer of

	1777	  	 Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a

	1778	  	 Restricted Subsidiary or any subsequent transfer of any such Debt (except to the

	1779	  	 Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the

	1780	  	 Incurrence of such Debt by the issuer thereof not permitted by this Section 4.09(b)(4);


  

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	1781	  	 (5) Debt of a Restricted Subsidiary outstanding on the date on which such

	1782	  	 Restricted Subsidiary is acquired by the Company or otherwise becomes a Restricted

	1783	  	 Subsidiary (other than Debt Incurred as consideration in, or to provide all or any portion

	1784	  	 of the funds or credit support utilized to consummate, the transaction or series of

	1785	  	 transactions pursuant to which such Restricted Subsidiary became a Subsidiary of the

	1786	  	 Company or was otherwise acquired by the Company);

		
	1787	  	 (6) Debt under Interest Rate Agreements entered into by the Company or a

	1788	  	 Restricted Subsidiary for the purpose of managing interest rate risk in the ordinary course

	1789	  	 of the financial management of the Company or such Restricted Subsidiary and not for

	1790	  	 speculative purposes;

		
	1791	  	 (7) Debt under Currency Exchange Protection Agreements entered into by the

	1792	  	 Company or a Restricted Subsidiary for the purpose of managing currency exchange rate

	1793	  	 risks in the ordinary course of business and not for speculative purposes;

		
	1794	  	 (8) Guarantees by the Company or any Restricted Subsidiary of Debt or any

	1795	  	 other obligation or liability of the Company or any Restricted Subsidiary that the

	1796	  	 Company or such Restricted Subsidiary could otherwise have Incurred pursuant to this

	1797	  	 covenant;

		
	1798	  	 (9) Debt in connection with one or more standby letters of credit or

	1799	  	 performance or surety bonds issued by the Company or a Restricted Subsidiary in the

	1800	  	 ordinary course of business or pursuant to self-insurance obligations and not in

	1801	  	 connection with the borrowing of money or the obtaining of advances or credit not to

	1802	  	 exceed 2.5% of Total Assets at any time outstanding;

		
	1803	  	 (10) Debt of the Company or a Restricted Subsidiary outstanding on the Issue

	1804	  	 Date not otherwise described in Sections 4.09(b) (1) through (9) above;

		
	1805	  	 (11) Debt of the Company or a Restricted Subsidiary in an aggregate principal

	1806	  	 amount outstanding at any one time not to exceed $500.0 million which amount can

	1807	  	 include Guarantees of Debt of Unrestricted Subsidiaries, provided such Guarantee is

	1808	  	 Incurred in compliance with Section 4.10;

		
	1809	  	 (12) Guarantees by the Company or any Restricted Subsidiary of Debt of

	1810	  	 Spansion and its Subsidiaries, provided that such Guarantees do not exceed $ 500.0

	1811	  	 million in the aggregate at any one time outstanding, and provided, further that such

	1812	  	 Guarantees are Incurred in compliance with Section 4.10; and

		
	1813	  	 (13) Permitted Refinancing Debt Incurred in respect of Debt Incurred pursuant

	1814	  	 to Section 4.09(a)(1) and Sections 4.09(b) (1), (3), (5) and (10) above and this Section

	1815	  	 4.09(b)(13).


  

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	1816	  	Notwithstanding anything to the contrary in this covenant:
		
	1817	  	 (i) the Company shall not Incur any Debt pursuant to this covenant if the

	1818	  	 proceeds thereof are used, directly or indirectly, to Refinance any Subordinated

	1819	  	 Obligations unless such Debt shall be subordinated to the Notes to at least the same

	1820	  	 extent as such Subordinated Obligations;

		
	1821	  	 (ii) the Company shall not permit any Restricted Subsidiary to Incur any Debt

	1822	  	 pursuant to Section 4.09(a)(2) if the proceeds thereof are used, directly or indirectly, to

	1823	  	 Refinance any Debt of the Company; and

		
	1824	  	 (iii) accrual of interest, accretion or amortization of original issue discount and

	1825	  	 the payment of interest or dividends in the form of additional Debt will be deemed not to

	1826	  	 be an Incurrence of Debt for the purposes of this covenant.

		
	1827	  	 For the purposes of determining compliance with this Section 4.09, in the event that an

	1828	  	item of Debt meets the criteria of more than one of the categories of Permitted Debt described in
	1829	  	clauses (1) through (13) above or is entitled to be Incurred pursuant to Section 4.09(a)(1) this
	1830	  	covenant, the Company shall, in its sole discretion, classify (or later reclassify in whole or in
	1831	  	part, in its sole discretion) such item of Debt in any manner that complies with this Section 4.09;
	1832	  	provided, that any Debt outstanding under Credit Facilities after the application of the net
	1833	  	proceeds from the sale of the Notes will be treated as Incurred on the Issue Date pursuant to
	1834	  	Section 4.09(b)(2).
		
	1835	  	 For purposes of determining compliance with any dollar-denominated restriction on the

	1836	  	Incurrence of Debt, with respect to any Debt which is denominated in a foreign currency, the
	1837	  	dollar-equivalent principal amount of such Debt Incurred pursuant thereto shall be calculated
	1838	  	based on the relevant currency exchange rate in effect on the date that such Debt was Incurred,
	1839	  	and any such foreign-denominated Debt may be Refinanced or replaced or subsequently
	1840	  	Refinanced or replaced in an amount equal to the dollar equivalent principal amount of such
	1841	  	Debt on the date of such refinancing or replacement whether or not such amount is greater or less
	1842	  	than the dollar equivalent principal amount of the Debt on the date of initial Incurrence.
		
	1843	  	 SECTION 4.10. Limitation on Restricted Payments.

		
	1844	  	 (a) The Company shall not make, and shall not permit any Restricted Subsidiary to

	1845	  	make, directly or indirectly, any Restricted Payment if at the time of, and after giving effect to,
	1846	  	such proposed Restricted Payment,
		
	1847	  	 (1) a Default or Event of Default shall have occurred and be continuing,

		
	1848	  	 (2) the Company could not Incur at least $1.00 of additional Debt pursuant to

	1849	  	 Section 4.09(a)(1) or


  

 -50- 









			
		
	1850	  	 (3) the aggregate amount of such Restricted Payment and all other Restricted

	1851	  	 Payments declared or made since the Issue Date (the amount of any Restricted Payment,

	1852	  	 if made other than in cash, to be based upon Fair Market Value at the time of such

	1853	  	 Restricted Payment) would exceed an amount equal to the sum of:

		
	1854	  	 (i) 50% of the aggregate amount of Consolidated Net Income accrued

	1855	  	 during the period (treated as one accounting period) from the beginning of the

	1856	  	 fiscal quarter during which the Issue Date occurs to the end of the most recently

	1857	  	 ended fiscal quarter for which internal financial statements are available (or if the

	1858	  	 aggregate amount of Consolidated Net Income for such period shall be a deficit,

	1859	  	 minus 100% of such deficit), plus

		
	1860	  	 (ii) 100% of Capital Stock Sale Proceeds, plus

		
	1861	  	 (iii) the sum of:

		
	1862	  	 (A) the aggregate net cash proceeds received by the Company

	1863	  	 or any Restricted Subsidiary from the issuance or sale after the Issue Date

	1864	  	 of convertible or exchangeable Debt or Disqualified Stock that has been

	1865	  	 converted into or exchanged for Capital Stock (other than Disqualified

	1866	  	 Stock) of the Company, and

		
	1867	  	 (B) the aggregate amount by which Debt (other than

	1868	  	 Subordinated Obligations) of the Company or any Restricted Subsidiary is

	1869	  	 reduced on the Company’s consolidated balance sheet on or after the Issue

	1870	  	 Date upon the conversion or exchange of any such Debt issued or sold on

	1871	  	 or prior to the Issue Date that is convertible or exchangeable for Capital

	1872	  	 Stock (other than Disqualified Stock) of the Company,

		
	1873	  	 excluding, in the case of clause (A) or (B):

		
	1874	  	 (x) any such Debt issued or sold to the Company or a

	1875	  	 Subsidiary of the Company or an employee stock ownership plan or trust

	1876	  	 established by the Company or any such Subsidiary for the benefit of their

	1877	  	 employees, and

		
	1878	  	 (y) the aggregate amount of any cash or other Property (other

	1879	  	 than Capital Stock of the Company which is not Disqualified Stock)

	1880	  	 distributed by the Company or any Restricted Subsidiary upon any such

	1881	  	 conversion or exchange, plus

		
	1882	  	 (iv) an amount equal to the sum of:


  

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	1883	  	 (A) the net reduction in Investments in any Person other than

	1884	  	 the Company or a Restricted Subsidiary resulting from dividends,

	1885	  	 repayments of loans or advances or other transfers of Property, in each

	1886	  	 case to the Company or a Restricted Subsidiary from such Person;

		
	1887	  	 (B) to the extent that any Investment (other than a Permitted

	1888	  	 Investment) that was made after the Issue Date is sold for cash or

	1889	  	 otherwise liquidated or repaid for cash, the cash return of capital to the

	1890	  	 Company or its Restricted Subsidiaries with respect to such Investment;

	1891	  	 and

		
	1892	  	 (C) the portion (proportionate to the Company’s equity interest

	1893	  	 in such Unrestricted Subsidiary) of the Fair Market Value of the net assets

	1894	  	 of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is

	1895	  	 designated a Restricted Subsidiary;

		
	1896	  	 provided, however, that the amounts in (A), (B) and (C) shall not exceed, in the

	1897	  	 case of any Person, the amount of Investments previously made (and treated as a

	1898	  	 Restricted Payment) by the Company or any Restricted Subsidiary in such Person,

	1899	  	 plus

		
	1900	  	 (v) $100.0 million.

		
	1901	  	 (b) Notwithstanding the foregoing limitation, the Company and its Restricted

	1902	  	Subsidiaries, as applicable, may:
		
	1903	  	 (1) pay dividends on its Capital Stock within 60 days of the declaration

	1904	  	 thereof if, on the declaration date, such dividends could have been paid in compliance

	1905	  	 with the Indenture; provided, however, that such dividend shall be included in the

	1906	  	 calculation of the amount of Restricted Payments at the time declared;

		
	1907	  	 (2) purchase, repurchase, redeem, legally defease, acquire or retire for value

	1908	  	 Capital Stock of the Company or Subordinated Obligations in exchange for, or out of the

	1909	  	 proceeds of the substantially concurrent sale of, Capital Stock of the Company (other

	1910	  	 than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the

	1911	  	 Company or an employee stock ownership plan or trust established by the Company or

	1912	  	 any such Subsidiary for the benefit of their employees); provided, however, that

		
	1913	  	 (x) such purchase, repurchase, redemption, legal defeasance,

	1914	  	 acquisition or retirement shall be excluded in the calculation of the amount of

	1915	  	 Restricted Payments, and


  

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	1916	  	 (y) the Capital Stock Sale Proceeds from such exchange or sale shall

	1917	  	 be excluded from the calculation pursuant to Section 4.10(a)(3)(ii);

		
	1918	  	 (3) purchase, repurchase, redeem, legally defease, acquire or retire for value

	1919	  	 any Subordinated Obligations in exchange for, or out of the proceeds of the substantially

	1920	  	 concurrent sale of, Permitted Refinancing Debt; provided, however, that such purchase,

	1921	  	 repurchase, redemption, legal defeasance, acquisition or retirement shall be excluded in

	1922	  	 the calculation of the amount of Restricted Payments;

		
	1923	  	 (4) repurchase shares of, or options to purchase shares of, common stock of

	1924	  	 the Company or any of its Subsidiaries from current or former officers, directors or

	1925	  	 employees of the Company or any of its Subsidiaries (or permitted transferees of such

	1926	  	 current or former officers, directors or employees), pursuant to the terms of agreements

	1927	  	 (including employment agreements) or plans (or amendments thereto) approved by the

	1928	  	 Board of Directors under which such individuals purchase or sell, or are granted the

	1929	  	 option to purchase or sell, shares of such common stock; provided, however, that:

		
	1930	  	 (x) the aggregate amount of such repurchases shall not exceed $ 10.0

	1931	  	 million in any calendar year;

		
	1932	  	 and

		
	1933	  	 (y) at the time of such repurchase, no other Default or Event of

	1934	  	 Default shall have occurred and be continuing (or result therefrom); provided

	1935	  	 further, however, that such repurchases shall be excluded in the calculation of the

	1936	  	 amount of Restricted Payments;

		
	1937	  	 (5) make payments on intercompany Debt, the Incurrence of which was

	1938	  	 permitted pursuant to Section 4.09, provided that such purchase, repurchase, redemption,

	1939	  	 legal defeasance, acquisition or retirement shall be excluded in the calculation of the

	1940	  	 amount of Restricted Payments made after the Issue Date;

		
	1941	  	 (6) make cash payments, in lieu of issuance of fractional shares in connection

	1942	  	 with the exercise of warrants, options or other securities convertible into or exchangeable

	1943	  	 for the Capital Stock of the Company or a Restricted Subsidiary; provided that any such

	1944	  	 payments and dividends shall not be included in the calculation of the amount of

	1945	  	 Restricted Payments;

		
	1946	  	 (7) repurchase Capital Stock to the extent such repurchase is deemed to occur

	1947	  	 upon a cashless exercise of stock options or warrants; provided that all such repurchases

	1948	  	 and dividends shall not be included in the calculation of the amount of Restricted

	1949	  	 Payments and no proceeds in respect of the issuance of Capital Stock shall be deemed to

	1950	  	 have been received for the purposes of Section 4.10(a)(3)(ii);


  

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	1951	  	 (8) repurchase or redeem, for nominal consideration, preferred stock purchase

	1952	  	 rights issued in connection with any shareholder rights plan of the Company; provided

	1953	  	 that any such payments shall not be included in the calculation of the amount of

	1954	  	 Restricted Payments;

		
	1955	  	 (9) make payments to the limited partners (that are not Affiliates of the

	1956	  	 Company) of AMD Fab 36 Limited Liability Company & Co. KG (“AMD Fab 36 KG”)

	1957	  	 under the partnership agreements of AMD Fab 36 KG dated April 21, 2004, as such

	1958	  	 agreements may be amended from time to time;

		
	1959	  	 (10) purchase, repurchase, redeem or acquire the interests of the limited

	1960	  	 partners (that are not Affiliates of the Company) of AMD Fab 36 KG, including the silent

	1961	  	 partnership interests and the partnership interests, under the partnership agreements of

	1962	  	 AMD Fab 36 KG dated April 21, 2004, as such agreements may be amended from time

	1963	  	 to time; and

		
	1964	  	 (11) other Restricted Payments in an aggregate amount not to exceed $ 100.0

	1965	  	 million.

		
	1966	  	 SECTION 4.11. Limitation on Liens.

		
	1967	  	 The Company shall not directly or indirectly, Incur or suffer to exist, any Lien (other than

	1968	  	Permitted Liens) upon any of its Property (including Capital Stock of a Restricted Subsidiary),
	1969	  	whether owned at the Issue Date or thereafter acquired, or any interest therein or any income or
	1970	  	profits therefrom, unless it has made or will make effective provision whereby the Notes will be
	1971	  	secured by such Lien equally and ratably with (or, if such other Debt constitutes Subordinated
	1972	  	Obligations, prior to) all other Debt or other obligations of the Company secured by such Lien
	1973	  	for so long as such other Debt or other obligations are secured by such Lien; provided, however,
	1974	  	that if the Debt or other obligations so secured are expressly subordinated to the Notes, then the
	1975	  	Lien securing such Debt or other obligations shall be subordinated and junior to the Lien
	1976	  	securing the Notes.
		
	1977	  	 SECTION 4.12. Limitation on Asset Sales.

		
	1978	  	 (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly

	1979	  	or indirectly, consummate any Asset Sale unless:
		
	1980	  	 (1) the Company or such Restricted Subsidiary receives consideration at the

	1981	  	 time of such Asset Sale at least equal to the Fair Market Value of the Property subject to

	1982	  	 such Asset Sale;


  

 -54- 









			
	1983	  	 (2) at least 75% of the consideration paid to the Company or such Restricted

	1984	  	 Subsidiary in connection with such Asset Sale is in the form of cash or Cash Equivalents;

	1985	  	 and

		
	1986	  	 (3) the Company delivers an Officers’ Certificate to the Trustee certifying that

	1987	  	 such Asset Sale complies with the foregoing Sections 4.12(a)(1) and (2).

		
	1988	  	Solely for the purposes of Section 4.12(a)(2), the following will be deemed to be cash:
		
	1989	  	 (x) the assumption by the purchaser of liabilities of the Company or any Restricted

	1990	  	Subsidiary (other than contingent liabilities or liabilities that are by their terms subordinated to
	1991	  	the Notes) as a result of which the Company and the Restricted Subsidiaries are no longer
	1992	  	obligated with respect to such liabilities;
		
	1993	  	 (y) any securities, notes or other obligations received by the Company or any such

	1994	  	Restricted Subsidiary from such purchaser to the extent they are promptly converted or
	1995	  	monetized by the Company or such Restricted Subsidiary into cash (to the extent of the cash
	1996	  	received); and
		
	1997	  	 (z) Additional Assets.

		
	1998	  	 (b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied

	1999	  	by the Company or a Restricted Subsidiary, to the extent the Company or such Restricted
	2000	  	Subsidiary elects (or is required by the terms of any Debt) to:
		
	2001	  	 (1) permanently prepay or permanently repay any (A) Debt under any Credit

	2002	  	 Facility, (B) Debt evidenced by the Convertible Notes, (C) Debt which had been secured

	2003	  	 by the assets sold in the relevant Asset Sale, and (D) Debt of a Restricted Subsidiary;

	2004	  	 and/or

		
	2005	  	 (2) to reinvest in Additional Assets (including by means of an Investment in

	2006	  	 Additional Assets by a Restricted Subsidiary with Net Available Cash received by the

	2007	  	 Company or another Restricted Subsidiary).

		
	2008	  	 (c) Any Net Available Cash from an Asset Sale not applied in accordance with

	2009	  	Section 4.12(b) within 365 days from the date of the receipt of such Net Available Cash shall
	2010	  	constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $25.0
	2011	  	million (taking into account income earned on such Excess Proceeds, if any), the Company will
	2012	  	be required to make an offer to repurchase (the “Prepayment Offer”) the Notes, which offer shall
	2013	  	be in the amount of the Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata
	2014	  	basis according to principal amount, at a purchase price equal to 100% of the principal amount
	2015	  	thereof, plus accrued and unpaid interest, to but not including the repurchase date (subject to the
	2016	  	right of Holders of record on the relevant record date to receive interest due on the relevant

  

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	2017	  	interest payment date), in accordance with the procedures (including prorating in the event of
	2018	  	oversubscription) set forth in this Indenture. To the extent that any portion of the amount of Net
	2019	  	Available Cash remains after compliance with the preceding sentence and provided that all
	2020	  	Holders of Notes have been given the opportunity to tender their Notes for repurchase in
	2021	  	accordance with this Indenture, the Company or such Restricted Subsidiary may use such
	2022	  	remaining amount for any purpose permitted by this Indenture, and the amount of Excess
	2023	  	Proceeds will be reset to zero.
		
	2024	  	 The term “Allocable Excess Proceeds” shall mean the product of:

		
	2025	  	 (i) the Excess Proceeds; and

		
	2026	  	 (ii) a fraction,

		
	2027	  	 (A) the numerator of which is the aggregate principal

	2028	  	 amount of the Notes outstanding on the date of the Prepayment

	2029	  	 Offer, and

		
	2030	  	 (B) the denominator of which is the sum of the

	2031	  	 aggregate principal amount of the Notes outstanding on the date of

	2032	  	 the Prepayment Offer and the aggregate principal amount of other

	2033	  	 Debt of the Company outstanding on the date of the Prepayment

	2034	  	 Offer that is pari passu in right of payment with the Notes and

	2035	  	 subject to terms and conditions in respect of Asset Sales similar in

	2036	  	 all material respects to this covenant and requiring the Company to

	2037	  	 make an offer to repurchase such Debt at substantially the same

	2038	  	 time as the Prepayment Offer.

		
	2039	  	 (d) Within five Business Days after the Company is obligated to make a Prepayment

	2040	  	Offer as described in the preceding paragraph, the Company shall send a written notice, by first -
	2041	  	class mail, to the Holders of Notes, accompanied by such information regarding the Company
	2042	  	and its Subsidiaries as the Company in good faith believes will enable such Holders to make an
	2043	  	informed decision with respect to such Prepayment Offer. Such notice shall state, among other
	2044	  	things, the purchase price and the repurchase date (the “Purchase Date”), which shall be, subject
	2045	  	to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later
	2046	  	than 60 days from the date such notice is mailed.
		
	2047	  	 (e) Not later than the date upon which written notice of a Prepayment Offer is

	2048	  	delivered to the Holders of the Notes as provided in Section 4.12(d), the Company shall deliver
	2049	  	to the Trustee an Officers’ Certificate as to (i) the amount of the Prepayment Offer to Holders of
	2050	  	Notes (the “Offer Amount”), (ii) the allocation of the Net Available Cash from the Asset Sales
	2051	  	pursuant to which such Prepayment Offer is being made and (iii) the compliance of such
	2052	  	allocation with the provisions of Sections 4.12(b) and (c). On or before the Purchase Date, the

  

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	2053	  	Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the
	2054	  	Company or a Restricted Subsidiary is the Paying Agent, shall segregate and hold in trust) in
	2055	  	Cash Equivalents (other than in those enumerated in clause (c) of the definition of Cash
	2056	  	Equivalents), maturing on the last day prior to the Purchase Date or on the Purchase Date if
	2057	  	funds are immediately available by the opening of business, an amount equal to the Offer
	2058	  	Amount to be held for payment in accordance with the provisions of this Section 4.12. Upon the
	2059	  	expiration of the period for which the Prepayment Offer remains open (the “Offer Period”), the
	2060	  	Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have
	2061	  	been properly tendered to and are to be accepted by the Company. The Trustee or the Paying
	2062	  	Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the
	2063	  	amount of the purchase price. In the event that the aggregate purchase price of the Notes
	2064	  	delivered by the Company to the Trustee is less than the Offer Amount, the Trustee or the Paying
	2065	  	Agent shall deliver the excess to the Company immediately after the expiration of the Offer
	2066	  	Period for application in accordance with this Section 4.12.
		
	2067	  	 (f) Holders electing to have a Note purchased shall be required to surrender the Note,

	2068	  	with an appropriate form duly completed, to the Company or its agent at the address specified in
	2069	  	the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to
	2070	  	withdraw their election if the Trustee or the Company receives not later than one Business Day
	2071	  	prior to the Purchase Date a telegram, telex, facsimile transmission, electronic mail or letter
	2072	  	setting forth the name of the Holder, the principal amount of the Note that was delivered for
	2073	  	purchase by the Holder and a statement that such Holder is withdrawing its election to have such
	2074	  	Note purchased. If at the expiration of the Offer Period the aggregate principal of Notes
	2075	  	surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be
	2076	  	purchased on pro rata basis for all Notes (with such adjustments as may be deemed appropriate
	2077	  	by the Company so that only Notes in denominations of $1,000, or integral multiples thereof,
	2078	  	shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes
	2079	  	equal in principal amount to the unpurchased portion of the Notes surrendered.
		
	2080	  	 (g) At the time the Company or its agent delivers Notes to the Trustee that are to be

	2081	  	accepted for purchase, the Company shall also deliver an Officer’s Certificate stating that such
	2082	  	Notes are to be accepted by the Company pursuant to and in accordance with the terms of this
	2083	  	Section 4.12. A Note shall be deemed to have been accepted for purchase at the time the Trustee
	2084	  	or the Paying Agent mails or delivers payment therefor to the surrendering Holder.
		
	2085	  	 (h) The Company will comply, to the extent applicable, with the requirements of

	2086	  	Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in
	2087	  	connection with the repurchase of Notes pursuant to this Section 4.12. To the extent that the
	2088	  	provisions of any securities laws or regulations conflict with provisions of this Section 4.12, the
	2089	  	Company will comply with the applicable securities laws and regulations and will not be deemed
	2090	  	to have breached its obligations under this Section 4.12 by virtue thereof.

  

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	2091	  	 SECTION 4.13. Limitation on Restrictions on Distributions from Restricted

	2092	  	Subsidiaries.
		
	2093	  	 (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly

	2094	  	or indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of
	2095	  	any Restricted Subsidiary to:
		
	2096	  	 (1) pay dividends, in cash or otherwise, or make any other distributions on or

	2097	  	 in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company

	2098	  	 or any other Restricted Subsidiary;

		
	2099	  	 (2) make any loans or advances to the Company or any other Restricted

	2100	  	 Subsidiary; or

		
	2101	  	 (3) transfer any of its Property to the Company or any other Restricted

	2102	  	 Subsidiary.

		
	2103	  	 (b) The foregoing limitations will not apply:

		
	2104	  	 (1) With respect to Section 4.13(a)(1), (2) and (3), to restrictions which are:

		
	2105	  	 (A) in effect on the Issue Date (including, without limitation,

	2106	  	 restrictions pursuant to the Notes, the Indenture, and any Credit Facility in

	2107	  	 existence on the Issue Date);

		
	2108	  	 (B) relating to Debt of a Restricted Subsidiary existing at the time it

	2109	  	 became a Restricted Subsidiary if such restriction was not created in connection

	2110	  	 with or in anticipation of the transaction or series of transactions pursuant to

	2111	  	 which such Restricted Subsidiary became a Restricted Subsidiary or was acquired

	2112	  	 by the Company;

		
	2113	  	 (C) that result from the Refinancing of Debt Incurred pursuant to an

	2114	  	 agreement referred to in Section 4.13(b)(1)(A) or (B) above or in clause (b)(2)(A)

	2115	  	 or (B) below, provided such restrictions are not materially less favorable, taken as

	2116	  	 a whole, to the Holders of Notes than those under the agreement evidencing the

	2117	  	 Debt so Refinanced;

		
	2118	  	 (D) relating to Debt incurred after the Issue Date, so long as such

	2119	  	 restrictions (x) are not materially less favorable, taken as whole, to the Holders of

	2120	  	 Notes than those restrictions in effect on the Issue Date pursuant to the Notes, the

	2121	  	 Indenture and the Credit Facilities in existence on the Issue Date or (y) relate to

	2122	  	 Debt incurred pursuant to Section 4.09(b)(3), so long as the respective restrictions

	2123	  	 apply only to specific Property or projects financed with the respective Incurrence


  

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	2124	  	 of Debt and/or to any Subsidiary substantially of all whose assets consist of

	2125	  	 Property or a project financed with proceeds of such Debt;

		
	2126	  	 (E) existing under or by reason of applicable law or governmental

	2127	  	 regulation; or

		
	2128	  	 (F) that constitute customary restrictions contained in joint venture

	2129	  	 agreements, asset sale agreements, sale-leaseback agreements, stock sale

	2130	  	 agreements and other similar agreements entered into in good faith and not

	2131	  	 otherwise prohibited by the Indenture; and

		
	2132	  	 (2) With respect to Section 4.13(a)(3) only, to restrictions:

		
	2133	  	 (A) relating to Debt that is permitted to be Incurred and secured

	2134	  	 without also securing the Notes pursuant to Sections 4.09 and 4.11 that limit the

	2135	  	 right of the debtor to dispose of the Property securing such Debt;

		
	2136	  	 (B) encumbering Property at the time such Property was acquired by

	2137	  	 the Company or any Restricted Subsidiary, so long as such restrictions relate

	2138	  	 solely to the Property so acquired and were not created in connection with or in

	2139	  	 anticipation of such acquisition;

		
	2140	  	 (C) resulting from customary provisions restricting subletting or

	2141	  	 assignment of leases or customary provisions in other agreements that restrict

	2142	  	 assignment of such agreements or rights thereunder;

		
	2143	  	 (D) restrictions on cash or other deposits or net worth imposed by

	2144	  	 customers under contracts entered into in the ordinary course of business; or

		
	2145	  	 (E) customary restrictions contained in asset sale agreements limiting

	2146	  	 the transfer of such Property pending the closing of such sale.

		
	2147	  	 SECTION 4.14. Limitation on Transactions with Affiliates.

		
	2148	  	 (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly

	2149	  	or indirectly, conduct any business or enter into or suffer to exist any transaction or series of
	2150	  	related transactions (including the purchase, sale, transfer, assignment, lease, conveyance or
	2151	  	exchange of any Property or the rendering of any service) with, or for the benefit of, any
	2152	  	Affiliate of the Company (an “Affiliate Transaction”), unless:
		
	2153	  	 (1) the terms of such Affiliate Transaction are:

		
	2154	  	 (A) set forth in writing; and


  

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	2155	  	 (B) no less favorable to the Company or such Restricted Subsidiary, as

	2156	  	 the case may be, than those that could be obtained in a comparable arm’s-length

	2157	  	 transaction with a Person that is not an Affiliate of the Company;

		
	2158	  	 (2) if such Affiliate Transaction involves aggregate payments or value in

	2159	  	 excess of $25.0 million, the Board of Directors (including at least a majority of the

	2160	  	 disinterested members of the Board of Directors) approves such Affiliate Transaction

	2161	  	 and, in its good faith judgment, believes that such Affiliate Transaction complies with

	2162	  	 Section 4.14(a)(1)(B) as evidenced by a resolution of the Board of Directors; and

		
	2163	  	 (3) if such Affiliate Transaction involves aggregate payments or value in

	2164	  	 excess of $50.0 million, the Company obtains a written opinion from an Independent

	2165	  	 Financial Advisor to the effect that the consideration to be paid or received in connection

	2166	  	 with the such Affiliate Transaction is fair, from a financial point of view, to the Company

	2167	  	 and any relevant Restricted Subsidiaries.

		
	2168	  	 (b) Notwithstanding the foregoing limitation, the Company or any Restricted

	2169	  	Subsidiary may enter into or suffer to exist the following:
		
	2170	  	 (1) any transaction or series of transactions between the Company and one or

	2171	  	 more Restricted Subsidiaries or between two or more Restricted Subsidiaries;

		
	2172	  	 (2) any Restricted Payment permitted to be made pursuant to Section 4.10 or

	2173	  	 any Permitted Investment;

		
	2174	  	 (3) any employment, indemnification or other similar agreement or employee

	2175	  	 benefit plan entered into by the Company or a Restricted Subsidiary with an employee,

	2176	  	 officer or director (and payments pursuant thereto) in the ordinary course of business and

	2177	  	 consistent with past practice that is not otherwise prohibited by the Indenture;

		
	2178	  	 (4) loans and advances to employees made in the ordinary course of business

	2179	  	 consistent with past practices of the Company or a Restricted Subsidiary, as the case may

	2180	  	 be; provided that such loans and advances do not exceed $10.0 million in the aggregate at

	2181	  	 any one time outstanding;

		
	2182	  	 (5) payment of reasonable directors’ fees to persons who are not otherwise

	2183	  	 Affiliates of the Company;

		
	2184	  	 (6) any issuances of Capital Stock (other than Disqualified Stock) of the

	2185	  	 Company to Affiliates of the Company; and

		
	2186	  	 (7) agreements (and the transactions contemplated thereunder) in effect on the

	2187	  	 Issue Date and any modifications, extensions or renewals thereto that are not materially


  

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	2188	  	 less favorable, taken as a whole, to the Company or any Restricted Subsidiary than such

	2189	  	 agreements as in effect on the Issue Date.

		
	2190	  	 SECTION 4.15. Designation of Restricted and Unrestricted Subsidiaries.

		
	2191	  	 (a) The Board of Directors may designate any Subsidiary of the Company to be an

	2192	  	Unrestricted Subsidiary if:
		
	2193	  	 (1) either (1) the Company or a Restricted Subsidiary, as the case may be, is

	2194	  	 permitted to make an Investment in such Subsidiary equal to the sum of the (A) Fair

	2195	  	 Market Value of the Capital Stock of such Subsidiary plus (B) the amount of any Debt

	2196	  	 owed by such Subsidiary to the Company, in each case pursuant to Section 4.10(a), or (2)

	2197	  	 such Investment constitutes a Permitted Investment;

		
	2198	  	 (2) immediately after giving pro forma effect to such designation, the

	2199	  	 Company could Incur at least $1.00 of additional Debt pursuant to Section 4.09(a)(1);

	2200	  	 and

		
	2201	  	 (3) such Subsidiary does not own any Capital Stock or Debt of, or own or

	2202	  	 hold any Lien on any Property of, the Company or any Restricted Subsidiary and does

	2203	  	 not have any Debt other than Non-Recourse Debt.

		
	2204	  	 Unless so designated as an Unrestricted Subsidiary, any Person that becomes a

	2205	  	Subsidiary of the Company will be classified as a Restricted Subsidiary; provided, however, that
	2206	  	such Subsidiary shall not be designated a Restricted Subsidiary and shall be automatically
	2207	  	classified as an Unrestricted Subsidiary if such Person is a Subsidiary of an Unrestricted
	2208	  	Subsidiary.
		
	2209	  	 (b) Notwithstanding anything to the contrary contained herein, Spansion and its

	2210	  	Subsidiaries shall constitute Unrestricted Subsidiaries on and after the Issue Date (unless
	2211	  	redesignated as Restricted Subsidiaries by the Company after the Issue Date in accordance with
	2212	  	this covenant), and their designation as Unrestricted Subsidiaries (made pursuant to the
	2213	  	definition thereof contained herein) shall not be required to meet any of the tests described in the
	2214	  	first paragraph of this covenant and shall not constitute a Restricted Payment hereunder.
		
	2215	  	 (c) Except as provided in Section 4.15(a) and Section 4.15(b), no Restricted

	2216	  	Subsidiary may be redesignated as an Unrestricted Subsidiary, and neither the Company nor any
	2217	  	Restricted Subsidiary shall at any time be directly or indirectly liable for any Debt (other than
	2218	  	Debt pursuant to this Indenture) that provides that the holder thereof may (with the passage of
	2219	  	time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or
	2220	  	payable prior to its Stated Maturity upon the occurrence of a default with respect to any Debt,
	2221	  	Lien or other obligation of any Unrestricted Subsidiary other than Spansion and its Subsidiaries

  

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	2222	  	(including any right to take enforcement action against any such Unrestricted Subsidiary (other
	2223	  	than Spansion and its Subsidiaries)).
		
	2224	  	 (d) The Board of Directors may designate any Unrestricted Subsidiary to be a

	2225	  	Restricted Subsidiary if, immediately after giving pro forma effect to such designation,
		
	2226	  	 (x) the Company could Incur at least $1.00 of additional Debt pursuant to

	2227	  	 Section 4.09(a)(1), and

		
	2228	  	 (y) no Default or Event of Default shall have occurred and be continuing or

	2229	  	 would result therefrom.

		
	2230	  	 (e) Any such designation or redesignation by the Board of Directors will be

	2231	  	evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors giving
	2232	  	effect to such designation or redesignation and an Officers’ Certificate that:
		
	2233	  	 (1) certifies that such designation or redesignation complies with this Section

	2234	  	 4.15; and

		
	2235	  	 (2) gives the effective date of such designation or redesignation,

		
	2236	  	such filing with the Trustee to occur within 60 days after the end of the fiscal quarter of the
	2237	  	Company in which such designation or redesignation is made (or, in the case of a designation or
	2238	  	redesignation made during the last fiscal quarter of the Company’s fiscal year, within 90 days
	2239	  	after the end of such fiscal year).
		
	2240	  	 SECTION 4.16. Reports.

		
	2241	  	 Following the consummation of the Exchange Offer contemplated by the Registration

	2242	  	Rights Agreement, whether or not the Company is then subject to Section 13(a) or 15(d) of the
	2243	  	Exchange Act, the Company will electronically file with the Commission, so long as the Notes
	2244	  	are outstanding, the annual reports, quarterly reports and other reports that it would be required
	2245	  	to file with the Commission pursuant to such Section 13(a) or 15(d) if the Company were so
	2246	  	subject, and such documents will be filed with the Commission on or prior to the respective dates
	2247	  	below (the “Required Filing Dates”) by which the Company would be required so to file such
	2248	  	documents if it were so subject, unless, in any case, such filings are not then permitted by the
	2249	  	Commission. In any event, the Company will file:
		
	2250	  	 (a) within 90 days after the end of each fiscal year (or such shorter period as

	2251	  	 the Commission may in the future prescribe), annual reports on Form 10-K, (or any

	2252	  	 successor form) containing the information required to be contained therein (or required

	2253	  	 in such successor form); provided, however, in any event, such reports shall include

	2254	  	 audited year-end consolidated financial statements (including a balance sheet, income


  

 -62- 









			
	2255	  	 statement, statement of changes of cash flow and a footnote with consolidating

	2256	  	 condensed financial information, if necessary) prepared in accordance with GAAP;

		
	2257	  	 (b) within 45 days after the end of each of the first three fiscal quarters (or

	2258	  	 such shorter period as the Commission may in the future prescribe) of each fiscal year,

	2259	  	 reports on Form 10-Q (or any successor form); provided, however, in any event, such

	2260	  	 reports shall include unaudited quarterly consolidated financial statements (including a

	2261	  	 balance sheet, income statement, statement of changes of cash flows and a footnote with

	2262	  	 consolidating condensed financial information, if necessary) prepared in accordance with

	2263	  	 GAAP; and

		
	2264	  	 (c) promptly from time to time after the occurrence of an event with respect to

	2265	  	 which the Company is required to file other reports on Form 8-K (or any successor or

	2266	  	 comparable form), reports containing the information required to be contained therein (or

	2267	  	 required in any successor or comparable form); and

		
	2268	  	in the case of clauses (a) and (b) above, regardless of applicable requirements, shall, at a
	2269	  	minimum, contain a “Management’s Discussion and Analysis of Financial Condition and Results
	2270	  	of Operations” that describes the Company’s consolidated financial condition and results of
	2271	  	operations. In addition, all financial statements, regardless of applicable requirements will, at a
	2272	  	minimum, contain such information required to be provided in quarterly reports to security
	2273	  	holders of a company with securities listed on The New York Stock Exchange.
		
	2274	  	 If such filings with the Commission are not then permitted by the Commission, or such

	2275	  	filings are not yet required in accordance with the above paragraph or are not generally available
	2276	  	on the Internet free of charge, the Company will, without charge to the Holders, within 15 days
	2277	  	of each Required Filing Date, transmit by mail to Holders, as their names and addresses appear
	2278	  	in the Note register, and file with the Trustee copies of the annual reports, quarterly reports and
	2279	  	other periodic reports that the Company would be required to file with the Commission pursuant
	2280	  	to Section 13(a) or 15(d) of the Exchange Act if it were subject to such Section 13(a) or 15(d)
	2281	  	and, promptly upon written request, supply copies of such documents to any prospective holder
	2282	  	or beneficial owner at the Company’s cost.
		
	2283	  	 So long as any of the Notes remain restricted under Rule 144, the Company will make

	2284	  	available upon request to any prospective purchaser of Notes or beneficial owner of Notes in
	2285	  	connection with any sale thereof the information required by Rule 144A(d)(4) under the
	2286	  	Securities Act.
		
	2287	  	 Delivery of such reports, information and documents to the Trustee is for informational

	2288	  	purposes only, and the Trustee’s receipt of such reports shall not constitute constructive notice of
	2289	  	any information contained therein or determinable from information contained therein, including
	2290	  	the Company’s compliance with any of its covenants hereunder (as to which the Trustee is
	2291	  	entitled to rely exclusively on Officers’ Certificates).

  

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	2292	  	 SECTION 4.17. Covenant Suspension.

		
	2293	  	 (a) During any period of time that:

		
	2294	  	 (1) the Notes have Investment Grade Ratings from both Rating Agencies; and

		
	2295	  	 (2) no Default or Event of Default has occurred and is continuing,

		
	2296	  	the Company and the Restricted Subsidiaries will not be subject to any of Sections 4.08, 4.09,
	2297	  	4.10, 4.12, 4.13 and 4.14, clauses (1) and (2) of Section 4.15(a), clause (x) of Section 4.15(d) and
	2298	  	clause (4) of Section 5.01(a) (collectively, the “Suspended Covenants”).
		
	2299	  	 (b) In the event that the Company and the Restricted Subsidiaries are not subject to

	2300	  	the Suspended Covenants for any period of time pursuant to Section 4.17(a) and, subsequently,
	2301	  	one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to
	2302	  	the Notes below the required Investment Grade Ratings or a Default or Event of Default occurs
	2303	  	and is continuing, then the Company and the Restricted Subsidiaries will thereafter again be
	2304	  	subject to the Suspended Covenants and compliance with the Suspended Covenants with respect
	2305	  	to Restricted Payments made after the time of such withdrawal, downgrade, Default or Event of
	2306	  	Default will be calculated in accordance Section 4.10 as though such covenant had been in effect
	2307	  	during the entire period of time from the Issue Date.
		
	2308	  	 SECTION 4.18. Payment for Consents.

		
	2309	  	 The Company shall not, and shall not permit any of its Subsidiaries to, directly or

	2310	  	indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or
	2311	  	otherwise, to any Holder of any Notes for or as an inducement to any consent, waiver or
	2312	  	amendment of any of the terms or provisions of this Indenture or the Notes unless such
	2313	  	consideration is offered to be paid or is paid to all Holders of the Notes that consent, waive or
	2314	  	agree to amend in the time frame set forth in the solicitation documents relating to such consent,
	2315	  	waiver or agreement.
		
	2316	  	                                       
                         ARTICLE FIVE
	2317	  	 
	2318	  	                                       
             SUCCESSOR CORPORATION
		
	2319	  	 SECTION 5.01. Merger, Consolidation and Sale of Property.

		
	2320	  	 (a) The Company shall not merge or consolidate with or into any other Person (other

	2321	  	than a merger of a Wholly Owned Restricted Subsidiary and the Company) or sell, transfer,
	2322	  	assign, lease, convey or otherwise dispose of all or substantially all its Property (other than sales,
	2323	  	transfers, assignments, leases, conveyances or dispositions to a Wholly Owned Restricted
	2324	  	Subsidiary) in any one transaction or series of transactions unless:

  

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	2325	  	 (1) the Company shall be the surviving Person (the “Surviving Person”) in

	2326	  	 such merger or consolidation, or the Surviving Person (if other than the Company)

	2327	  	 formed by such merger or consolidation or to which such sale, transfer, assignment,

	2328	  	 lease, conveyance or disposition is made shall be a corporation organized and existing

	2329	  	 under the laws of the United States of America, any State thereof or the District of

	2330	  	 Columbia;

		
	2331	  	 (2) the Surviving Person (if other than the Company) expressly assumes, by

	2332	  	 supplemental indenture in form reasonably satisfactory to the Trustee, executed and

	2333	  	 delivered to the Trustee by such Surviving Person, the due and punctual payment of the

	2334	  	 principal of, and premium, if any, and interest on, all the Notes, according to their tenor,

	2335	  	 and the due and punctual performance and observance of all the covenants and conditions

	2336	  	 of the Indenture to be performed by the Company;

		
	2337	  	 (3) immediately before and after giving effect to such transaction or series of

	2338	  	 transactions on a pro forma basis (and treating, for purposes of this Section 5.01(a)(3)

	2339	  	 and Section 5.01(a)(4) below, any Debt that becomes, or is anticipated to become, an

	2340	  	 obligation of the Surviving Person or any Restricted Subsidiary as a result of such

	2341	  	 transaction or series of transactions as having been Incurred by the Surviving Person or

	2342	  	 such Restricted Subsidiary at the time of such transaction or series of transactions), no

	2343	  	 Default or Event of Default shall have occurred and be continuing;

		
	2344	  	 (4) immediately after giving effect to such transaction or series of transactions

	2345	  	 on a pro forma basis, (x) the Company or the Surviving Person, as the case may be,

	2346	  	 would be able to Incur at least $1.00 of additional Debt under Section 4.09(a)(1), or (y)

	2347	  	 the Consolidated Fixed Charge Coverage Ratio for the Company or the Surviving Person

	2348	  	 would be greater than such ratio immediately prior to such transaction or series of

	2349	  	 transactions; and

		
	2350	  	 (5) the Company shall deliver, or cause to be delivered, to the Trustee, in form

	2351	  	 and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an

	2352	  	 Opinion of Counsel, each stating that such transaction or series of transactions and the

	2353	  	 supplemental indenture, if any, in respect thereto comply with this covenant and that all

	2354	  	 conditions precedent herein provided for relating to such transaction or series of

	2355	  	 transactions have been satisfied.

		
	2356	  	 (b) The Surviving Person shall succeed to, and be substituted for, and may exercise

	2357	  	every right and power of the Company under the Indenture; provided that the predecessor
	2358	  	company in the case of:
		
	2359	  	 (1) a sale, transfer, assignment, conveyance or other disposition of all or

	2360	  	 substantially all of its Property (unless such sale, transfer, assignment, conveyance or


  

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	2361	  	 other disposition is of all the Property of the Company as an entirety or virtually as an

	2362	  	 entirety), or

		
	2363	  	 (2) a lease,

		
	2364	  	shall not be released from any of the obligations or covenants under the Indenture, including with
	2365	  	respect to the payment of the Notes.
		
	2366	  	                         ARTICLE
SIX

	2367	  	 
	2368	  	             DEFAULTS AND REMEDIES

		
	2369	  	 SECTION 6.01. Events of Default.

		
	2370	  	 The following events shall be “Events of Default”:

		
	2371	  	 (1) the Company defaults in any payment of interest on any Note when the

	2372	  	 same becomes due and payable and such default continues for a period of 30 days;

		
	2373	  	 (2) the Company defaults in the payment of the principal or premium amount

	2374	  	 of any Note when the same becomes due and payable at its Stated Maturity, upon

	2375	  	 acceleration, redemption, optional redemption, required repurchase or otherwise;

		
	2376	  	 (3) a breach of Section 5.01;

		
	2377	  	 (4) a breach of any covenant or agreement in the Notes or in this Indenture

	2378	  	 (other than a failure that is the subject of the foregoing Section 6.01(1), (2) or (3)) and

	2379	  	 such failure continues for 45 days after written notice demanding that such default be

	2380	  	 remedied is given to the Company as specified in this Section 6.01;

		
	2381	  	 (5) a default by the Company or any Restricted Subsidiary under any Debt of

	2382	  	 the Company or any Restricted Subsidiary that results in acceleration of the final stated

	2383	  	 maturity of such Debt, or the failure to pay any such Debt at final stated maturity (giving

	2384	  	 effect to any applicable grace periods and any extensions thereof), in an aggregate

	2385	  	 principal amount in excess of $50 million (or its foreign equivalent at the time);

		
	2386	  	 (6) any judgment or judgments for the payment of money in an aggregate

	2387	  	 amount in excess of $50 million (or its foreign equivalent at the time) shall be rendered

	2388	  	 against the Company or any Significant Subsidiary and shall not be waived, satisfied or

	2389	  	 discharged for any period of 60 consecutive days during which a stay of enforcement

	2390	  	 shall not be in effect;

		
	2391	  	 (7) the Company or any Significant Subsidiary pursuant to or within the

	2392	  	 meaning of any Bankruptcy Law:


  

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	2393	  	 (A) commences a voluntary insolvency proceeding or gives notice of

	2394	  	 intention to make a proposal under any Bankruptcy Law;

		
	2395	  	 (B) consents to the entry of an order for relief against it in an

	2396	  	 involuntary insolvency proceeding or consents to its dissolution or winding-up;

		
	2397	  	 (C) consents to the appointment of a Custodian of it or for any

	2398	  	 substantial part of its property; or

		
	2399	  	 (D) makes a general assignment for the benefit of its creditors;

		
	2400	  	 or takes any comparable action under any foreign laws relating to insolvency; provided,

	2401	  	 however, that the liquidation of any Restricted Subsidiary into the Company or another

	2402	  	 Restricted Subsidiary, other than as part of a credit reorganization, shall not constitute an

	2403	  	 Event of Default under this Section 6.01(7);

		
	2404	  	 (8) a court of competent jurisdiction enters an order or decree under any

	2405	  	 Bankruptcy Law that:

		
	2406	  	 (A) is for relief against any of the Company or any Significant

	2407	  	 Subsidiary in an involuntary insolvency proceeding;

		
	2408	  	 (B) appoints a Custodian of any of the Company or any Significant

	2409	  	 Subsidiary or for any substantial part of its property;

		
	2410	  	 (C) orders the winding up, liquidation or dissolution of any of the

	2411	  	 Company or any Significant Subsidiary;

		
	2412	  	 (D) orders the presentation of any plan or arrangement, compromise

	2413	  	 reorganization of any of the Company or any Significant Subsidiary; or

		
	2414	  	 (E) grants any similar relief under any Bankruptcy Law or foreign

	2415	  	 laws;

		
	2416	  	 and in each such case the order or decree remains unstayed and in effect for 90 days;

		
	2417	  	 The foregoing will constitute Events of Default whatever the reason for any such Event

	2418	  	of Default and whether it is voluntary or involuntary or is effected by operation of law or
	2419	  	pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
	2420	  	administrative or governmental body.
		
	2421	  	 A Default under Section 6.01(4) is not an Event of Default until the Trustee or the

	2422	  	Holders of at least 25% in aggregate principal amount at maturity of the Notes then outstanding
	2423	  	notify the Company (and in the case of such notice by Holders, the Trustee) of the Default and

  

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	2424	  	such Default is not cured within the time specified after receipt of such notice. Such notice must
	2425	  	specify the Default, demand that it be remedied and state that such notice is a “Notice of
	2426	  	Default.”
		
	2427	  	 The Company shall deliver to the Trustee, within 30 days after the occurrence thereof,

	2428	  	written notice in the form of an Officers’ Certificate of any Event of Default and any event that
	2429	  	with the giving of notice or the lapse of time would become an Event of Default, its status and
	2430	  	what action the Company is taking or proposes to take with respect thereto. The Company shall
	2431	  	immediately notify the Trustee if a meeting of the Board of Directors of the Company is
	2432	  	convened to consider any action mandated by a petition for debt settlement proceedings or
	2433	  	bankruptcy proceedings. The Company shall also promptly advise the Trustee of the approval of
	2434	  	the filing of a debt settlement or bankruptcy petition prior to the filing of such petition.
		
	2435	  	 SECTION 6.02. Acceleration of Maturity; Rescission.

		
	2436	  	 (a) If an Event of Default with respect to the Notes (other than an Event of Default

	2437	  	specified in Section 6.01(6) and (7) with respect to the Company) shall have occurred and be
	2438	  	continuing, the Trustee or the registered Holders of not less than 25% in aggregate principal
	2439	  	amount of the Notes then outstanding may declare the principal of and accrued interest on all the
	2440	  	Notes to be due and payable by notice in writing to the Company and the Trustee specifying the
	2441	  	applicable Event of Default and that it is a “notice of acceleration”, and the same shall become
	2442	  	immediately due and payable.
		
	2443	  	 (b) In case an Event of Default resulting from Section 6.01(6) and (7) with respect to

	2444	  	the Company shall occur, such amount with respect to all the Notes shall be due and payable
	2445	  	immediately without any declaration or other act on the part of the Trustee or the Holders of the
	2446	  	Notes. After any such acceleration, but before a judgment or decree based on acceleration is
	2447	  	obtained by the Trustee, the registered Holders of a majority in aggregate principal amount of the
	2448	  	Notes then outstanding may, under certain circumstances, rescind and annul such acceleration if
	2449	  	(i) the rescission would not conflict with any judgment or decree, (ii) all existing Events of
	2450	  	Default have been cured or waived except nonpayment of principal or interest that has become
	2451	  	due solely because of the acceleration, (iii) to the extent the payment of such interest is lawful,
	2452	  	interest on overdue installments of interest and overdue principal, which has become due
	2453	  	otherwise than by such declaration of acceleration, has been paid, (iv) the Company has paid the
	2454	  	Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements
	2455	  	and advances and all other amounts due to the Trustee under Section 7.07 and (v) in the event of
	2456	  	the cure or waiver of an Event of Default of the type described in either Section 6.01(6) or (7),
	2457	  	the Trustee shall have received an Officers’ Certificate to the effect that such Event of Default
	2458	  	has been cured or waived. No such rescission shall affect any subsequent Default or impair any
	2459	  	right consequent thereto.
		
	2460	  	 (c) In the event of a declaration of acceleration of the Notes because an Event of

	2461	  	Default described in Section 6.01(5) has occurred and is continuing, the declaration of

  

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	2462	  	acceleration of the Notes shall be automatically annulled if the payment Default or other Default
	2463	  	triggering such Event of Default pursuant to Section 6.01(5) shall be remedied or cured or
	2464	  	waived by the Holders of the relevant Debt within the grace period applicable to such Default
	2465	  	provided for in the documentation governing such Debt and if (1) the annulment of the
	2466	  	acceleration of the Notes would not conflict with any judgment or decree of a court of competent
	2467	  	jurisdiction, (2) all existing Events of Default, except nonpayment of principal, premium or
	2468	  	interest on the Notes that became due solely because of the acceleration of the Notes, have been
	2469	  	cured or waived and (3) all the other amounts due to the Trustee have been paid.
		
	2470	  	 (d) Subject to the provisions of Section 7.01, in case an Event of Default shall occur

	2471	  	and be continuing, the Trustee will be under no obligation to exercise any of its rights or powers
	2472	  	under this Indenture at the request or direction of any of the Holders of the Notes, unless such
	2473	  	Holders shall have offered to the Trustee reasonable indemnity. Subject to Section 7.07, the
	2474	  	Holders of a majority in aggregate principal amount of the Notes then outstanding will have the
	2475	  	right to direct the time, method and place of conducting any proceeding for any remedy available
	2476	  	to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes.
		
	2477	  	 No Holder of Notes will have any right to institute any proceeding with respect to this

	2478	  	Indenture, or for the appointment of a receiver or Trustee, or for any remedy thereunder, unless:
		
	2479	  	 (1) such Holder has previously given to the Trustee written notice of a

	2480	  	 continuing Event of Default;

		
	2481	  	 (2) the registered Holders of at least 25% in aggregate principal amount of the

	2482	  	 Notes then outstanding have made written request and offered reasonable indemnity to

	2483	  	 the Trustee to institute such proceeding as Trustee; and

		
	2484	  	 (3) the Trustee shall not have received from the registered Holders of a

	2485	  	 majority in aggregate principal amount of the Notes then outstanding a direction

	2486	  	 inconsistent with such request and shall have failed to institute such proceeding, within

	2487	  	 60 days after such notice, request and offer.

		
	2488	  	 However, such limitations do not apply to a suit instituted by a Holder of any Note for

	2489	  	enforcement of payment of the principal of, and premium, if any, or interest on, such Note on or
	2490	  	after the respective due dates expressed in such Note.
		
	2491	  	 SECTION 6.03. Other Remedies.

		
	2492	  	 If an Event of Default occurs and is continuing, the Trustee may pursue any available

	2493	  	remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if
	2494	  	any, and interest on the Notes or to enforce the performance of any provision of the Notes or this
	2495	  	Indenture and may take any necessary action requested of it as Trustee to settle, compromise,
	2496	  	adjust or otherwise conclude any proceedings to which it is a party.

  

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	2497	  	 The Trustee may maintain a proceeding even if it does not possess any of the Notes or

	2498	  	does not produce any of them in the proceeding. Any such proceeding instituted by the Trustee
	2499	  	may be brought in its own name and as trustee of an express trust, and any recovery of judgment
	2500	  	shall, after provisions for the payment of the reasonable compensation, expenses, disbursements
	2501	  	of the Trustee and its counsel, be for the ratable benefit of the Holders of the Notes in respect of
	2502	  	which such judgment has been recovered. A delay or omission by the Trustee or any Holder in
	2503	  	exercising any right or remedy accruing upon an Event of Default shall not impair the right or
	2504	  	remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is
	2505	  	exclusive of any other remedy. All available remedies are cumulative, to the extent permitted by
	2506	  	law. Any costs associated with actions taken by the Trustee under this Section 6.03 shall be
	2507	  	reimbursed to the Trustee by the Company.
		
	2508	  	 SECTION 6.04. Waiver of Past Defaults and Events of Default.

		
	2509	  	 Provided the Notes are not then due and payable by reason of a declaration of

	2510	  	acceleration, the Holders of a majority in principal amount of Notes at the time outstanding may
	2511	  	on behalf of the Holders of all the Notes waive any past Default with respect to such Notes and
	2512	  	its consequences by providing written notice thereof to the Company and the Trustee, except a
	2513	  	Default (1) in the payment of interest on or the principal of any Note or (2) in respect of a
	2514	  	covenant or provision hereof which under this Indenture cannot be modified or amended without
	2515	  	the consent of the Holder of each outstanding Note affected. In the case of any such waiver, the
	2516	  	Company, the Trustee and the Holders of the Notes will be restored to their former positions and
	2517	  	rights under this Indenture, respectively; provided that no such waiver shall extend to any
	2518	  	subsequent or other Default or impair any right consequent thereto.
		
	2519	  	 SECTION 6.05. Control by Majority.

		
	2520	  	 The Holders of at least a majority in aggregate principal amount of the outstanding Notes

	2521	  	may direct the time, method and place of conducting any proceeding for any remedy available to
	2522	  	the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may
	2523	  	refuse to follow any direction that conflicts with law or this Indenture, that may involve the
	2524	  	Trustee in personal liability, or that the Trustee determines in good faith may be unduly
	2525	  	prejudicial to the rights of Holders of the Notes not joining in the giving of such direction and
	2526	  	may take any other action it deems proper that is not inconsistent with any such direction
	2527	  	received from Holders of the Notes.
		
	2528	  	 SECTION 6.06. Limitation on Suits.

		
	2529	  	 No Holder of Notes will have any right to institute any proceeding with respect to this

	2530	  	Indenture, or for the appointment of a receiver or trustee, or for any remedy hereunder unless:
		
	2531	  	 (1) the Holder gives the Trustee written notice of a continuing Event of

	2532	  	 Default;


  

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	2533	  	 (2) the Holders of at least 25% in aggregate principal amount of outstanding

	2534	  	 Notes make a written request to the Trustee to institute such proceeding or to pursue such

	2535	  	 remedy as trustee;

		
	2536	  	 (3) such Holder or Holders offer the Trustee indemnity satisfactory to the

	2537	  	 Trustee against any costs, liability or expense;

		
	2538	  	 (4) the Trustee does not comply with the request within 60 days after receipt

	2539	  	 of the request and the offer of indemnity; and

		
	2540	  	 (5) during such 60-day period, the Holders of at least a majority in aggregate

	2541	  	 principal amount of the outstanding Notes do not give the Trustee a direction that is

	2542	  	 inconsistent with the request.

		
	2543	  	 However, such limitations do not apply to a suit instituted by a Holder of any Note for

	2544	  	enforcement of payment of the principal of, and premium, if any, or interest on, such Note on or
	2545	  	after the respective due date expressed in such Note.
		
	2546	  	 SECTION 6.07. No Personal Liability of Directors, Officers, Employees and

	2547	  	Stockholders.
		
	2548	  	 No director, officer, employee, incorporator or stockholder of the Company, as such, will

	2549	  	have any liability for any obligations of the Company under the Notes or the Indenture or for any
	2550	  	claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
	2551	  	Notes by accepting a Note waives and releases all such liability. The waiver and release are part
	2552	  	of the consideration for issuance of the Notes. The waiver may not be effective to waive
	2553	  	liabilities under federal securities laws.
		
	2554	  	 SECTION 6.08. Rights of Holders To Receive Payment.

		
	2555	  	 Notwithstanding any other provision of this Indenture, the right of any Holder of a Note

	2556	  	to receive payment of the principal of or premium, if any, or interest, if any, on such Note or to
	2557	  	bring suit for the enforcement of any such payment, on or after the due date expressed in the
	2558	  	Notes shall not be impaired or affected without the consent of the Holder.
		
	2559	  	 SECTION 6.09. Collection Suit by Trustee.

		
	2560	  	 If an Event of Default in payment of principal, premium or interest specified in Section

	2561	  	6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and
	2562	  	as trustee of an express trust against the Company (or any other obligor on the Notes) for the
	2563	  	whole amount of unpaid principal and accrued interest remaining unpaid.

  

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	2564	  	 SECTION 6.10. Trustee May File Proofs of Claim.

		
	2565	  	 The Trustee may file such proofs of claim and other papers or documents as may be

	2566	  	necessary or advisable in order to have the claims of the Trustee (including any claim for the
	2567	  	reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
	2568	  	counsel, and any other amounts due the Trustee under Section 7.07) and the Holders allowed in
	2569	  	any judicial proceedings relative to the Company (or any other obligor upon the Notes), its
	2570	  	creditors or its Property and, unless prohibited by law, shall be entitled and empowered to collect
	2571	  	and receive any monies or other Property payable or deliverable on any such claims and to
	2572	  	distribute the same after deduction of its charges and expenses to the extent that any such charges
	2573	  	and expenses are not paid out of the estate in any such proceedings and any custodian in any
	2574	  	such judicial proceeding is hereby authorized by each Holder to make such payments to the
	2575	  	Trustee, and in the event that the Trustee shall consent to the making of such payments directly
	2576	  	to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation,
	2577	  	expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
	2578	  	amounts due the Trustee under Section 7.07.
		
	2579	  	 Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent

	2580	  	to or accept or adopt on behalf of any Holder any plan or reorganization, arrangement,
	2581	  	adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize
	2582	  	the Trustee to vote in respect of the claim of any Holder in any such proceedings. All rights of
	2583	  	action and claims under this Indenture or the Notes may be prosecuted and enforced by the
	2584	  	Trustee without the possession of any of the Notes thereof in any proceeding relating thereto, and
	2585	  	any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
	2586	  	express trust, and any recovery of judgment shall, after provision for the payment of the reason-
	2587	  	able compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
	2588	  	be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
		
	2589	  	 SECTION 6.11. Priorities.

		
	2590	  	 If the Trustee collects any money pursuant to this Article Six, it shall pay out the money

	2591	  	in the following order:
		
	2592	  	 FIRST: to the Trustee for amounts due under Section 7.07;

		
	2593	  	 SECOND: to Holders for amounts due and unpaid on the Notes for principal,

	2594	  	 premium, if any, and interest (including Additional Interest, if any) as to each, ratably,

	2595	  	 without preference or priority of any kind, according to the amounts due and payable on

	2596	  	 the Notes; and

		
	2597	  	 THIRD: to the Company.


  

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	2598	  	 The Trustee may fix a record date and payment date for any payment to Holders pursuant

	2599	  	to this Section 6.11.
		
	2600	  	 SECTION 6.12. Undertaking for Costs.

		
	2601	  	 In any suit for the enforcement of any right or remedy under this Indenture or in any suit

	2602	  	against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
	2603	  	require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit,
	2604	  	and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees
	2605	  	and expenses, against any party litigant in the suit, having due regard to the merits and good faith
	2606	  	of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit by
	2607	  	the Trustee, a suit by a Holder pursuant to Section 6.08 or a suit by Holders of more than 10% in
	2608	  	principal amount of the Notes then outstanding.
		
	2609	  	                         ARTICLE SEVEN

	2610	  	 
	2611	  	                                 TRUSTEE

		
	2612	  	 SECTION 7.01. Duties of Trustee.

		
	2613	  	 (a) If an Event of Default actually known to a Responsible Officer of the Trustee has

	2614	  	occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it
	2615	  	by this Indenture and use the same degree of care and skill in their exercise as a prudent person
	2616	  	would exercise or use under the circumstances in the conduct of such Person’s own affairs.
		
	2617	  	 (b) Except during the continuance of an Event of Default:

		
	2618	  	 (1) The Trustee need perform only such duties as are specifically set forth in

	2619	  	 this Indenture.

		
	2620	  	 (2) In the absence of bad faith or willful misconduct on its part, the Trustee

	2621	  	 may conclusively rely, as to the truth of the statements and the correctness of the opinions

	2622	  	 expressed therein, upon certificates or opinions furnished to the Trustee and conforming

	2623	  	 to the requirements of this Indenture but, in the case of any such certificates or opinions

	2624	  	 which by any provision hereof are specifically required to be furnished to the Trustee, the

	2625	  	 Trustee shall be under a duty to examine the same to determine whether or not they

	2626	  	 conform on their face to the requirements of this Indenture (but need not confirm or

	2627	  	 investigate the accuracy of mathematical calculations or other facts stated therein).

	2628	  	 Whenever in the administration of this Indenture the Trustee shall deem it desirable that a

	2629	  	 matter be proved or established prior to taking, suffering or omitting any action

	2630	  	 hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in

	2631	  	 the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate,

	2632	  	 subject to the requirement in the preceding sentence, if applicable.


  

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	2633	  	 (c) The Trustee may not be relieved from liability for its own negligent action, its

	2634	  	own negligent failure to act, or its own willful misconduct, except that:
		
	2635	  	 (1) This paragraph does not limit the effect of Section 7.01(b).

		
	2636	  	 (2) The Trustee shall not be liable for any error of judgment made in good

	2637	  	 faith by a Responsible Officer or Responsible Officers of the Trustee, unless it is proved

	2638	  	 that the Trustee was negligent in ascertaining the pertinent facts.

		
	2639	  	 (3) The Trustee shall not be liable with respect to any action it takes or omits

	2640	  	 to take in good faith in accordance with a direction of the Holders of a majority in

	2641	  	 aggregate principal amount of the Notes received by it pursuant to the terms hereof.

		
	2642	  	 (4) No provision of this Indenture shall require the Trustee to expend or risk

	2643	  	 its own funds or otherwise incur any financial liability in the performance of any of its

	2644	  	 rights, powers or duties if it shall have reasonable grounds for believing that repayment

	2645	  	 of such funds or adequate indemnity satisfactory to it against such risk or liability is not

	2646	  	 reasonably assured to it.

		
	2647	  	 (d) Whether or not therein expressly so provided, Sections 7.01(a), (b), (c) and (e)

	2648	  	shall govern every provision of this Indenture that in any way relates to the Trustee.
		
	2649	  	 (e) The Trustee shall be under no obligation to exercise any of the rights or powers

	2650	  	vested in it by this Indenture at the request or direction of any of the Holders pursuant to this
	2651	  	Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfac-
	2652	  	tory to the Trustee against the costs, expenses and liabilities which might be incurred by it in
	2653	  	compliance with such request.
		
	2654	  	 (f) The Trustee shall not be liable for interest on any money received by it except as

	2655	  	the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not
	2656	  	be segregated from other funds except to the extent required by the law.
		
	2657	  	 SECTION 7.02. Rights of Trustee.

		
	2658	  	 Subject to Section 7.01:

		
	2659	  	 (a) The Trustee may conclusively rely on any document (whether in its

	2660	  	 original or facsimile form) reasonably believed by it to be genuine and to have been

	2661	  	 signed or presented by the proper person. The Trustee need not investigate any fact or

	2662	  	 matter stated in the document.

		
	2663	  	 (b) Before the Trustee acts or refrains from acting, it may request an Officers’

	2664	  	 Certificate or an Opinion of Counsel, or both, which shall conform to the provisions of


  

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	2665	  	 Section 10.05. The Trustee shall be protected and shall not be liable for any action it

	2666	  	 takes or omits to take in good faith in reliance on such certificate or opinion.

		
	2667	  	 (c) The Trustee may act through its attorneys and agents and shall not be

	2668	  	 responsible for the misconduct or negligence of any agent appointed by it with due care.

		
	2669	  	 (d) The Trustee shall not be liable for any action it takes or omits to take in

	2670	  	 good faith which it reasonably believes to be authorized or within its rights or powers;

	2671	  	 provided that the Trustee’s conduct does not constitute willful misconduct, negligence or

	2672	  	 bad faith.

		
	2673	  	 (e) The Trustee may consult with counsel of its selection, and the advice or

	2674	  	 opinion of such counsel with respect to legal matters relating to the Notes or this

	2675	  	 Indenture shall be full and complete authorization and protection from liability in respect

	2676	  	 of any action taken, omitted or suffered by it hereunder in good faith and in accordance

	2677	  	 with the advice or opinion of such counsel.

		
	2678	  	 (f) The rights, privileges, protections, immunities and benefits given to the

	2679	  	 Trustee, including, without limitation, its right to be indemnified, are extended to, and

	2680	  	 shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent,

	2681	  	 Custodian and other person employed to act hereunder.

		
	2682	  	 (g) The Trustee shall not be bound to make any investigation into the facts or

	2683	  	 matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,

	2684	  	 request, direction, consent, order, bond, debenture, note, other evidence of indebtedness

	2685	  	 or other paper or document, but the Trustee, in its discretion, may make such further

	2686	  	 inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee

	2687	  	 shall determine to make such further inquiry or investigation, it shall be entitled to

	2688	  	 examine the books records, and premises of the Company, personally or by agent or

	2689	  	 attorney at the sole cost of the Company and shall incur no liability or additional liability

	2690	  	 of any kind by reason of such inquiry or investigation.

		
	2691	  	 (h) The Trustee shall not be liable for any action taken, suffered, or omitted to

	2692	  	 be taken by it in good faith and reasonably believed by it to be authorized or within the

	2693	  	 discretion or rights or powers conferred upon it by this Indenture.

		
	2694	  	 (i) The Trustee shall not be deemed to have notice of any Default or Event of

	2695	  	 Default unless a Responsible Officer of the Trustee has actual knowledge thereof or

	2696	  	 unless written notice of any event which is in fact such a Default is received by the

	2697	  	 Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes

	2698	  	 and this Indenture.


  

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	2699	  	 (j) The Trustee may request that the Company deliver an Officers’ Certificate

	2700	  	 setting forth the names of individuals and/or titles of officers authorized at such time to

	2701	  	 take specified actions pursuant to this Indenture, which Officers’ Certificate may be

	2702	  	 signed by any person authorized to sign an Officers’ Certificate, including any person

	2703	  	 specified as so authorized in any such certificate previously delivered and not suspended.

		
	2704	  	 (k) The Trustee shall not be charged with knowledge of any Default or Event

	2705	  	 of Default with respect to the Notes, unless either (1) a Responsible Officer shall have

	2706	  	 actual knowledge of such Default or Event of Default or (2) written notice of such default

	2707	  	 or Event of Default shall have been given to the Trustee by the Company or by any

	2708	  	 Holder of the Notes; and

		
	2709	  	 (l) The permissive rights of the Trustee enumerated herein shall not be

	2710	  	 construed as duties.

		
	2711	  	 SECTION 7.03. Individual Rights of Trustee.

		
	2712	  	 The Trustee in its individual or any other capacity may become the owner or pledgee of

	2713	  	Notes and may make loans to, accept deposits from, perform services for or otherwise deal with
	2714	  	the Company, or any Affiliate thereof, with the same rights it would have if it were not Trustee.
	2715	  	Any Agent may do the same with like rights. The Trustee, however, shall be subject to
	2716	  	Sections 7.10 and 7.11.
		
	2717	  	 SECTION 7.04. Trustee’s Disclaimer.

		
	2718	  	 The Trustee shall not be responsible for and makes no representation as to the validity or

	2719	  	adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
	2720	  	proceeds from the sale of Notes or any money paid to the Company pursuant to the terms of this
	2721	  	Indenture and it shall not be responsible for any statement in the Notes or this Indenture other
	2722	  	than its certificate of authentication, except that the Trustee represents that it is duly authorized
	2723	  	to execute and deliver this Indenture, authenticate the Notes and perform its obligations
	2724	  	hereunder and that the statements made by it in any Statement of Eligibility and Qualification on
	2725	  	Form T-1 to be supplied to the Company will be true and accurate subject to the qualifications
	2726	  	set forth therein.
		
	2727	  	 SECTION 7.05. Notice of Defaults.

		
	2728	  	 If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall

	2729	  	give to each Holder a notice of the Default within 90 days after it occurs in the manner and to the
	2730	  	extent provided in the TIA and otherwise as provided in this Indenture. Except in the case of a
	2731	  	Default in payment of the principal of or interest on any Note (including payments pursuant to a
	2732	  	redemption or repurchase of the Notes pursuant to the provisions of this Indenture), the Trustee

  

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	2733	  	may withhold the notice if and so long as a committee of its Responsible Officers in good faith
	2734	  	determines that withholding the notice is in the interests of Holders.
		
	2735	  	 SECTION 7.06. Reports by Trustee to Holders.

		
	2736	  	 If required by TIA § 313(a), within 60 days after May 15 of any year, commencing 2005,

	2737	  	the Trustee shall mail to each Holder a brief report dated as of such date that complies with TIA
	2738	  	§ 313(a). The Trustee also shall comply with TIA § 313(b)(2). The Trustee shall also transmit
	2739	  	by mail all reports as required by TIA § 313(c) and TIA § 313(d).
		
	2740	  	 Reports pursuant to this Section 7.06 shall be transmitted by mail:

		
	2741	  	 (1) to all Holders of Notes, as the names and addresses of such Holders appear

	2742	  	 on the Registrar’s books; and

		
	2743	  	 (2) to such Holders of Notes as have, within the two years preceding such

	2744	  	 transmission, filed their names and addresses with the Trustee for that purpose.

		
	2745	  	 A copy of each report at the time of its mailing to Holders shall be filed with the

	2746	  	Commission and each stock exchange on which the Notes are listed. The Company shall
	2747	  	promptly notify the Trustee when the Notes are listed on any stock exchange or delisted
	2748	  	therefrom.
		
	2749	  	 SECTION 7.07. Compensation and Indemnity.

		
	2750	  	 The Company shall pay to the Trustee and Agents from time to time such compensation

	2751	  	for their services hereunder (which compensation shall not be limited by any provision of law in
	2752	  	regard to the compensation of a trustee of an express trust) as shall be agreed upon in writing.
	2753	  	The Company shall reimburse the Trustee and Agents upon request for all reasonable
	2754	  	disbursements, expenses and advances incurred or made by them in connection with the
	2755	  	Trustee’s duties under this Indenture, including the reasonable compensation, disbursements and
	2756	  	expenses of the Trustee’s agents and external counsel, except any expense disbursement or
	2757	  	advance as may be attributable to its willful misconduct, negligence or bad faith.
		
	2758	  	 The Company shall fully indemnify each of the Trustee, Agent and any predecessor

	2759	  	Trustee for, and hold each of them harmless against, any and all loss, damage, claim, liability or
	2760	  	expense, including without limitation taxes (other than taxes based on the income of the Trustee
	2761	  	or such Agent) and reasonable attorneys’ fees and expenses incurred by each of them in
	2762	  	connection with the acceptance or performance of its duties under this Indenture including the
	2763	  	reasonable costs and expenses of defending itself against any claim or liability in connection
	2764	  	with the exercise or performance of any of its powers or duties hereunder (including, without
	2765	  	limitation, settlement costs). The Trustee or Agent shall notify the Company in writing promptly
	2766	  	of any claim (a “Claim”) of which a Responsible Officer of the Trustee has actual knowledge

  

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	2767	  	asserted against the Trustee or Agent for which it may seek indemnity; provided that the failure
	2768	  	by the Trustee or Agent to so notify the Company shall not relieve the Company of its
	2769	  	obligations hereunder except to the extent the Company is actually prejudiced thereby. In the
	2770	  	event that a conflict of interest exists, the Trustee may have separate counsel, which counsel
	2771	  	must be reasonably acceptable to the Company and the Company shall pay the reasonable fees
	2772	  	and expenses of such counsel.
		
	2773	  	 Notwithstanding the foregoing, the Company need not reimburse the Trustee for any

	2774	  	expense or indemnify it against any loss or liability to have been incurred by the Trustee through
	2775	  	its own willful misconduct, negligence or bad faith.
		
	2776	  	 To secure the payment obligations of the Company in this Section 7.07, the Trustee shall

	2777	  	have a lien prior to the Notes on all money or Property held or collected by the Trustee and such
	2778	  	money or Property held in trust to pay principal of and interest on particular Notes.
		
	2779	  	 The obligations of the Company under this Section 7.07 to compensate and indemnify the

	2780	  	Trustee, Agents and each predecessor Trustee and to pay or reimburse the Trustee, Agents and
	2781	  	each predecessor Trustee for expenses, disbursements and advances shall be the liability of the
	2782	  	Company and shall survive the resignation or removal of the Trustee and the satisfaction,
	2783	  	discharge or other termination of this Indenture, including any termination or rejection hereof
	2784	  	under any Bankruptcy Law.
		
	2785	  	 When the Trustee incurs expenses or renders services after an Event of Default specified

	2786	  	in Section 6.01(6) or (7) occurs, the expenses and the compensation for the services are intended
	2787	  	to constitute expenses of administration under any Bankruptcy Law.
		
	2788	  	 For purposes of this Section 7.07, the term “Trustee” shall include any trustee appointed

	2789	  	pursuant to this Article Seven.
		
	2790	  	 SECTION 7.08. Replacement of Trustee.

		
	2791	  	 The Trustee shall comply with Section 313(b) of the TIA, to the extent applicable.

		
	2792	  	 The Trustee may resign by so notifying the Company in writing no later than 15 Business

	2793	  	Days prior to the date of the proposed resignation. The Holders of a majority in principal
	2794	  	amount of the outstanding Notes may remove the Trustee by notifying the Company and the
	2795	  	removed Trustee in writing and may appoint a successor Trustee with the Company’s written
	2796	  	consent, which consent shall not be unreasonably withheld. The Company may remove the
	2797	  	Trustee at its election if:
		
	2798	  	 (a) the Trustee fails to comply with Section 7.10 or Section 310 of the TIA;


  

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	2799	  	 (b) the Trustee is adjudged bankrupt or insolvent or an order for relief is

	2800	  	 entered with respect to the Trustee under Bankruptcy Law;

		
	2801	  	 (c) a receiver or other public officer takes charge of the Trustee or its

	2802	  	 Property; or

		
	2803	  	 (d) the Trustee otherwise becomes incapable of acting.

		
	2804	  	 If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any

	2805	  	reason, the Company shall promptly appoint a successor Trustee.
		
	2806	  	 If a successor Trustee does not take office within 60 days after the retiring Trustee

	2807	  	resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal
	2808	  	amount of the outstanding Notes may petition at the expense of the Company any court of
	2809	  	competent jurisdiction for the appointment of a successor Trustee.
		
	2810	  	 If the Trustee fails to comply with Section 7.10, any Holder may petition any court of

	2811	  	competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
		
	2812	  	 A successor Trustee shall deliver a written acceptance of its appointment to the retiring

	2813	  	Trustee and to the Company. Immediately following such delivery, the retiring Trustee shall,
	2814	  	subject to its rights under Section 7.07, transfer all Property held by it as Trustee to the successor
	2815	  	Trustee, the resignation or removal of the retiring Trustee shall become effective, and the
	2816	  	successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.
	2817	  	A successor Trustee shall mail notice of its succession to each Holder. Notwithstanding
	2818	  	replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under
	2819	  	Section 7.07 shall continue for the benefit of the retiring Trustee.
		
	2820	  	 SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.

		
	2821	  	 If the Trustee consolidates with, merges or converts into, or transfers all or substantially

	2822	  	all of its corporate trust assets to, another corporation, subject to Section 7.10, the successor
	2823	  	corporation without any further act shall be the successor Trustee; provided such entity shall be
	2824	  	otherwise qualified and eligible under this Article Seven.
		
	2825	  	 SECTION 7.10. Eligibility; Disqualification.

		
	2826	  	 This Indenture shall always have a Trustee who satisfies the requirements of TIA

	2827	  	§ 310(a)(1), (2) and (5) in every respect. The Trustee (together with its corporate parent) shall
	2828	  	have a combined capital and surplus of at least $50 million as set forth in the most recent appli-
	2829	  	cable published annual report of condition. The Trustee shall comply with TIA § 310(b),
	2830	  	including the provision in § 310(b)(1).

  

 -79- 









			
	2831	  	 SECTION 7.11. Preferential Collection of Claims Against Company.

		
	2832	  	 The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in

	2833	  	TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to
	2834	  	the extent indicated therein.
		
	2835	  	 SECTION 7.12. Paying Agents.

		
	2836	  	 The Company shall cause each Paying Agent other than the Trustee to execute and

	2837	  	deliver to it and the Trustee an instrument in which such agent shall agree with the Trustee,
	2838	  	subject to the provisions of this Section 7.12:
		
	2839	  	 (A)

		
	2840	  	 (1) that it will hold all sums held by it as agent for the payment of

	2841	  	 principal of, or premium, if any, or interest on, the Notes (whether such sums

	2842	  	 have been paid to it by the Company or by any obligor on the Notes) in trust for

	2843	  	 the benefit of Holders of the Notes or the Trustee;

		
	2844	  	 (2) that it will at any time during the continuance of any Event of

	2845	  	 Default, upon written request from the Trustee, deliver to the Trustee all sums so

	2846	  	 held in trust by it together with a full accounting thereof; and

		
	2847	  	 (3) that it will give the Trustee written notice within three (3) Business

	2848	  	 Days of any failure of the Company (or by any obligor on the Notes) in the

	2849	  	 payment of any installment of the principal of, premium, if any, or interest on, the

	2850	  	 Notes when the same shall be due and payable.

		
	2851	  	 (B) The Paying Agent shall comply with all U.S. withholding tax, backup

	2852	  	 withholding tax and information reporting requirements under the U.S. Internal Revenue

	2853	  	 Code of 1986, as amended, and the Treasury Regulations issued thereunder, with respect

	2854	  	 to any payments under the Notes or hereunder (including the collection of U.S. Internal

	2855	  	 Revenue Service Forms W-8 and W-9 and the filing of U.S. Internal Revenue Service

	2856	  	 Forms 1042, 1042-S and 1099.


  

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	2857	  	ARTICLE EIGHT
	2858	  	 
	2859	  	MODIFICATION AND WAIVER
		
	2860	  	 SECTION 8.01. Without Consent of Holders.

		
	2861	  	 Without the consent of any Holder of the Notes, the Company and the Trustee may

	2862	  	amend this Indenture to:
		
	2863	  	 (a) cure any ambiguity, omission, defect or inconsistency in any manner that

	2864	  	 is not adverse in any material respect to any Holder of the Notes;

		
	2865	  	 (b) provide for the assumption by a Surviving Person of the obligations of the

	2866	  	 Company under this Indenture;

		
	2867	  	 (c) provide for uncertificated Notes in addition to or in place of certificated

	2868	  	 Notes (provided that the uncertificated Notes are issued in registered form for purposes of

	2869	  	 Section 163(f) of the Code, or in a manner such that the uncertificated Notes are

	2870	  	 described in Section 163(f)(2)(B) of the Code);

		
	2871	  	 (d) add Guarantees with respect to the Notes;

		
	2872	  	 (e) secure the Notes;

		
	2873	  	 (f) add to the covenants of the Company for the benefit of the Holders of the

	2874	  	 Notes or to surrender any right or power conferred upon the Company;

		
	2875	  	 (g) make any change that does not adversely affect the rights of any Holder of

	2876	  	 the Notes;

		
	2877	  	 (h) comply with any requirement of the Commission in connection with the

	2878	  	 qualification of this Indenture under the TIA;

		
	2879	  	 (i) provide for the issuance of Additional Notes in accordance with this

	2880	  	 Indenture, including the issuance of Additional Notes as restricted securities under the

	2881	  	 Securities Act and substantially identical Additional Notes pursuant to an Exchange Offer

	2882	  	 registered with the Commission; or

		
	2883	  	 (j) evidence and provide the acceptance of the appointment of a successor

	2884	  	 Trustee under this Indenture.


  

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	2885	  	 SECTION 8.02. With Consent of Holders.

		
	2886	  	 (a) This Indenture may be amended by the Company and the Trustee with the consent

	2887	  	of the registered Holders of a majority in aggregate principal amount of the Notes then
	2888	  	outstanding (including consents obtained in connection with a tender offer or exchange offer for
	2889	  	the Notes) and any past default or compliance with any provisions may also be waived (except a
	2890	  	default in the payment of principal, premium or interest and under 8.02(b) below) with the
	2891	  	consent of the registered Holders of at least a majority in aggregate principal amount of the
	2892	  	Notes then outstanding.
		
	2893	  	 (b) However, without the consent of each Holder of an outstanding Note, no

	2894	  	amendment may,
		
	2895	  	 (1) reduce the amount of Notes whose Holders must consent to an

	2896	  	 amendment, supplement or waiver,

		
	2897	  	 (2) reduce the rate of, or change the time for, payment of interest on any Note,

		
	2898	  	 (3) reduce the principal of, or extend the Stated Maturity of, any Note,

		
	2899	  	 (4) make any Note payable in money other than that stated in the Note,

		
	2900	  	 (5) impair the right of any Holder of the Notes to receive payment of principal

	2901	  	 of and interest on such Holder’s Notes on or after the due dates therefor or to institute suit

	2902	  	 for the enforcement of any payment on or with respect to such Holder’s Notes,

		
	2903	  	 (6) release any security interest that may have been granted in favor of the

	2904	  	 Holders of the Notes other than pursuant to the terms of such security interest,

		
	2905	  	 (7) subordinate the Notes to any other Obligation of the Company,

		
	2906	  	 (8) reduce the redemption price, including any premium payable under

	2907	  	 paragraph 5 of the Notes or change the time at which any Note may be redeemed,

		
	2908	  	 (9) reduce the premium payable upon a Change of Control or, at any time

	2909	  	 after a Change of Control has occurred, change the time at which the Change of Control

	2910	  	 Offer relating thereto must be made or at which the Notes must be repurchased pursuant

	2911	  	 to such Change of Control Offer; provided, that, prior to the occurrence of a Change of

	2912	  	 Control, the Holders of a majority in aggregate principal amount of the Notes then

	2913	  	 outstanding may waive the requirement to complete a Change of Control Offer, or

		
	2914	  	 (10) at any time after the Company is obligated to make a Prepayment Offer

	2915	  	 with the Excess Proceeds from Asset Sales, change the time at which such Prepayment

	2916	  	 Offer must be made or at which the Notes must be repurchased pursuant thereto.


  

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	2917	  	 (c) The consent of the Holders of the Notes shall not be necessary to approve the

	2918	  	particular form of any proposed amendment. It shall be sufficient if such consent approves the
	2919	  	substance of the proposed amendment.
		
	2920	  	 (d) After an amendment that requires the consent of the Holders of Notes becomes

	2921	  	effective, the Company is required to mail to each registered Holder of the Notes at such
	2922	  	Holder’s address appearing in the Note register a notice briefly describing such amendment.
	2923	  	However, the failure to give such notice to all Holders of the Notes, or any defect therein, shall
	2924	  	not impair or affect the validity of the amendment.
		
	2925	  	 (e) Upon the written request of the Company accompanied by a Board Resolution

	2926	  	authorizing the execution of any such supplemental indenture, and upon the receipt by the
	2927	  	Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders as afore-
	2928	  	said and upon receipt by the Trustee of the documents described in Section 8.06, the Trustee
	2929	  	shall join with the Company in the execution of such supplemental indenture unless such supple-
	2930	  	mental indenture affect the Trustee’s own rights, duties or immunities under this Indenture, in
	2931	  	which case the Trustee may, but shall not be obligated to, enter into such supplemental indenture.
		
	2932	  	 SECTION 8.03. Compliance with Trust Indenture Act.

		
	2933	  	 Every amendment or supplement to this Indenture or the Notes shall comply with the TIA

	2934	  	as then in effect.
		
	2935	  	 SECTION 8.04. Revocation and Effect of Consents.

		
	2936	  	 (a) After an amendment, supplement, waiver or other action becomes effective, a

	2937	  	consent to it by a Holder of a Note is a continuing consent conclusive and binding upon such
	2938	  	Holder and every subsequent Holder of the same Note or portion thereof, and of any Note issued
	2939	  	upon the transfer thereof or in exchange therefor or in place thereof, even if notation of the
	2940	  	consent is not made on any such Note.
		
	2941	  	 (b) The Company may, but shall not be obligated to, fix a record date for the purpose

	2942	  	of determining the Holders entitled to consent to any amendment, supplement, or waiver. If a
	2943	  	record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were
	2944	  	Holders at such record date (or their duly designated proxies), and only such Persons, shall be
	2945	  	entitled to consent to such amendment, supplement, or waiver or to revoke any consent
	2946	  	previously given, whether or not such Persons continue to be Holders after such record date. No
	2947	  	such consent shall be valid or effective for more than 90 days after such record date unless the
	2948	  	consent of the requisite number of Holders has been obtained.

  

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	2949	  	 SECTION 8.05. Notation on or Exchange of Notes.

		
	2950	  	 If an amendment, supplement or waiver changes the terms of a Note, the Trustee (in

	2951	  	accordance with the specific written direction of the Company) shall request the Holder of the
	2952	  	Note (in accordance with the specific written direction of the Company) to deliver it to the
	2953	  	Trustee. In such case, the Trustee shall place an appropriate notation on the Note about the
	2954	  	changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so deter-
	2955	  	mines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a
	2956	  	new Note that reflects the changed terms. Failure to make the appropriate notation or issue a
	2957	  	new Note shall not affect the validity and effect of such amendment, supplement or waiver.
		
	2958	  	 SECTION 8.06. Trustee To Sign Amendments, etc.

		
	2959	  	 The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this

	2960	  	Article Eight if the amendment, supplement or waiver does not affect the rights, duties, liabilities
	2961	  	or immunities of the Trustee. If it does affect the rights, duties, liabilities or immunities of the
	2962	  	Trustee, the Trustee may, but need not, sign such amendment, supplement or waiver. In signing
	2963	  	or refusing to sign such amendment, supplement or waiver the Trustee shall be entitled to receive
	2964	  	and, subject to Section 7.01, shall be fully protected in relying upon an Officers’ Certificate and
	2965	  	an Opinion of Counsel stating, in addition to the documents required by Section 10.04, that such
	2966	  	amendment, supplement or waiver is authorized or permitted by this Indenture and is a legal,
	2967	  	valid and binding obligation of the Company, enforceable against the Company in accordance
	2968	  	with its terms (subject to customary exceptions).
		
	2969	  	ARTICLE NINE
	2970	  	 
	2971	  	DISCHARGE OF INDENTURE; DEFEASANCE
		
	2972	  	 SECTION 9.01. Discharge of Liability on Notes; Defeasance.

		
	2973	  	 (a) This Indenture will be discharged and will cease to be of further effect as to all

	2974	  	Notes, issued hereunder when:
		
	2975	  	 (i) either (x) all Notes that have been authenticated, except lost, stolen

	2976	  	 or destroyed Notes that have been replaced or paid and Notes for whose payment

	2977	  	 money has been deposited in trust and thereafter repaid by the Company, have

	2978	  	 been delivered to the Trustee for cancellation, or (y) all Notes that have not been

	2979	  	 delivered to the Trustee for cancellation have become due and payable by reason

	2980	  	 of the mailing of a notice of redemption or otherwise or will become due and

	2981	  	 payable within one year, and the Company has irrevocably deposited or caused to

	2982	  	 be deposited with the Trustee as trust funds in trust solely for the benefit of the

	2983	  	 Holders, cash in U.S. dollars, U.S. Government Obligations, or a combination of

	2984	  	 cash in U.S. dollars and U.S. Government Obligations, in amounts as will be


  

 -84- 









			
	2985	  	 sufficient without consideration of any reinvestment of interest, to pay and

	2986	  	 discharge the entire indebtedness on the Notes not delivered to the Trustee for

	2987	  	 cancellation for principal, premium, if any, and accrued interest to the date of

	2988	  	 maturity or redemption;

		
	2989	  	 (ii) no Default or Event of Default has occurred and is continuing on

	2990	  	 the date of such deposit or will occur as a result of the deposit and the deposit will

	2991	  	 not result in a breach or violation of, or constitute a default under, any other

	2992	  	 instrument to which the Company is a party or by which the Company is bound;

		
	2993	  	 (iii) the Company has paid or caused to be paid all sums payable by

	2994	  	 them under this Indenture; and

		
	2995	  	 (iv) in the event of a deposit as provided in clause (i)(y) above, the

	2996	  	 Company has delivered irrevocable instructions to the Trustee to apply the

	2997	  	 deposited money toward the payment of the Notes at maturity or the Redemption

	2998	  	 Date, as the case may be.

		
	2999	  	 In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel

	3000	  	to the Trustee stating that all conditions precedent to satisfaction and discharge have been
	3001	  	satisfied.
		
	3002	  	 (b) Subject to Sections 9.01(e) and 9.02, the Company at any time may terminate all

	3003	  	of its obligations under the Notes and this Indenture (“Legal Defeasance”), including those
	3004	  	obligations under the TIA. The Company at any time may terminate (i) its obligations under
	3005	  	Section 4.08 through Section 4.17; (ii) Sections 6.01(5), (6), (7) and (8) (with respect only to the
	3006	  	Significant Subsidiaries in the case of Sections 6.01(7) and (8)); and (iii) Section 5.01(a)(4)
	3007	  	(“Covenant Defeasance”) and thereafter any omission to comply with any covenant referred to in
	3008	  	clause (i) or (iii) above will not constitute a Default or an Event of Default with respect to the
	3009	  	Notes.
		
	3010	  	 The Company may exercise its Legal Defeasance option notwithstanding its prior

	3011	  	exercise of its Covenant Defeasance option.
		
	3012	  	 (c) If the Company exercises its Legal Defeasance option, payment of the Notes may

	3013	  	not be accelerated because of an Event of Default with respect thereto. If the Company exercises
	3014	  	its Covenant Defeasance option, payment of the Notes may not be accelerated because of an
	3015	  	Event of Default specified in Section 6.01(3) (but only to the extent of an omission to comply
	3016	  	with clause (4) of Section 5.01(a)) or 6.01(4) (with respect to the covenants listed under Section
	3017	  	9.01(b)(i)), or Sections 6.01(5), (6), (7) and (8) (with respect only to Significant Subsidiaries in
	3018	  	the case of Sections 6.01(2) and (8)).

  

 -85- 









			
	3019	  	 (d) Upon satisfaction of the conditions set forth herein and upon request of the

	3020	  	Company, the Trustee shall acknowledge in writing the discharge of those obligations that the
	3021	  	Company terminates.
		
	3022	  	 (e) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections

	3023	  	2.02, 2.03, 2.04, 2.06, 2.07, 2.08, 2.18, 7.07, 9.03, 9.04, 9.05 and 9.06 shall survive until such
	3024	  	time as the Notes have been paid in full. Thereafter, the Company’s obligations in Sections 7.07,
	3025	  	9.03, 9.04, 9.05 and 9.06 shall survive.
		
	3026	  	 SECTION 9.02. Conditions to Defeasance.

		
	3027	  	 The Legal Defeasance option or the Covenant Defeasance option may be exercised only

	3028	  	if:
		
	3029	  	 (a) the Company irrevocably deposits in trust with the Trustee money or U.S.

	3030	  	Government Obligations, or a combination thereof, for the payment of principal of and interest
	3031	  	on the Notes to maturity or redemption, as the case may be;
		
	3032	  	 (b) the Company delivers to the Trustee a certificate from an internationally

	3033	  	recognized firm of independent certified public accountants expressing their opinion that the
	3034	  	payments of principal, premium, if any, and interest when due and without reinvestment on the
	3035	  	deposited U.S. Government Obligations plus any deposited money without investment will
	3036	  	provide cash at such times and in such amounts as will be sufficient to pay principal, premium, if
	3037	  	any, and interest when due on all the Notes to maturity or redemption, as the case may be;
		
	3038	  	 (c) 123 days pass after the deposit is made and during the 123-day period no Default

	3039	  	described in Section 6.01(7) and (8) occurs with respect to the Company or any other Person
	3040	  	making such deposit which is continuing at the end of the period;
		
	3041	  	 (d) no Default or Event of Default has occurred and is continuing on the date of such

	3042	  	deposit and after giving effect thereto;
		
	3043	  	 (e) such deposit does not constitute a default under any other material agreement or

	3044	  	instrument binding on the Company;
		
	3045	  	 (f) the Company delivers to the Trustee an Opinion of Counsel to the effect that the

	3046	  	trust resulting from the deposit does not constitute, or is qualified as, a regulated investment
	3047	  	company under the Investment Company Act of 1940;
		
	3048	  	 (g) in the case of the Legal Defeasance option, the Company delivers to the Trustee

	3049	  	an Opinion of Counsel stating that:
		
	3050	  	 (1) the Company has received from, or there has been published by, the

	3051	  	 Internal Revenue Service a ruling; or


  

 -86- 









			
	3052	  	 (2) since the date of this Indenture there has been a change in the applicable

	3053	  	 U.S. federal income tax law,

		
	3054	  	 to the effect, in either case, that, and based thereon such Opinion of Counsel shall

	3055	  	 confirm that, the beneficial owners of the Notes will not recognize income, gain or loss

	3056	  	 for U.S. federal income tax purposes as a result of such defeasance and will be subject to

	3057	  	 U.S. federal income tax on the same amounts, in the same manner and at the same times

	3058	  	 as would have been the case if such defeasance had not occurred;

		
	3059	  	 (h) in the case of the Covenant Defeasance option, the Company delivers to the

	3060	  	Trustee an Opinion of Counsel to the effect that the beneficial owners of the Notes will not
	3061	  	recognize income, gain or loss for U.S. federal income tax purposes as a result of such
	3062	  	defeasance and will be subject to U.S. federal income tax on the same amounts, in the same
	3063	  	manner and at the same times as would have been the case if such defeasance had not occurred;
	3064	  	and
		
	3065	  	 (i) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of

	3066	  	Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes
	3067	  	have been complied with as required by this Indenture.
		
	3068	  	 SECTION 9.03. Deposited Money and Government Obligations To Be Held in Trust;

	3069	  	Other Miscellaneous Provisions.
		
	3070	  	 All money and U.S. Government Obligations (including the proceeds thereof) deposited

	3071	  	with the Trustee pursuant to Section 9.02(a) in respect of the outstanding Notes shall be held in
	3072	  	trust and applied by the Trustee, in accordance with the provisions of such Notes and this
	3073	  	Indenture, to the payment, either directly or through any Paying Agent, to the Holders of such
	3074	  	Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and
	3075	  	accrued interest, but such money need not be segregated from other funds except to the extent
	3076	  	required by law.
		
	3077	  	 The Company shall pay and indemnify the Trustee against any tax, fee or other charge

	3078	  	imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section
	3079	  	9.02(a) or the principal, premium, if any, and interest received in respect thereof other than any
	3080	  	such tax, fee or other charge which by law is for the account of the Holders of the outstanding
	3081	  	Notes.
		
	3082	  	 Anything in this Article Nine to the contrary notwithstanding, the Trustee shall deliver or

	3083	  	pay to the Company from time to time upon a request of the Company any money or U.S.
	3084	  	Government Obligations held by it as provided in Section 9.02(a) which, in the opinion of a
	3085	  	nationally recognized firm of independent public accountants expressed in a written certification
	3086	  	thereof delivered to the Trustee, are in excess of the amount thereof which would then be
	3087	  	required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

  

 -87- 









			
	3088	  	 SECTION 9.04. Reinstatement.

		
	3089	  	 If the Trustee or Paying Agent is unable to apply any money or U.S. Government

	3090	  	Obligations in accordance with Section 9.01 by reason of any legal proceeding or by reason of
	3091	  	any order or judgment of any court or governmental authority enjoining, restraining or otherwise
	3092	  	prohibiting such application, the Company’s obligations under this Indenture and the Notes shall
	3093	  	be revived and reinstated as though no deposit had occurred pursuant to this Article Nine until
	3094	  	such time as the Trustee or Paying Agent is permitted to apply all such money or U.S.
	3095	  	Government Obligations in accordance with Section 9.01; provided that if the Company has
	3096	  	made any payment of principal of, premium, if any, or accrued interest on any Notes because of
	3097	  	the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders
	3098	  	of such Notes to receive such payment from the money or Government Obligations held by the
	3099	  	Trustee or Paying Agent.
		
	3100	  	 SECTION 9.05. Moneys Held by Paying Agent.

		
	3101	  	 In connection with the satisfaction and discharge of this Indenture, all moneys then held

	3102	  	by any Paying Agent under the provisions of this Indenture shall, upon written demand of the
	3103	  	Company, be paid to the Trustee, or if sufficient moneys have been deposited pursuant to Section
	3104	  	9.02(a), to the Company upon a request of the Company, and thereupon such Paying Agent shall
	3105	  	be released from all further liability with respect to such moneys.
		
	3106	  	 SECTION 9.06. Moneys Held by Trustee.

		
	3107	  	 Any moneys deposited with the Trustee or any Paying Agent or then held by the

	3108	  	Company in trust for the payment of the principal of or premium, if any, or interest on any Note
	3109	  	that are not applied but remain unclaimed by the Holder of such Note for two years after the date
	3110	  	upon which the principal of or premium, if any, or interest on such Note shall have respectively
	3111	  	become due and payable shall be repaid to the Company upon a request of the Company, or if
	3112	  	such moneys are then held by the Company in trust, such moneys shall be released from such
	3113	  	trust; and the Holder of such Note entitled to receive such payment shall thereafter, as an
	3114	  	unsecured general creditor, look only to the Company for the payment thereof, and all liability of
	3115	  	the Trustee or such Paying Agent with respect to such trust money shall thereupon cease;
	3116	  	provided that the Trustee or any such Paying Agent, before being required to make any such
	3117	  	repayment, may, at the expense of the Company, either mail to each Holder affected, at the
	3118	  	address shown in the Note register maintained by the Registrar pursuant to Section 2.04, or cause
	3119	  	to be published once a week for two successive weeks, in a newspaper published in the English
	3120	  	language, customarily published each Business Day and of general circulation in the City of New
	3121	  	York, New York, a notice that such money remains unclaimed and that, after a date specified
	3122	  	therein, which shall not be less than 30 days from the date of such mailing or publication, any
	3123	  	unclaimed balance of such moneys then remaining will be repaid to the Company. After
	3124	  	payment to the Company or the release of any money held in trust by the Company, Holders

  

 -88- 









			
	3125	  	entitled to the money must look only to the Company for payment as general creditors unless
	3126	  	applicable abandoned property law designates another Person.
		
	3127	  	                                   ARTICLE TEN

	3128	  	 
	3129	  	                                        
       MISCELLANEOUS

		
	3130	  	 SECTION 10.01. Trust Indenture Act Controls.

		
	3131	  	 If any provision of this Indenture limits, qualifies or conflicts with another provision

	3132	  	which is required to be included in this Indenture by the TIA, the required provision shall
	3133	  	control. If any provision of this Indenture modifies any TIA provision that may be so modified,
	3134	  	such TIA provision shall be deemed to apply to this Indenture as so modified. If any provision
	3135	  	of this Indenture excludes any TIA provision that may be so excluded, such TIA provision shall
	3136	  	be excluded from this Indenture.
		
	3137	  	 The provisions of TIA §§ 310 through 317 that impose duties on any Person (including

	3138	  	the provisions automatically deemed included unless expressly excluded by this Indenture) are a
	3139	  	part of and govern this Indenture, whether or not physically contained herein.
		
	3140	  	 SECTION 10.02. Notices.

		
	3141	  	 Except for notice or communications to Holders, any notice or communication shall be

	3142	  	given in writing and when received if delivered in person, when receipt is acknowledged if sent
	3143	  	by facsimile, on the next Business Day if timely delivered by a nationally recognized courier
	3144	  	service that guarantees overnight delivery or two Business Days after deposit if mailed by first-
	3145	  	class mail, postage prepaid, addressed as follows:
		
	3146	  	 If to the Company:

		
	3147	  	 Advanced Micro Devices, Inc.

	3148	  	 One AMD Place

	3149	  	 Sunnyvale, California 94088

	3150	  	 Attn: Chief Financial Officer

		
	3151	  	 With a copy to:

		
	3152	  	 Latham & Watkins

	3153	  	 505 Montgomery Street, Suite 1900

	3154	  	 San Francisco, California 94111

	3155	  	 Fax: (415) 395-8095

	3156	  	 Telephone: (415) 391-0600

	3157	  	 Attn: Tad J. Freese, Esq.


  

 -89- 









			
	3158	  	 If to the Trustee, Registrar or Paying Agent:

		
	3159	  	 Wells Fargo Bank, N.A.

	3160	  	 707 Wilshire Boulevard, 17th Floor

	3161	  	 Los Angeles, CA 90017

	3162	  	 Fax: (213) 614-3355

	3163	  	 Telephone: (213) 614-3349

	3164	  	 Attn: Corporate Trust Services

		
	3165	  	 Such notices or communications shall be effective when received and shall be sufficiently

	3166	  	given if so given within the time prescribed in this Indenture.
		
	3167	  	 The Company or the Trustee by written notice to the others may designate additional or

	3168	  	different addresses for subsequent notices or communications.
		
	3169	  	 Any notice or communication mailed to a Holder shall be mailed to him by first-class

	3170	  	mail, postage prepaid, at his address shown on the Note register kept by the Registrar.
		
	3171	  	 Failure to mail a notice or communication to a Holder or any defect in it shall not affect

	3172	  	its sufficiency with respect to other Holders. If a notice or communication to a Holder is mailed
	3173	  	in the manner provided above, it shall be deemed duly given, whether or not the addressee
	3174	  	receives it.
		
	3175	  	 In case by reason of the suspension of regular mail service, or by reason of any other

	3176	  	cause, it shall be impossible to mail any notice as required by this Indenture, then such method of
	3177	  	notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing
	3178	  	of such notice.
		
	3179	  	 SECTION 10.03. Communications by Holders with Other Holders.

		
	3180	  	 Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to

	3181	  	their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and
	3182	  	anyone else shall have the protection of TIA § 312(c).
		
	3183	  	 SECTION 10.04. Certificate and Opinion as to Conditions Precedent.

		
	3184	  	 Upon any request or application by the Company to the Trustee to take any action under

	3185	  	this Indenture (except for the issuance of Notes on the Issue Date), the Company shall furnish to
	3186	  	the Trustee:
		
	3187	  	 (1) an Officers’ Certificate (which shall include the statements set forth in

	3188	  	 Section 10.05 below) stating that, in the opinion of the signers, all conditions precedent,

	3189	  	 if any, provided for in this Indenture relating to the proposed action have been complied

	3190	  	 with; and


  

 -90- 









			
	3191	  	 (2) an Opinion of Counsel (which shall include the statements set forth in

	3192	  	Section 10.05 below) stating that, in the opinion of such counsel, all such conditions
	3193	  	precedent have been complied with.
		
	3194	  	 SECTION 10.05. Statements Required in Certificate and Opinion.

		
	3195	  	 Each certificate (other than certificates provided pursuant to Section 4.06) and opinion

	3196	  	with respect to compliance by or on behalf of the Company with a condition or covenant
	3197	  	provided for in this Indenture shall include:
		
	3198	  	 (a) a statement that the Person delivering such certificate or opinion has read

	3199	  	 such covenant or condition;

		
	3200	  	 (b) a brief statement as to the nature and scope of the examination or

	3201	  	 investigation upon which the statements or opinions contained in such certificate or

	3202	  	 opinion are based;

		
	3203	  	 (c) a statement that, in the opinion of such Person, it or he has made such

	3204	  	 examination or investigation as is necessary to enable it or him to express an informed

	3205	  	 opinion as to whether or not such covenant or condition has been complied with; and

		
	3206	  	 (d) a statement as to whether or not, in the opinion of such Person, such

	3207	  	 covenant or condition has been complied with.

		
	3208	  	 SECTION 10.06. Rules by Trustee and Agents.

		
	3209	  	 The Trustee may make reasonable rules for action by or meetings of Holders. The

	3210	  	Registrar and Paying Agent may make reasonable rules for their functions.
		
	3211	  	 SECTION 10.07. Legal Holidays.

		
	3212	  	 A “Legal Holiday” is a Saturday, a Sunday or other day on which (i) commercial banks

	3213	  	in the City of New York are authorized or required by law to close or (ii) the New York Stock
	3214	  	Exchange is not open for trading. If a payment date is a Legal Holiday at a place of payment,
	3215	  	payment may be made at that place on the next succeeding day that is not a Legal Holiday, and
	3216	  	no interest shall accrue for the intervening period.
		
	3217	  	 SECTION 10.08. Governing Law.

		
	3218	  	 This Indenture and the Notes are governed by the internal laws of the State of New York

	3219	  	without reference to principles of conflicts of law.

  

 -91- 









			
	3220	  	 SECTION 10.09. No Adverse Interpretation of Other Agreements.

		
	3221	  	 This Indenture may not be used to interpret another indenture, loan, security or debt

	3222	  	agreement of the Company or any Subsidiary thereof. No such indenture, loan, security or debt
	3223	  	agreement may be used to interpret this Indenture.
		
	3224	  	 SECTION 10.10. Successors.

		
	3225	  	 All agreements of the Company in this Indenture and the Notes shall bind their respective

	3226	  	successors. All agreements of the Trustee, any additional trustee and any Paying Agents in this
	3227	  	Indenture shall bind its successor.
		
	3228	  	 SECTION 10.11. Multiple Counterparts.

		
	3229	  	 The parties may sign multiple counterparts of this Indenture. Each signed counterpart

	3230	  	shall be deemed an original, but all of them together represent one and the same agreement.
		
	3231	  	 SECTION 10.12. Consent to Jurisdiction and Service; Waiver of Immunity.

		
	3232	  	 The Company revocably appoints Corporation Service Company as its agent for service

	3233	  	of process in any suit, action or proceeding with respect to this Indenture or the Notes and for
	3234	  	actions brought under federal or state securities laws in any federal or state court located in the
	3235	  	Borough of Manhattan in the City of New York and submits to such non-exclusive jurisdiction.
		
	3236	  	 To the extent that the Company has or hereafter may acquire any immunity (sovereign or

	3237	  	otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-
	3238	  	off or any legal process (whether service or notice, attachment in aid or otherwise) with respect
	3239	  	to itself or any of its property, the Company hereby irrevocably waives and agrees not to plead or
	3240	  	claim such immunity in respect of its obligations under this Indenture or under the Notes.
		
	3241	  	 SECTION 10.13. Conversion of Currency.

		
	3242	  	 The Company covenants and agrees that the following provisions shall apply to

	3243	  	conversion of currency in the case of the Notes and this Indenture:
		
	3244	  	 (a)     (i) If, for the purpose of obtaining judgment in, or enforcing the judgment of,

	3245	  	any court in any country, it becomes necessary to convert into a currency (the “Judgment
	3246	  	Currency”) an amount due in any other currency (the “Base Currency”), then the conversion
	3247	  	shall be made at the rate of exchange prevailing on the Business Day before the day on which the
	3248	  	judgment is given or the order of enforcement is made, as the case may be (unless a court shall
	3249	  	otherwise determine).
		
	3250	  	 (ii) If there is a change in the rate of exchange prevailing between the

	3251	  	Business Day before the day on which the judgment is given or an order of enforcement is made,

  

 -92- 









			
	3252	  	as the case may be (or such other date as a court shall determine), and the date of receipt of the
	3253	  	amount due, the Company will pay such additional (or, as the case may be, such lesser) amount,
	3254	  	if any, as may be necessary so that the amount paid in the Judgment Currency when converted at
	3255	  	the rate of exchange prevailing on the date of receipt will produce the amount in the Base
	3256	  	Currency originally due.
		
	3257	  	 (b) In the event of the winding-up of the Company at any time while any amount or

	3258	  	damages owing under the Notes and/or this Indenture, or any judgment or order rendered in
	3259	  	respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders and
	3260	  	the Trustee harmless against any deficiency arising or resulting from any variation in rates of
	3261	  	exchange between (1) the date as of which the equivalent of the amount in U.S. Dollars due or
	3262	  	contingently due under the Notes and/or this Indenture (other than under this Section 10.13(b)) is
	3263	  	calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of
	3264	  	claim in such winding-up. For the purpose of this Section 10.13(b), the final date for the filing
	3265	  	of proofs of claim in the winding-up of the Company shall be the date fixed by the liquidator or
	3266	  	otherwise in accordance with the relevant provisions of applicable law as being the latest
	3267	  	practicable date as at which liabilities of the Company may be ascertained for such winding-up
	3268	  	prior to payment by the liquidator or otherwise in respect thereto.
		
	3269	  	 (c) The obligations contained in Section 10.13(a)(ii) and (b) shall constitute

	3270	  	obligations of the Company separate and independent from its other respective obligations under
	3271	  	the Notes and this Indenture, shall give rise to separate and independent causes of action against
	3272	  	the Company, shall apply irrespective of any waiver or extension granted by any Holder or the
	3273	  	Trustee or any of them from time to time and shall continue in full force and effect
	3274	  	notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of
	3275	  	the Company for a liquidated sum in respect of amounts due hereunder (other than under Section
	3276	  	10.13(b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be
	3277	  	deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no
	3278	  	proof or evidence of any actual loss shall be required by the Company or the liquidator or
	3279	  	otherwise any of them. In the case of Section 10.13(b) above, the amount of such deficiency
	3280	  	shall not be deemed to be reduced by any variation in rates of exchange occurring between the
	3281	  	said final date and the date of any liquidating distribution.
		
	3282	  	 (d) The term “rate(s) of exchange” shall mean the rate of exchange quoted by

	3283	  	Citicorp North America, Inc. (or its relevant affiliate(s)) at its central foreign exchange desk at its
	3284	  	head office in New York at 12:00 noon New York time for purchases of the Base Currency with
	3285	  	the Judgment Currency other than the Base Currency referred to in subsections (a) and (b) above
	3286	  	and includes any premiums and costs of exchange payable.
		
	3287	  	 (e) The Trustee shall have no duty or liability with respect to monitoring or enforcing

	3288	  	this Section 10.13.

  

 -93- 









			
	3289	  	 SECTION 10.14. Table of Contents, Headings, etc.

		
	3290	  	 The table of contents, cross-reference sheet and headings of the Articles and Sections of

	3291	  	this Indenture have been inserted for convenience of reference only, are not to be considered a
	3292	  	part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
		
	3293	  	 SECTION 10.15. Separability.

		
	3294	  	 Each provision of this Indenture shall be considered separable and if for any reason any

	3295	  	provision which is not essential to the effectuation of the basic purpose of this Indenture or the
	3296	  	Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
	3297	  	remaining provisions shall not in any way be affected or impaired thereby.
		
	3298	  	                                       
             [Signature Pages Follow]

  

 -94- 








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

			
	ADVANCED MICRO DEVICES, INC.
		
	 By:
	 	 /s/ Robert J. Rivet


	 Name:
	 	Robert J. Rivet
	 Title:
	 	Executive Vice President and Chief Financial Officer










			
	 WELLS FARGO BANK, N.A.,
 as Trustee

		
	 By:
	 	 /s/ Jeanie Mar


	 Name:
	 	 Jeanie Mar

	 Title:
	 	 Vice President










 EXHIBIT A 
  

CUSIP 
  
 ADVANCED MICRO DEVICES, INC. 
  

			
	No.	 	$

  

	
	$                 7.75 % SENIOR NOTE DUE 2012

  
 ADVANCED MICRO
DEVICES, INC., a Delaware corporation, as issuer (the “Company”), for value received, promises to pay to CEDE & CO. or registered assigns the principal sum of $
                    on November 1, 2012. 
  
 Interest Payment Dates: November 1 and May 1 
  
 Record Dates: October 15 and April 15 
  
 Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.








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

			
	ADVANCED MICRO DEVICES, INC.
		
	 By:
	 	  


	 Name:
	 	 
	 Title:
	 	 









 Certificate of Authentication 
  
 This is one of the 7.75% Senior Notes Due 2012 referred to in the within-mentioned Indenture. 
  

			
	 WELLS FARGO BANK, N.A., as Trustee

		
	 By:
	 	  


	 	 	Authorized Officer









 [FORM OF REVERSE OF NOTE] 
  
 ADVANCED MICRO DEVICES, INC. 
  
 7.75% SENIOR NOTE DUE 2012 
  
 1. Interest. ADVANCED MICRO DEVICES, INC., a Delaware corporation, as issuer (the “Company”), promises to pay, until the principal
hereof is paid or made available for payment, interest on the principal amount set forth on the face hereof at a rate of 7.75% per annum. Interest hereon will accrue from the date of original issuance or, if interest has already been paid, from the
date it was most recently paid or, if no interest has been paid, from and including October 29, 2004 to but excluding the date on which interest is paid. Interest shall be payable semi-annually in arrears on each November 1 and May 1, commencing May
1, 2005.* Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company
shall pay interest on overdue principal and on overdue interest (to the full extent permitted by law) at the rate borne by the Notes. 
  
 2. Method of Payment. The Company will pay interest hereon (except defaulted interest) to the Persons who are registered Holders at the close of
business on October 15 or April 15 immediately preceding the interest payment date (whether or not a Business Day). Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay to the Paying Agent principal and
interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debt, provided that if a Holder of at least $1,000,000 aggregate principal amount of Notes has given wire transfer
instructions to the Company no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion), the Company will pay, or cause to be paid by the Paying Agent, all principal,
interest and Additional Interest (as defined herein), if any, on the Holder’s Notes in accordance with those instructions. All other payments on the Notes will be made by check mailed to the Holders at their address set forth in the register of
Holders. 
  
 3. Paying Agent and Registrar. Initially,
Wells Fargo Bank, N.A. (the “Trustee”) will act as a Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to the Holders. The Company may act as Paying Agent or Registrar. 
  
 4. Indenture. The Company issued the Notes under an Indenture dated as
of October 29, 2004 (the “Indenture”), between the Company and the Trustee. This is one of an issue of 


	*	With respect to Additional Notes, Interest will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including
the date such Additional Notes are issued. 








 Notes of the Company issued, or to be issued, under the Indenture. 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 (15 U.S. Code §§ 77aaa-77bbbb), as amended from time to time. The Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of them. Each Holder of a Note agrees to and shall be bound by such provisions. Capitalized and certain other terms used herein and not otherwise defined have the meanings set forth in the Indenture. 
  
 5. Optional Redemption. (a) Except as set forth in the next succeeding
paragraphs, the Notes will not be redeemable at the option of the Company prior to November 1, 2008. Starting on that date, the Company may redeem all or any portion of the Notes, at any time or from time to time, after giving the required notice
under the Indenture. The Notes may be redeemed at the redemption prices set forth below, plus accrued and unpaid interest, 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 prices are for Notes redeemed during the 12-month period commencing on November 1 of the years set forth below, and are expressed as percentages of principal amount: 
  

				
	 Year

	  	 Redemption
 Price

	 
	 2008
	  	103.875	%
	 2009
	  	101.938	%
	 2010 and thereafter
	  	100.000	%

  
 (b) At any time or
from time to time prior to November 1, 2008, the Company may redeem all or any portion of the Notes, after giving the notice required under the Indenture, at a redemption price equal to the sum of: 
  
 (1) 100% of the principal amount of Notes to be redeemed;
and 
  
 (2) the excess of 
  
 (a) the sum of the present values of (1) the redemption
price of the Notes to be redeemed at November 1, 2008 (as set forth in paragraph 5(a) hereto), and (2) the remaining scheduled payments of interest from the redemption date to November 1, 2008, but excluding accrued and unpaid interest to the
redemption date, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points, over 
  
 (b) 100% of the principal amount of the Notes to be redeemed, 
  
 plus accrued and unpaid interest 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). 







 (c) At any time and from time to time, prior to November 1, 2007, the Company may redeem up to a maximum
of 35% of the aggregate principal amount of the Notes (including any Additional Notes) with the proceeds of one or more Qualified Equity Offerings, at a redemption price equal to 107.75% of the principal amount thereof, plus accrued and unpaid
interest thereon, 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); provided, however, that after giving
effect to any such redemption, at least 65% of the aggregate principal amount of the Notes (including any Additional Notes) remains outstanding. Any such redemption shall be made within 90 days of such Qualified Equity Offering upon not less than 30
nor more than 60 days’ prior notice. 
  
 “Treasury
Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15
(519) that has become publicly available at least two Business Days prior to the redemption date (or, if such statistical release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the
redemption date to November 1, 2008; provided, however, that if the period from the redemption date to November 1, 2008 is not equal to the constant maturity of the United States Treasury security for which a weekly average yield is
given, the Treasury Rate shall be obtained by linear interpolation (calculated to one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the
redemption date to November 1, 2008 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used. 
  
 (d) The Trustee will select Notes called for redemption pursuant to this
paragraph 5 on a pro rata basis as set forth in the Indenture; provided that no Notes of $1,000 or less shall be redeemed in part. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Note. Notes called for redemption pursuant to this paragraph 5 hereto become due on the date fixed for redemption. On and after the Redemption Date, interest stops accruing on Notes or portions of
them called for redemption as, and to the extent, provided in Section 3.05 of the Indenture. 
  
 6. Notice of Redemption. Notices of redemption shall be mailed by first class mail at least 30 but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its registered
address. Notices of redemption may not be conditional. If any Note is to be redeemed in part only, the notice of redemption that relates to such Note shall state the portion of the principal amount thereof to be redeemed. 
  
 7. Offers To Purchase. The Indenture provides that upon the occurrence
of a Change of Control or an Asset Sale and subject to further limitations contained therein, the Company shall make an offer to purchase outstanding Notes in accordance with the procedures set forth in the Indenture. 
  
 8. Registration Rights. (a) Pursuant to a Registration Rights
Agreement among the Company and the Initial Purchasers named therein (the “Registration Rights Agreement”) and subject to the further limitations and conditions set forth therein, the Company will be obligated 







 to consummate an exchange offer (the “Exchange Offer”) pursuant to which the Holder of this Note shall
have the right to exchange this Note for Notes which have been registered under the Securities Act, in like principal amount and having substantially identical terms as the Notes. 
  
 (b) If (i) within 90 days after the Issue Date of the Notes, the Exchange Offer Registration Statement (as defined in the
Registration Rights Agreement) has not been filed with the Commission; (ii) within 180 days after the Issue Date of the Notes, the Exchange Offer Registration Statement has not been declared effective; (iii) within 225 days after the Issue Date of
the Notes, the Registered Exchange Offer (as defined in the Registration Rights Agreement) has not been consummated; (iv) within 60 days of the day on which the obligation to use commercially reasonable efforts to file the Shelf Registration
Statement (as defined in the Registration Rights Agreement), such Shelf Registration Statement is not filed with the Commission; (v) within 120 days of the day on which the obligation to use commercially reasonable efforts to cause the Shelf
Registration Statement to become effective, such Shelf Registration Statement is not declared effective by the Commission; or (vi) after either the Exchange Offer Registration Statement or the Shelf Registration Statement has been declared
effective, such Registration Statement thereafter ceases to be effective or fails to be usable (subject, in the case of the Shelf Registration Statement, to the exceptions set forth in the Registration Rights Agreement) in connection with resales of
Notes or Exchange Notes in accordance with and during the periods specified in Section 2 and 3 of the Registration Rights Agreement (each such event referred to in clauses (i) through (vi), a “Registration Default”),
“Additional Interest” (as defined in the Registration Rights Agreement) will accrue on the terms and in the amounts set forth in the Registration Rights Agreement. 
  
 9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay to it any taxes and
fees required by law or permitted by the Indenture. The Registrar shall not be required to exchange or register a transfer of any Note for a period of 15 days immediately preceding the redemption of Notes, except the unredeemed portion of any Note
being redeemed in part. 
  
 10. Persons Deemed Owners. The
registered Holder of this Note may be treated as the owner of this Note for all purposes. 
  
 11. Unclaimed Money. If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its written request. After that,
Holders entitled to the money must look to the Company for payment as general creditors unless an “abandoned property” law designates another Person. 
  

12. Amendment, Supplement, Waiver, Etc. The Company and the Trustee (if a party thereto) may, without the consent of the Holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for certain specified purposes, including, among other things, curing ambiguities, omissions, defects or inconsistencies, maintaining the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, providing for the assumption by a successor to the Company of its obligations under the Indenture and making any change that does not materially and adversely affect the rights of any Holder. Other
amendments and 







 modifications of the Indenture or the Notes may be made by the Company and the Trustee with the consent of the Holders of
not less than a majority of the aggregate principal amount of the outstanding Notes, subject to certain exceptions requiring the consent of the Holders of the particular Notes to be affected. 
  
 13. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other things, incur additional Debt, pay dividends on, redeem or repurchase its Capital Stock, make certain investments, sell assets, create restrictions on the payment of
dividends or other amounts to the Company from any Restricted Subsidiaries, enter into transactions with Affiliates, expand into unrelated businesses, create liens or consolidate, merge or sell all or substantially all of the assets of the Company
and its Restricted Subsidiaries and requires the Company to provide reports to Holders of the Notes. Such limitations are subject to a number of important qualifications and exceptions. Pursuant to Section 4.06 of the Indenture, the Company must
annually report to the Trustee on compliance with such limitations. 
  
 14. Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the Notes and the Indenture and the transaction complies with the terms of Article Five of the Indenture, the predecessor
corporation will, except as provided in Article Five, be released from those obligations. 
  
 15. Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an Event of Default (other than an Event of Default specified in Sections 6.01(7)
and 6.01(8) of the Indenture with respect to the Company) occurs and is continuing, the Trustee or the registered Holders of not less than 25% of the principal amount of the Notes then outstanding, may, and the Trustee at the written request of such
Holders shall, declare due and payable, if not already due and payable, the principal of and any accrued and unpaid interest on all of the Notes by notice in writing to the Company and the Trustee specifying the applicable Event of Default and that
it is a “notice of acceleration”, and the same shall immediately become due and payable. If an Event of Default specified in Sections 6.01(7) and 6.01(8) of the Indenture occurs with respect to the Company, then the principal of and any
accrued and unpaid interest on all of the Notes shall immediately become due and payable without any declaration or other act on the part of the Trustee or any Holder. Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may require indemnification satisfactory to it before it enforces the Indenture or the Notes. 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 notice of any continuing default (except a default in payment of principal of, or interest on, the Notes) if it determines that withholding notice is in their best interests.

  
 16. Trustee Dealings with Company. Subject to certain
limitations imposed by the Trust Indenture Act, 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 Trustee. 
  
 17. No Recourse
Against Others. No past, present or future director, officer, employee or stockholder of the Company, as such, shall have any liability for any obligations of 







 the Company under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all such liabilities. The waiver and release are part of the consideration for issuance of the Notes. 
  
 18. Discharge. The Company’s obligations pursuant to the Indenture will be discharged, except for obligations
pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment of all the Notes or upon the irrevocable deposit with the Trustee of United States dollars or U.S. Government Obligations sufficient to pay when due
principal of and interest on the Notes to maturity or redemption, as the case may be. 
  
 19. Authentication. This Note shall not be valid until the Trustee signs the certificate of authentication on the other side of this Note. 
  
 20. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. The Trustee and the Company agree to submit to the jurisdiction of the courts of the
State of New York in any action or proceeding arising out of or relating to the Indenture or the Notes. 
  
 21. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
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). 
  
 The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made
to: 
  

	
	 Advanced Micro Devices, Inc.

	 One AMD Place

	 Sunnyvale, California 94088

	 Fax: (408) 774-7002

	 Telephone: (408) 749-4000

	 Att: Legal Department


  

	
	 With a copy to:

	
	 Latham & Watkins

	 505 Montgomery Street, Suite 1900

	 San Francisco, California 94111

	 Fax: (415) 395-8095

	 Telephone: (415) 391-0600

	 Att: Tad J. Freese, Esq.









 ASSIGNMENT FORM 
  

I or we assign and transfer this Note to: 
  

	
	 
	______________________________________________________________________________________________________________________________(Insert assignee’s social security or tax I.D.
number)
	 
	______________________________________________________________________________________________________________________________(Print or type name, address and zip code of
assignee)

  
 and irrevocably
appoint: 
  
 Agent to transfer this Note on the books of the
Company. The Agent may substitute another to act for him. 
  

							
	Date:____________________________	  	 	  	Your Signature:	 	  


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

  

			
	 Signature Guarantee:
	 	  



  
 SIGNATURE GUARANTEE

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







 SCHEDULE OF INCREASES OR DECREASES 
 IN THE PRINCIPAL AMOUNT OF THIS GLOBAL NOTE 
  
 The following increases or decreases in the principal amount of this Global Note have been made: 
  

									
	 Date of
 Exchange

	 	 Amount of
 decrease in
 Principal
 Amount of this
 Global Note

	 	 Amount of
 increase in
 Principal
 Amount of this
 Global Note

	 	 Principal
 Amount of this
 Global Note
 following such
 increase or
 decrease

	 	 Signature of
 authorized
 signatory of
 Trustee


	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________
					
	______________	 	______________	 	______________	 	______________	 	______________








 OPTION OF HOLDER TO ELECT PURCHASE 
  
 If you want to elect to have all or any part of this Note purchased by the Company pursuant to Section 4.08 or Section 4.12
of the Indenture, check the appropriate box: 
  

							
	  ̈
	 	   Section 4.08
	 	 ̈	 	   Section 4.12


  
 If you want to have
only part of the Note purchased by the Company pursuant to Section 4.08 or Section 4.12 of the Indenture, state the amount you elect to have purchased: 
  

	
	 $ ______________________________________

	 (multiple of $1,000)            
  

	  
 Date:____________________________________


  

					
	 	  	 Your Signature:
	 	  


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

  

	
	 
	
 Signature Guarantee


  
 SIGNATURE GUARANTEE

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







 EXHIBIT B 
  

[FORM OF LEGEND FOR 144A NOTES AND 
 OTHER
NOTES THAT ARE RESTRICTED NOTES] 
  
 THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. 
  
 BY ITS ACQUISITION HEREOF
OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: 
  
 (1)
REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (A) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “IAI”); 
  
 (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULES 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND 
  
 (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. 
  
 AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE GOVERNING THIS NOTE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING. 







 Exhibit B 
 Page 2 
  
 [FORM OF ASSIGNMENT FOR
144A NOTES AND 
 OTHER NOTES THAT ARE RESTRICTED NOTES] 
  
 I or we assign and transfer this Note to: 
  

	
	 
	______________________________________________________________________________________________________________________________(Insert assignee’s social security or tax
I.D. number)
	
	 
	______________________________________________________________________________________________________________________________(Print or type name, address and zip code of
assignee)

  
 and irrevocably
appoint: 
  
 Agent to transfer this Note on the books of the
Company. The Agent may substitute another to act for him. 
  
 [Check One] 
  
 [    ] (a) this Note
is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder. 
  
 or 
  
 [    ] (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the Indenture. 
  
 If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been satisfied. 
  

							
	Date:____________________________	  	 	  	Your Signature:	 	  


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

  

			
	 Signature Guarantee:
	 	  



  
 SIGNATURE GUARANTEE

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







 Exhibit B 
 Page 3 
  
 TO BE COMPLETED BY
TRANSFEROR IF (a) ABOVE IS CHECKED 
  
 The transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act, and, accordingly, the transferor hereby further certifies that the beneficial interest or certificated Note is being transferred to a Person that the transferor
reasonably believed and believes is purchasing the beneficial interest or certificated 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 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 certificated Note will be subject to the restrictions on transfer enumerated on the Rule 144A Notes and/or the
certificated Note and in the Indenture and the Securities Act. 
  

					
	 Dated:

	  	  


	 	  	NOTICE: To be executed by an executive officer








 EXHIBIT C 
  

[FORM OF LEGEND FOR REGULATION S NOTE] 
  
 THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. 
  
 BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: 
  
 (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
(A “QIB”), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (A) (1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN “IAI”); 
  
 (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULES 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND 
  

(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. 
  
 AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND
“UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE GOVERNING THIS NOTE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING. 







 Exhibit C 
 Page2 
  
 [FORM OF ASSIGNMENT FOR
REGULATION S NOTE] 
  
 I or we assign and transfer this Note to:

  

	
	 
	______________________________________________________________________________________________________________________________(Insert assignee’s social security or tax I.D.
number)
	 
	______________________________________________________________________________________________________________________________(Print or type name, address and zip code of
assignee)

  
 and irrevocably
appoint: 
  
 Agent to transfer this Note on the books of the
Company. The Agent may substitute another to act for him. 
  
 [Check One] 
  
 [    ] (a) this Note
is being transferred in compliance with the exemption from registration under the Securities Act provided by Regulation S thereunder. 
  
 or 
  
 [    ] (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the Indenture. 
  
 If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been satisfied. 
  

							
	Date:____________________________	  	 	  	Your Signature:	 	  


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

  

			
	 Signature Guarantee:
	 	  



  
 SIGNATURE GUARANTEE

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







 Exhibit C 
 Page 3 
  
 TO BE COMPLETED BY
TRANSFEROR IF (a) ABOVE IS CHECKED 
  
 The transfer is being
effected pursuant to and in accordance with Rule 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, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the restricted period under Regulation S, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an initial purchaser). Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or certificated Note will be subject to the restrictions on transfer enumerated on the Regulation S Notes and/or the certificated Note and in
the Indenture and the Securities Act. 
  

					
	 Dated:

	  	  


	 	  	NOTICE: To be executed by an executive officer








 EXHIBIT D 
  

[FORM OF LEGEND FOR GLOBAL NOTE] 
  
 Any Global Note authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a
Restricted Note) in substantially the following form: 
  
 THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. 
  
 UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) (“DTC”) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN. 







 EXHIBIT E 
  

Form of Certificate To Be Delivered 
 in
Connection with Transfers 
 Pursuant to Regulation S 
  
 Wells Fargo Bank, N.A. 
 707 Wilshire Boulevard,
17th Floor 
 Los
Angeles, California 90017 
  
 Attention: Corporate Trust Services 
  

			
	Re:	    	 Advanced Micro Devices, Inc., a Delaware corporation,
 as issuer (the “Company”), 7.75% Senior

	 	    	Notes Due 2012 (the “Notes”)

  
 Dear Sirs: 
  
 In connection with our proposed sale of
$                    aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that: 
  
 (1) the offer of the Notes was not made to a U.S. person or to a person in the United States; 
  
 (2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States, or (b) the transaction was executed in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States; 
  
 (3) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(a) of
Regulation S; 
  
 (4) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities Act; 
  
 (5) we have advised the transferee of the transfer restrictions applicable to the Notes. 







 Exhibit E 
 Page 2 
  
 You are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S. 
  

			
	Very truly yours,
	
	[Name of Transferor]
		
	By:	 	  












			
	1	  	EXHIBIT F
		
	2	  	                                       
                 [FORM OF CERTIFICATE FROM
	3	  	                                ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR]
		
	4	  	Advanced Micro Devices, Inc.
	5	  	One AMD Place
	6	  	Sunnyvale, California 94088
	7	  	 
	8	  	Wells Fargo Bank, N.A.
	9	  	707 Wilshire Boulevard, 17th Floor
	10	  	Los Angeles, California 90017
	11	  	 
		
	12	  	 Re: 7.75% SENIOR NOTES DUE 2012

		
	13	  	 Reference is hereby made to the Indenture, dated as of October 29, 2004 (the

	14	  	“Indenture”), between Advanced Micro Devices, Inc., as issuer (the “Company”), and Wells
	15	  	Fargo Bank, N.A., as trustee. Capitalized terms used but not defined herein shall have the
	16	  	meanings given to them in the Indenture.
		
	17	  	 In connection with our proposed purchase of
$                    million aggregate principal amount of:

		
	18	  	 [    ] a beneficial interest in a Global Note, or

		
	19	  	 [    ] a definitive Note,

		
	20	  	 we confirm that:

		
	21	  	 1. We understand that any subsequent transfer of the Notes or any interest therein is

	22	  	subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees
	23	  	to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein
	24	  	except in compliance with, such restrictions and conditions and the United States Securities Act
	25	  	of 1933, as amended (the “Securities Act”).
		
	26	  	 2. We understand that the offer and sale of the Notes have not been registered under

	27	  	the Securities Act, and that the Notes and any interest therein may not be offered or sold except
	28	  	as permitted in the following sentence. We agree, on our own behalf and on behalf of any
	29	  	accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any
	30	  	interest therein, prior to the expiration of the holding period applicable to sales of the Senior
	31	  	Subordinate Notes under Rule 144(k) of the Securities Act, we will do so only (A) to the
	32	  	Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act
	33	  	to a “qualified institutional buyer” (as defined therein), (C) outside the United States in








 Exhibit F 
 Page 2 
  

			
	34	  	accordance with Rule 904 of Regulation S under the Securities Act, (D) pursuant to the
	35	  	provisions of Rule 144(k) under the Securities Act, (E) in accordance with another exemption
	36	  	from the registration requirements of the Securities Act (and based upon an opinion of counsel
	37	  	acceptable to the Company) or (F) pursuant to an effective registration statement under the
	38	  	Securities Act, and we further agree to provide to any person purchasing the definitive Note or
	39	  	beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses
	40	  	(A) through (E) of this paragraph a notice advising such purchaser that resales thereof are
	41	  	restricted as stated herein.
		
	42	  	 3. We understand that, on any proposed resale of the Notes or beneficial interest

	43	  	therein, we will be required to furnish to you and the Company such certifications, legal opinions
	44	  	and other information as you and the Company may reasonably require to confirm that the
	45	  	proposed sale complies with the foregoing restrictions. We further understand that the Notes
	46	  	purchased by us will bear a legend to the foregoing effect. We further understand that any
	47	  	subsequent transfer by us of the Notes or beneficial interest therein acquired by us must be
	48	  	effected through one of the Placement Agents.
		
	49	  	 4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3)

	50	  	or (7) of Regulation D under the Securities Act) and have such knowledge and experience in
	51	  	financial and business matters as to be capable of evaluating the merits and risks of our
	52	  	investment in the Notes, and we and any accounts for which we are acting are each able to bear
	53	  	the economic risk of our or its investment.
		
	54	  	 5. We are acquiring the Notes or beneficial interest therein purchased by us for our

	55	  	own account or for one or more accounts (each of which is an institutional “accredited investor”)
	56	  	as to each of which we exercise sole investment discretion.
		
	57	  	 You and the Company are entitled to rely upon this letter and are irrevocably authorized

	58	  	to produce this letter or a copy hereof to any interested party in any administrative or legal
	59	  	proceedings or official inquiry with respect to the matters covered hereby.
		
	60	  	_________________________________
	61	  	[Insert Name of
Transferor]                           
		
	62	  	By:                                      
                             
	63	  	Name:                                      
                        
	64	  	Title:                                      
                          
		
	65	  	Dated:                 ,