Exhibit 4.1


 



 

SANMINA CORPORATION,
 as Issuer

 

THE GUARANTORS PARTY HERETO,
 as Guarantors

 

and

 

U.S. BANK NATIONAL ASSOCIATION,
 as Trustee and Notes Collateral Agent

 




 

Indenture

 

Dated as of June 4, 2014

 

$375,000,000

 

4.375% Senior Secured Notes due 2019

 





 



 











 

TABLE OF CONTENTS

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
ARTICLE ONE
    
	
DEFINITIONS AND OTHER PROVISIONS
    
	
OF GENERAL APPLICATION
    
	
 
    	
 
    	
 
    
	
SECTION 101.
    	
DEFINITIONS
    	
1
    
	
SECTION 102.
    	
COMPLIANCE CERTIFICATES AND   OPINIONS
    	
38
    
	
SECTION 103.
    	
FORM OF DOCUMENTS   DELIVERED TO TRUSTEE
    	
39
    
	
SECTION 104.
    	
ACTS OF HOLDERS; RECORD   DATE
    	
39
    
	
SECTION 105.
    	
NOTICES, ETC.,   TO TRUSTEE, NOTES COLLATERAL AGENT AND COMPANY
    	
41
    
	
SECTION 106.
    	
NOTICE TO HOLDERS; WAIVER
    	
41
    
	
SECTION 107.
    	
CONFLICT WITH TRUST   INDENTURE ACT
    	
42
    
	
SECTION 108.
    	
EFFECT OF HEADINGS AND TABLE   OF CONTENTS
    	
42
    
	
SECTION 109.
    	
SUCCESSORS AND ASSIGNS
    	
42
    
	
SECTION 110.
    	
SEPARABILITY CLAUSE
    	
42
    
	
SECTION 111.
    	
BENEFITS OF INDENTURE
    	
43
    
	
SECTION 112.
    	
GOVERNING LAW
    	
43
    
	
SECTION 113.
    	
LEGAL HOLIDAYS
    	
43
    
	
SECTION 114.
    	
INDENTURE   AND SECURITIES SOLELY CORPORATE OBLIGATIONS
    	
43
    
	
SECTION 115.
    	
COUNTERPARTS
    	
43
    
	
 
    	
 
    	
 
    
	
ARTICLE TWO
    
	
NOTE FORMS
    
	
 
    	
 
    	
 
    
	
SECTION 201.
    	
FORMS GENERALLY
    	
44
    
	
SECTION 202.
    	
RESTRICTIVE LEGENDS
    	
44
    
	
 
    	
 
    	
 
    
	
ARTICLE THREE
    
	
THE NOTES
    
	
 
    	
 
    	
 
    
	
SECTION 301.
    	
TITLE AND TERMS
    	
46
    
	
SECTION 302.
    	
DENOMINATIONS
    	
46
    
	
SECTION 303.
    	
EXECUTION, AUTHENTICATION,   DELIVERY AND DATING
    	
46
    
	
SECTION 304.
    	
TEMPORARY NOTES
    	
47
    
	
SECTION 305.
    	
REGISTRATION   AND REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY; CERTAIN TRANSFERS AND   EXCHANGES; SECURITIES ACT LEGEND; PROVISIONS APPLYING TO GLOBAL NOTES
    	
48
    
	
SECTION 306.
    	
MUTILATED, DESTROYED, LOST   AND STOLEN NOTES
    	
52
    
	
SECTION 307.
    	
PAYMENT OF INTEREST;   INTEREST RIGHTS PRESERVED
    	
53
    
	
SECTION 308.
    	
PERSONS DEEMED OWNERS
    	
54
    
	
SECTION 309.
    	
CANCELLATION
    	
54
    
	
SECTION 310.
    	
COMPUTATION OF INTEREST
    	
54
    
	
SECTION 311.
    	
CUSIP NUMBERS
    	
55
    
	
SECTION 312.
    	
ISSUANCE OF ADDITIONAL   NOTES
    	
55
    


 

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Page
    
	
ARTICLE FOUR
    
	
SATISFACTION AND DISCHARGE
    
	
 
    	
 
    	
 
    
	
SECTION 401.
    	
SATISFACTION AND DISCHARGE   OF INDENTURE
    	
55
    
	
SECTION 402.
    	
APPLICATION OF TRUST MONEY
    	
57
    
	
 
    	
 
    	
 
    
	
ARTICLE FIVE
    
	
REMEDIES
    
	
 
    	
 
    	
 
    
	
SECTION 501.
    	
EVENTS OF DEFAULT
    	
57
    
	
SECTION 502.
    	
ACCELERATION OF MATURITY;   RESCISSION AND ANNULMENT
    	
59
    
	
SECTION 503.
    	
COLLECTION OF DEBT AND   SUITS FOR ENFORCEMENT BY TRUSTEE
    	
60
    
	
SECTION 504.
    	
TRUSTEE MAY FILE   PROOFS OF CLAIM
    	
60
    
	
SECTION 505.
    	
TRUSTEE MAY ENFORCE   CLAIMS WITHOUT POSSESSION OF NOTES
    	
61
    
	
SECTION 506.
    	
APPLICATION OF MONEY   COLLECTED
    	
61
    
	
SECTION 507.
    	
LIMITATION ON SUITS AND   REMEDIES
    	
61
    
	
SECTION 508.
    	
UNCONDITIONAL   RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST
    	
62
    
	
SECTION 509.
    	
RESTORATION OF RIGHTS AND   REMEDIES
    	
62
    
	
SECTION 510.
    	
RIGHTS AND REMEDIES   CUMULATIVE
    	
62
    
	
SECTION 511.
    	
DELAY OR OMISSION NOT   WAIVER
    	
62
    
	
SECTION 512.
    	
CONTROL BY HOLDERS
    	
62
    
	
SECTION 513.
    	
WAIVER OF PAST DEFAULTS
    	
63
    
	
SECTION 514.
    	
UNDERTAKING FOR COSTS
    	
63
    
	
SECTION 515.
    	
WAIVER OF STAY OR EXTENSION   LAWS
    	
63
    
	
 
    	
 
    	
 
    
	
ARTICLE SIX
    
	
THE TRUSTEE
    
	
 
    	
 
    	
 
    
	
SECTION 601.
    	
CERTAIN DUTIES AND   RESPONSIBILITIES
    	
64
    
	
SECTION 602.
    	
NOTICE OF DEFAULTS
    	
64
    
	
SECTION 603.
    	
CERTAIN RIGHTS OF TRUSTEE
    	
64
    
	
SECTION 604.
    	
NOT RESPONSIBLE FOR   RECITALS OR ISSUANCE OF NOTES
    	
66
    
	
SECTION 605.
    	
MAY HOLD NOTES
    	
66
    
	
SECTION 606.
    	
MONEY HELD IN TRUST
    	
67
    
	
SECTION 607.
    	
COMPENSATION AND   REIMBURSEMENT
    	
67
    
	
SECTION 608.
    	
DISQUALIFICATION:   CONFLICTING INTERESTS
    	
68
    
	
SECTION 609.
    	
CORPORATE TRUSTEE REQUIRED;   ELIGIBILITY
    	
68
    
	
SECTION 610.
    	
RESIGNATION AND REMOVAL;   APPOINTMENT OF SUCCESSOR
    	
68
    
	
SECTION 611.
    	
ACCEPTANCE OF APPOINTMENT   BY SUCCESSOR
    	
69
    
	
SECTION 612.
    	
MERGER, CONVERSION,   CONSOLIDATION OR SUCCESSION TO BUSINESS
    	
69
    
	
SECTION 613.
    	
PREFERENTIAL COLLECTION OF   CLAIMS AGAINST COMPANY
    	
70
    


 

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Page
    
	
SECTION 614.
    	
APPOINTMENT OF   AUTHENTICATING AGENT
    	
70
    
	
SECTION 615.
    	
SECURITY DOCUMENTS;   INTERCREDITOR AGREEMENT
    	
71
    
	
 
    	
 
    	
 
    
	
ARTICLE SEVEN
    
	
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
    
	
 
    	
 
    	
 
    
	
SECTION 701.
    	
COMPANY TO FURNISH TRUSTEE   NAMES AND ADDRESSES OF HOLDERS
    	
71
    
	
SECTION 702.
    	
PRESERVATION OF   INFORMATION; COMMUNICATIONS TO HOLDERS
    	
72
    
	
SECTION 703.
    	
REPORTS BY TRUSTEE
    	
72
    
	
SECTION 704.
    	
REPORTS BY COMPANY
    	
72
    
	
 
    	
 
    	
 
    
	
ARTICLE EIGHT
    
	
MERGERS, CONSOLIDATION AND SALE OF PROPERTY
    
	
 
    	
 
    	
 
    
	
SECTION 801.
    	
THE COMPANY   MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS
    	
72
    
	
SECTION 802.
    	
THE NOTES GUARANTORS   MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS
    	
73
    
	
 
    	
 
    	
 
    
	
ARTICLE NINE
    
	
SUPPLEMENTAL INDENTURES
    
	
 
    	
 
    	
 
    
	
SECTION 901.
    	
SUPPLEMENTAL INDENTURES   WITHOUT CONSENT OF HOLDERS
    	
74
    
	
SECTION 902.
    	
SUPPLEMENTAL INDENTURES   WITH CONSENT OF HOLDERS
    	
75
    
	
SECTION 903.
    	
EXECUTION OF SUPPLEMENTAL   INDENTURES
    	
76
    
	
SECTION 904.
    	
EFFECT OF SUPPLEMENTAL   INDENTURES
    	
77
    
	
SECTION 905.
    	
CONFORMITY WITH TRUST   INDENTURE ACT
    	
77
    
	
SECTION 906.
    	
REFERENCE IN NOTES TO   SUPPLEMENTAL INDENTURES
    	
77
    
	
SECTION 907.
    	
NOTICE OF SUPPLEMENTAL   INDENTURE
    	
77
    
	
SECTION 908.
    	
FORM OF CONSENT
    	
77
    
	
 
    	
 
    	
 
    
	
ARTICLE TEN
    
	
COVENANTS
    
	
 
    	
 
    	
 
    
	
SECTION 1001.
    	
PAYMENT OF PRINCIPAL, PREMIUM   AND INTEREST
    	
77
    
	
SECTION 1002.
    	
MAINTENANCE OF OFFICE OR   AGENCY
    	
78
    
	
SECTION 1003.
    	
MONEY FOR NOTE PAYMENTS TO   BE HELD IN TRUST
    	
78
    
	
SECTION 1004.
    	
CORPORATE EXISTENCE
    	
79
    
	
SECTION 1005.
    	
MAINTENANCE OF PROPERTIES
    	
79
    
	
SECTION 1006.
    	
PAYMENT OF TAXES AND OTHER   CLAIMS
    	
79
    
	
SECTION 1007.
    	
MAINTENANCE OF INSURANCE
    	
79
    
	
SECTION 1008.
    	
LIMITATION ON DEBT
    	
80
    
	
SECTION 1009.
    	
LIMITATION ON RESTRICTED   PAYMENTS
    	
80
    
	
SECTION 1010.
    	
LIMITATION   ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED SUBSIDIARIES
    	
84
    
	
SECTION 1011.
    	
LIMITATION ON LIENS
    	
86
    


 

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Page
    
	
SECTION 1012.
    	
[INTENTIONALLY OMITTED]
    	
86
    
	
SECTION 1013.
    	
LIMITATION ON ASSET SALES
    	
86
    
	
SECTION 1014.
    	
LIMITATION ON TRANSACTIONS   WITH AFFILIATES
    	
88
    
	
SECTION 1015.
    	
REPURCHASE AT THE OPTION OF   HOLDERS UPON A CHANGE OF CONTROL
    	
89
    
	
SECTION 1016.
    	
DESIGNATION OF RESTRICTED   AND UNRESTRICTED SUBSIDIARIES
    	
90
    
	
SECTION 1017.
    	
PAYMENTS FOR CONSENT
    	
91
    
	
SECTION 1018.
    	
[INTENTIONALLY OMITTED]
    	
91
    
	
SECTION 1019.
    	
REPORTS
    	
91
    
	
SECTION 1020.
    	
STATEMENT BY OFFICERS AS TO   DEFAULT; COMPLIANCE CERTIFICATES
    	
92
    
	
SECTION 1021.
    	
WAIVER OF CERTAIN COVENANTS
    	
92
    
	
SECTION 1022.
    	
COVENANT SUSPENSION
    	
92
    
	
 
    	
 
    	
 
    
	
ARTICLE ELEVEN
    
	
REDEMPTION OF NOTES
    
	
 
    	
 
    	
 
    
	
SECTION 1101.
    	
RIGHT OF REDEMPTION
    	
93
    
	
SECTION 1102.
    	
APPLICABILITY OF ARTICLE
    	
93
    
	
SECTION 1103.
    	
ELECTION TO REDEEM; NOTICE   TO TRUSTEE
    	
94
    
	
SECTION 1104.
    	
SELECTION BY TRUSTEE OF   NOTES TO BE REDEEMED
    	
94
    
	
SECTION 1105.
    	
NOTICE OF REDEMPTION
    	
94
    
	
SECTION 1106.
    	
DEPOSIT OF REDEMPTION PRICE
    	
95
    
	
SECTION 1107.
    	
NOTES PAYABLE ON REDEMPTION   DATE
    	
95
    
	
SECTION 1108.
    	
NOTES REDEEMED IN PART
    	
95
    
	
 
    	
 
    	
 
    
	
ARTICLE TWELVE
    
	
GUARANTEES
    
	
 
    	
 
    	
 
    
	
SECTION 1201.
    	
NOTES GUARANTEE
    	
96
    
	
SECTION 1202.
    	
EXECUTION AND DELIVERY OF   THE NOTES GUARANTEES
    	
97
    
	
SECTION 1203.
    	
LIMITATION ON NOTES   GUARANTORS’ LIABILITY
    	
98
    
	
SECTION 1204.
    	
RIGHTS UNDER THE NOTES   GUARANTEES
    	
98
    
	
SECTION 1205.
    	
PRIMARY OBLIGATIONS
    	
98
    
	
SECTION 1206.
    	
NOTES GUARANTEE BY FUTURE   DOMESTIC SUBSIDIARIES
    	
99
    
	
SECTION 1207.
    	
RELEASE OF NOTES GUARANTORS
    	
99
    
	
 
    	
 
    	
 
    
	
ARTICLE THIRTEEN
    
	
DEFEASANCE AND COVENANT DEFEASANCE
    
	
 
    	
 
    	
 
    
	
SECTION 1301.
    	
COMPANY’S OPTION TO EFFECT   DEFEASANCE OR COVENANT DEFEASANCE
    	
100
    
	
SECTION 1302.
    	
DEFEASANCE AND DISCHARGE
    	
100
    
	
SECTION 1303.
    	
COVENANT DEFEASANCE
    	
100
    
	
SECTION 1304.
    	
CONDITIONS TO DEFEASANCE OR   COVENANT DEFEASANCE
    	
101
    


 

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Page
    
	
SECTION 1305.
    	
DEPOSITED   MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER   MISCELLANEOUS PROVISIONS
    	
102
    
	
SECTION 1306.
    	
REINSTATEMENT
    	
102
    
	
 
    	
 
    	
 
    
	
ARTICLE FOURTEEN
    
	
COLLATERAL
    
	
 
    	
 
    	
 
    
	
SECTION 1401.
    	
SECURITY DOCUMENTS
    	
103
    
	
SECTION 1402.
    	
RELEASE OF COLLATERAL
    	
103
    
	
SECTION 1403.
    	
SUITS TO PROTECT THE   COLLATERAL
    	
104
    
	
SECTION 1404.
    	
AUTHORIZATION   OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE SECURITY DOCUMENTS
    	
105
    
	
SECTION 1405.
    	
PURCHASER PROTECTED
    	
105
    
	
SECTION 1406.
    	
POWERS EXERCISABLE BY   RECEIVER OR TRUSTEE
    	
105
    
	
SECTION 1407.
    	
NOTES COLLATERAL AGENT
    	
105
    
	
SECTION 1408.
    	
MATERIAL REAL PROPERTY
    	
111
    
	
SECTION 1409.
    	
TRUST INDENTURE ACT NOT   APPLICABLE
    	
111
    
	
 
    	
 
    	
 
    
	
Exhibit A
    	
Form of Note
    	
A-1
    
	
Exhibit B
    	
Regulation S Certificate
    	
B-1
    
	
Exhibit C
    	
Form of Restricted Notes Certificate
    	
C-1
    
	
Exhibit D
    	
Form of Unrestricted Notes Certificate
    	
D-1
    
	
Exhibit E
    	
Form of Notes Guarantee
    	
E-1
    


 

v











 

INDENTURE, dated as of June 4, 2014, among Sanmina Corporation, a corporation duly organized and existing under the laws of the State of Delaware, as issuer (herein called the “Company”), having its principal executive offices at 2700 North First Street, San Jose, California 95134, the Notes Guarantors (as defined herein) and U.S. Bank National Association, as trustee (in such capacity, the “Trustee”) and as Notes Collateral Agent (in such capacity, the “Notes Collateral Agent”).

 

RECITALS OF THE COMPANY

 

The Company has duly authorized the creation of an issue of its 4.375% Senior Secured Notes due 2019, of substantially the tenor and amount hereinafter set forth herein, and to provide therefor the Company and the Notes Guarantors have duly authorized the execution and delivery of this Indenture.  The Notes may consist of any of or all of the Original Notes or Additional Notes, each as defined herein.  The Original Notes and any Additional Notes shall rank pari passu with one another, shall together constitute a single class and series of securities and will vote together as one series of securities under this Indenture.

 

All things necessary to make the Notes, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done.

 

All things necessary to make the Notes Guarantees, when executed by the Notes Guarantors and delivered hereunder, the valid obligations of the Notes Guarantors, and to make this Indenture a valid agreement of the Notes Guarantors, in accordance with their and its terms, have been done.

 

This Indenture is subject to, and shall be governed by, the same provisions of the Trust Indenture Act that are required to be a part of and govern indentures qualified under the Trust Indenture Act.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:

 

ARTICLE ONE
 DEFINITIONS AND OTHER PROVISIONS
 OF GENERAL APPLICATION

 

SECTION 101.                                 Definitions.

 

(a)                                 For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

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

 

(2)                                 all other terms used herein which are defined in the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), either directly or by reference therein, have the meanings assigned to them therein;

 











 

(3)                                 all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States (whether or not such is indicated herein), and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” or “GAAP” with respect to any financial or accounting computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States as in effect from time to time (for avoidance of doubt, any determination with respect to whether a lease constitutes a capital lease or an operating lease shall be determined in accordance with accounting principles as are generally accepted in the United States as in effect on the Issue Date);

 

(4)                                 unless the context otherwise requires, any reference to an “Article” or a “Section,” or to an “Exhibit” or a “Schedule,” refers to an Article or Section of, or to an Exhibit or a Schedule attached to, this Indenture, as the case may be;

 

(5)                                 unless the context otherwise requires, any reference to a statute, rule or regulation refers to the same (including any successor statute, rule or regulation thereto) as it may be amended from time to time;

 

(6)                                 unless otherwise specifically set forth herein, all calculations or determinations of a Person shall be performed or made on a consolidated basis in accordance with GAAP;

 

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

 

(8)                                 except as otherwise specifically provided in this Indenture, whenever the covenant or default provisions or definitions in this Indenture refer to an amount in U.S. dollars, that amount will be deemed to refer to the U.S. Dollar Equivalent of the amount of any obligation denominated in any other currency or currencies, including composite currencies.  Any determination of U.S. Dollar Equivalent for any purpose under this Indenture will be determined as of a date of determination as described in the definition of “U.S. Dollar Equivalent” and, in any case, no subsequent change in the U.S. Dollar Equivalent after the applicable date of determination will cause such determination to be modified.

 

(b)                                 Certain terms, used principally in Article Ten, are defined in that Article.  Other terms are defined as follows:

 

“ABL Agent” means the collateral agent under the ABL Facility, and its successors, replacements and/or assigns in such capacity.

 

“ABL Facility” means the Amended and Restated Loan, Guaranty and Security Agreement, dated as of March 16, 2012, among the Company and certain of the Company’s subsidiaries party thereto as borrowers, the subsidiaries party thereto from time to time as guarantors, the financial institutions party thereto from time to time as lenders, and Bank of America, N.A., as agent for such lenders, including any related notes, collateral documents, letters of credit and documentation and Guarantees and any appendices, exhibits or schedules to any of the foregoing, as any or all of such agreements (or any other agreement that Refinances any or all of such agreements or any of the foregoing other agreements) have been or may be amended, restated, modified or supplemented from time to time, or renewed, refunded, refinanced, restructured, replaced, Repaid or extended from time to time, whether with the original agents and lenders or other agents and lenders or otherwise, and whether provided under the original credit agreement or one or more other credit agreements or otherwise.

 

“ABL Obligations” means the Indebtedness and other Obligations in respect of an ABL Facility permitted by clause (b) of the definition of “Permitted Debt” and certain cash management

 

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arrangements and hedging obligations that are secured by the Liens securing the Indebtedness or other Obligations incurred pursuant to the ABL Facility pursuant to the security documents entered into in connection with the ABL Facility.

 

“Acquired Debt” means Debt of a Person outstanding on the date on which such Person is merged or consolidated with the Company or any Restricted Subsidiary or becomes a Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person.  Acquired Debt shall be deemed to be Incurred on the date the acquired Person becomes a Restricted Subsidiary or the date of the related acquisition of assets from such Person.

 

“Act,” when referring to the Act of Holders, shall have the meaning set forth in Section 104.

 

“Action” has the meaning specified in Section 1407.

 

“Additional Assets” means:

 

(a)                                 any Property (other than cash, Cash Equivalents and securities) to be owned by the Company or any Restricted Subsidiary and used or useful in a Permitted Business, including, without limitation, receivables repurchased in connection with a Receivables Program;

 

(b)                                 Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary from any Person other than the Company or an Affiliate of the Company; provided, however, that, in the case of this clause (b), such Restricted Subsidiary is primarily engaged in a Permitted Business; and

 

(c)                                  any Permitted Investment (other than as described in clauses (a), (b) (insofar as the Investment is made in a Restricted Subsidiary) or (d) of the definition of “Permitted Investment”).

 

“Additional Notes” means additional Notes that may be issued under this Indenture after the date that the Original Notes are first issued by the Company and authenticated by the Trustee under this Indenture, which shall rank pari passu with the Original Notes initially issued in all respects.  Additional Notes shall include Notes of like terms and tenor issued in exchange for Additional Notes and any Successor Notes in respect thereof.

 

“Affiliate” of any specified Person means:

 

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

 

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

 

(1)                                 such specified Person;

 

(2)                                 any Subsidiary of such specified Person; or

 

(3)                                 any Person described in clause (a) of this definition.

 

For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through

 

3











 

the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Affiliate Transaction” has the meaning specified in Section 1014.

 

“Agent Members” means any member of, or direct participants in, the Depository.

 

“Allocable Excess Proceeds” has the meaning specified in Section 1013.

 

“Applicable Procedures” means the rules and procedures of the Depository.

 

“Asset Sale” means any sale, transfer, issuance or other disposition (or series of related sales, transfers, issuances or dispositions) by the Company or any Restricted Subsidiary, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a “disposition”), of:

 

(a)                                 any shares of Capital Stock of a Restricted Subsidiary that results in a change of control of the Restricted Subsidiary (other than directors’ qualifying shares), or

 

(b)                                 any other assets of the Company or any Restricted Subsidiary (excluding Capital Stock of the Company, cash and Cash Equivalents) outside of the ordinary course of business of the Company or such Restricted Subsidiary,

 

in the case of either clause (a) or (b), (1) that have a Fair Market Value in excess of $10.0 million, or (2) for net proceeds in excess of $10.0 million.

 

Notwithstanding the foregoing clauses (a) and (b) of this definition, in no event shall an Asset Sale include:

 

(1)                                 any disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary;

 

(2)                                 any disposition that constitutes a Permitted Investment or Restricted Payment or any disposition of a Permitted Investment, in any such case, to the extent permitted by Section 1009;

 

(3)                                 any disposition effected in compliance with Article Eight;

 

(4)                                 any disposition of damaged, worn out, surplus or other obsolete personal or real property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the business of the Company and its Restricted Subsidiaries;

 

(5)                                 any issuance of Capital Stock by a Subsidiary of the Company to the Company or to another Subsidiary of the Company (other than the issuance of Capital Stock by a Restricted Subsidiary to an Unrestricted Subsidiary);

 

(6)                                 the licensing by the Company or any Restricted Subsidiary of intellectual property or know-how on commercially reasonable terms and in the ordinary course of business;

 

(7)                                 the sale, lease, conveyance or other disposition of Property in connection with the obligation of the Company or any Restricted Subsidiary to remarket or sell any Property at the

 

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end of the lease term or otherwise under or in connection with any Synthetic Lease or Sale and Leaseback Transaction relating to the Office Campus;

 

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

 

(9)                                 the sale, lease, conveyance or other disposition of Receivables Program Assets by the Company or any Restricted Subsidiary in connection with any Receivables Program so long as, in the case of any sale by the Company or any Domestic Restricted Subsidiary, immediately after giving effect thereto, the aggregate outstanding amount of accounts receivable that have been transferred by the Company or any Domestic Restricted Subsidiary, and not collected or determined by the Company to be uncollectible does not exceed $125.0 million (it being understood that only the excess should be excluded by this clause (9);

 

(10)                          the sub-lease of facilities of the Company or any Restricted Subsidiary and the lease by the Company or any Restricted Subsidiary of facilities under any operating lease, in either such case, in the ordinary course of business;

 

(11)                          the granting of a Permitted Lien and dispositions in connection with Permitted Liens;

 

(12)                          one or more sales of fixed assets by the Company or any Restricted Subsidiary in connection with any restructuring plans of the Company, provided that the aggregate consideration for all such sales does not exceed $50.0 million;

 

(13)                          the termination of any Hedging Obligations or any Permitted Bond Hedge; and

 

(14)                          foreclosures, condemnations, seizures or any similar action on assets and any loss or destruction of or damage to any asset.

 

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

 

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

 

(b)                                 in all other instances, the present value (discounted at the interest rate borne by the Notes, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease has been extended).

 

“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Notes.

 

“Average Life” means, as of any date of determination, with respect to any Debt or Preferred Stock, the quotient obtained by dividing:

 

(a)                                 the sum of the product of the numbers of years (rounded to the nearest one-twelfth of one year) from the date of determination to the dates of each successive scheduled principal payment of such Debt or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of such payment, by

 

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(b)                                 the sum of all such payments.

 

“Board of Directors” means the Board of Directors of the Company or any committee thereof authorized with respect to any particular matter to exercise the power of the Board of Directors.

 

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

 

“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the City of New York, New York or San Jose, California or such other city in which the Corporate Trust Office of the Trustee is located, are authorized or obligated by law or executive order to close.

 

“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.

 

“Capital Lease Obligations” means any obligation under a lease of any property (whether real, personal or mixed) that is capitalized for financial reporting purposes in accordance with United States generally accepted accounting principles as in effect on the Issue Date; and the amount of Debt represented by such obligation shall be the capitalized amount of such obligations determined in accordance with United States generally accepted accounting principles as in effect on the Issue Date; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease.  For purposes of Section 1011, a Capital Lease Obligation shall be deemed secured by a Lien on the Property being leased.

 

“Capital Stock” means, with respect to any Person, any shares or other equivalents (however designated) of any class of corporate stock or partnership interests or any other participations, rights, warrants, options or other interests in the nature of an equity interest in such Person, including Preferred Stock, but excluding any Convertible Security.

 

“Capital Stock Sale Proceeds” means the aggregate cash proceeds received by the Company from the issuance or sale (other than to a Restricted Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees) by the Company of its Capital Stock (other than Disqualified Stock) after the Issue Date, net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof.

 

“Cash Equivalents” means:

 

(a)                                 securities issued or directly and fully guaranteed or insured by (i) the United States Government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof), or (ii) any member of the European Economic Area or Switzerland, or any agency or instrumentality thereof (provided that such country, agency or instrumentality has a credit rating at least equal to that of the United States and the full faith and credit of such country is pledged in support thereof), in each case, with such securities having maturities of not more than thirteen months from the date of acquisition;

 

(b)                                 marketable general obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing

 

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within thirteen months from the date of acquisition thereof (provided that the full faith and credit of such state is pledged in support thereof) and, at the time of acquisition thereof, having credit ratings of at least AA- (or the equivalent) by S&P and at least Aa3 (or the equivalent) by Moody’s;

 

(c)                                  certificates of deposit, demand deposits, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than thirteen months from the date of acquisition thereof issued by any commercial bank organized in the United States of America, Canada, Japan or Switzerland or any member of the European Economic Area, in each case, of recognized standing and having combined capital and surplus in excess of $500.0 million (or the foreign currency equivalent thereof);

 

(d)                                 repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (a), (b) and (c) of this definition entered into with any bank meeting the qualifications specified in clause (c) of this definition;

 

(e)                                  commercial paper rated at the time of acquisition thereof in one of the two highest categories obtainable from both S&P and Moody’s or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of investments, and in any case maturing within thirteen months after the date of acquisition thereof;

 

(f)                                   interests in any investment company or money market fund substantially all of the assets of which are of the type specified in clauses (a) through (e) of this definition;

 

(g)                                  asset backed securities rated AAA or better by S&P or Moody’s, with such securities having maturities of not more than thirteen months from the date of acquisition;

 

(h)                                 in the case of any Foreign Subsidiary, high quality short-term investments which are customarily used for cash management purposes in any country in which such Foreign Subsidiary operates; and

 

(i)                                     investments that are consistent with the investment policy of the Company that has been adopted by the Board of Directors as in effect on the Issue Date.

 

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

 

(a)                                 if any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act or any successor provisions to either of the foregoing), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act, except that a person will be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 50% or more of the total voting power of the Voting Stock of the Company (for purposes of this clause (a), such person or group shall be deemed to beneficially own any Voting Stock of a corporation held by any other corporation (the “parent corporation”) so long as such person or group beneficially owns, directly or indirectly, in the aggregate a majority of the total voting power of the Voting Stock of such parent corporation); or

 

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(b)                                 the sale, transfer, assignment, lease, conveyance or other disposition, directly or indirectly, of all or substantially all the assets of the Company and its Restricted Subsidiaries, considered as a whole (other than a disposition of such assets as an entirety or virtually as an entirety to a Wholly Owned Restricted Subsidiary) shall have occurred, or the Company merges, consolidates or amalgamates with or into any other Person or any other Person merges, consolidates or amalgamates with or into the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is reclassified into or exchanged for cash, securities or other Property, other than any such transaction where:

 

(1)                                 the outstanding Voting Stock of the Company is reclassified into or exchanged for other Voting Stock of the Company or for Voting Stock of the surviving corporation; and

 

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

 

(c)                                  during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors (together with any new directors whose election or appointment by such Board or whose nomination for election by the shareholders of the Company was approved (either by a specific vote or approval of a proxy statement issued by the Company on behalf of its entire Board of Directors in which such individual is named as a nominee for director) by a vote of not less than a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office; or

 

(d)                                 the shareholders of the Company shall have approved any plan of liquidation or dissolution of the Company.

 

“Change of Control Offer” has the meaning specified in Section 1015.

 

“Change of Control Purchase Date” has the meaning specified in Section 1015.

 

“Change of Control Purchase Price” has the meaning specified in Section 1015.

 

“Clearstream” means Clearstream Banking, S.A., and any successor thereto.

 

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

 

“Collateral” means all property subject or purported to be subject, from time to time, to a Lien under any Security Document.

 

“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

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“Commodity Agreement” means any forward contract, commodity swap agreement, commodity option agreement, commodity collar agreement, commodity cap agreement or other similar agreement or arrangement.

 

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

 

“Company Request” or “Company Order” means a written request or order signed in the name of the Company by an Officer, and delivered to the Trustee.

 

“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of:

 

(a)                                 the aggregate amount of EBITDA for the most recently ended four consecutive fiscal quarters for which financial statements have been made publicly available; to

 

(b)                                 Consolidated Interest Expense for such four fiscal quarters; provided, however, that

 

(1)                                 if

 

(A)                               since the beginning of such period but prior to such date of determination, the Company or any Restricted Subsidiary has Incurred any Debt that remains outstanding or Repaid any Debt; or

 

(B)                               the transaction giving rise to the need to calculate the Consolidated Interest Coverage Ratio is an Incurrence or Repayment of Debt,

 

Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Incurrence or Repayment as if such Debt was Incurred or Repaid on the first day of such period, provided that, (i) in the event of any such Repayment of Debt, EBITDA for such period shall be calculated as if the Company or such Restricted Subsidiary had not earned any interest income actually earned during such period in respect of the funds used to Repay such Debt and (ii) in making such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period; and

 

(2)                                 if

 

(A)                               since the beginning of such period but prior to such date of determination the Company or any Restricted Subsidiary shall have made any Asset Sale or an acquisition of Property which constitutes all or substantially all of an operating unit of a business;

 

(B)                               the transaction giving rise to the need to calculate the Consolidated Interest Coverage Ratio is such an Asset Sale or acquisition; or

 

(C)                               since the beginning of such period but prior to such date of determination any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period) shall have made such an Asset Sale or acquisition;

 

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EBITDA for such period shall be calculated after giving pro forma effect to such Asset Sale or acquisition as if such Asset Sale or acquisition had occurred on the first day of such period.

 

If any Debt bears a floating rate of interest and is being given pro forma effect, the interest expense on such Debt shall be calculated as if the base interest rate in effect for such floating rate of interest on the date of determination had been the applicable base interest rate for the entire period (taking into account any Interest Rate Agreement applicable to such Debt if such Interest Rate Agreement has a remaining term in excess of the lesser of (i) 12 months and (ii) the remaining period until the Stated Maturity of such Debt).  In the event the Capital Stock of any Restricted Subsidiary is sold during the period, the Company shall be deemed, for purposes of clause (b)(1) of this definition, to have Repaid during such period the Debt of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Debt after such sale.

 

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

 

(a)                                 interest expense attributable to Capital Lease Obligations and the imputed interest with respect to Attributable Debt;

 

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

 

(c)                                  capitalized interest;

 

(d)                                 non-cash interest expense;

 

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

 

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

 

(g)                                  Disqualified Stock Dividends, other than dividends payable to the Company or a Restricted Subsidiary of the Company;

 

(h)                                 Preferred Stock Dividends, other than dividends payable to the Company or a Restricted Subsidiary of the Company;

 

(i)                                     interest actually paid by the Company or any Restricted Subsidiary on any Debt of any other Person to the extent such Debt is Guaranteed by the Company or any Restricted Subsidiary; and

 

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

 

“Consolidated Net Income” means, for any period, the net income (loss) of the Company and its consolidated Restricted Subsidiaries; provided, however, that there shall not be included in such Consolidated Net Income (without duplication):

 

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(a)                                 if any Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, an amount that is equal to (i) the amount of net income attributable to such Restricted Subsidiary multiplied by (ii) the percentage ownership interest in the income of such Restricted Subsidiary not owned on the last day of such period by the Company or any of its Restricted Subsidiaries;

 

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

 

(1)                                 the Company’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash or any Property distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (d) of this definition); and

 

(2)                                 the Company’s equity in a net loss of any such Person other than an Unrestricted Subsidiary for such period shall be included in determining such Consolidated Net Income;

 

(c)                                  for purposes of calculating the amount of Restricted Payments that may be made pursuant to clause (a)(3) of Section 1009 only, any net income (loss) of any Person acquired by the Company or any of its consolidated Subsidiaries for any period prior to the date of such acquisition;

 

(d)                                 any net income (loss) of any Restricted Subsidiary if such Restricted Subsidiary is unable to both pay dividends and otherwise distribute cash to the Company and any other Restricted Subsidiary because it is subject to the restrictions of its charter or other organizational document or any agreement, instrument, contract, judgment, decree, order or statute, rule or governmental regulation applicable to the Restricted Subsidiary, except that:

 

(1)                                 the Company’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to another Restricted Subsidiary, to the limitation contained in this clause); and

 

(2)                                 the Company’s equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income;

 

(e)                                  any gain (or loss) realized upon the sale or other disposition of any Property of the Company or any of its consolidated Restricted Subsidiaries (including pursuant to any Sale and Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary course of business;

 

(f)                                   any extraordinary gain or loss;

 

(g)                                  restructuring charges, write-downs and reserves (to the extent not excluded in subsection (f) of this definition) taken by the Company or its Restricted Subsidiaries in an aggregate amount not to exceed $40.0 million in any four fiscal quarter period or $150.0 million for all periods following the Issue Date;

 

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(h)                                 the cumulative effect of a change in accounting principles; and

 

(i)                                     any non-cash compensation expense realized for grants of, or in connection with the exercise of, performance shares, stock options or other rights to officers, directors and employees of the Company or any Restricted Subsidiary, provided that such shares, options or other rights can be redeemed at the option of the holder for Capital Stock of the Company (other than Disqualified Stock).

 

Notwithstanding the foregoing, for purposes of Section 1009 only, there shall be excluded from Consolidated Net Income any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the extent such dividends, repayments or transfers increase the amount of Restricted Payments permitted under Section 1009 pursuant to clause (a)(3)(D) thereof.

 

“Consolidated Tangible Foreign Assets” means, as of any date of determination, the sum of the amounts that would appear on the consolidated balance sheet of the Foreign Subsidiaries of the Company as the total assets of the Foreign Subsidiaries of the Company, minus the total intangible assets of the Foreign Subsidiaries of the Company.

 

“Corporate Trust Office” means the office of the Trustee and Notes Collateral Agent or any of their affiliates at which at any particular time its corporate trust business may be administered and any additional office it may designate in writing to the Company.  At the date of this Indenture, the Corporate Trust Office of the Trustee and the Notes Collateral Agent is located at 633 West Fifth Street, 24th Floor, Los Angeles, California 90071, Attention:  Corporate Trust Services (Sanmina Corporation 4.375% Senior Secured Notes due 2019).

 

“covenant defeasance” has the meaning specified in Section 1303.

 

“Convertible Security” means any debt security convertible into, or exchangeable for, Equity Interests, cash or a combination thereof.

 

“Credit Facilities” means, with respect to the Company or any Restricted Subsidiary, one or more (a) debt or commercial paper facilities or instruments with banks or other institutional lenders whether acting with or through a trustee (including the ABL Facility), or (b) indentures, in each case providing for one or more revolving credit loans, term loans, receivables or inventory financing (including through the sale of receivables or inventory to such lenders or to special purpose, bankruptcy remote entities formed to borrow from such lenders against such receivables or inventory) swing-line or commercial paper facilities (including any letter of credit, sub-facilities or other facilities), letters of credit or note facilities or issuances, in each case together with any Refinancings thereof, whether any such Refinancing is under one or more debt or commercial paper facilities, indentures or other agreements, by a lender or syndicate of lenders, holders or trustees, including, in each case, any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, modified, renewed, refunded, replaced or refinanced from time to time, whether or not with the same agent, trustee, representative lender or holders, and irrespective of any change in the terms and conditions thereof.

 

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

 

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

 

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

 

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

 

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

 

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

 

(c)                                  all obligations of such Person to pay the deferred purchase price of Property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding trade accounts payable and accrued expenses related thereto arising in the ordinary course of business and excluding any lease properly classified as an operating lease in accordance with GAAP as in effect on the Issue Date);

 

(d)                                 all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction but excluding obligations with respect to letters of credit securing obligations (other than obligations described in clauses (a) through (c) of this definition and (f) and (g) of this definition) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit;

 

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

 

(f)                                   all obligations of the type referred to in clauses (a) through (e) of this definition of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is liable as obligor or Guarantor, including by means of any Guarantee;

 

(g)                                  all obligations of the type referred to in clauses (a) through (f) of this definition of other Persons secured by any Lien on any Property of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the fair market value (as determined by the Company in good faith) of such Property subject to such Lien or the amount of the obligation so secured; and

 

(h)                                 to the extent not otherwise included in this definition, the net liability under Hedging Obligations of such Person,

 

if and only to the extent that any of the preceding items (other than letters of credit, Hedging Obligations and obligations referred to in clauses (f) and (g) of this definition) would appear as a liability upon the balance sheet of the specified Person prepared in accordance with GAAP (and in the case of Disqualified Stock that does not appear as a liability upon such balance sheet, the price at which such Disqualified Stock may be redeemed by the holder thereof on the date such Disqualified Stock may first be redeemed by the holders thereof).

 

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In no event shall the term “Debt” include (i) any debt under any overdraft or cash management facility, provided that any such debt is incurred in the ordinary course of business and consistent with past practice, and is repaid in full no later than the Business Day immediately following the date on which it was incurred, (ii) any trade payable or (iii) any liability for Federal, state, local or other taxes.  The amount of Debt of any Person at any date shall be (x) the accreted value thereof in the case of any Debt that does not require current payments of interest, (y) the principal amount of such Debt and (z) the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations at such date.

 

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

 

“Defaulted Interest” has the meaning specified in Section 307.

 

“defeasance” has the meaning specified in Section 1302.

 

“Depositary” means The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Depositary shall mean each successor Depositary.

 

“Discharge of ABL Obligations” shall have the meaning given to such term in the Intercreditor Agreement.

 

“Discharge of Notes Obligations and Pari Passu Lien Obligations” shall have the meaning given to such term in the Intercreditor Agreement.

 

“Disqualified Stock” means, with respect to any Person, any Capital Stock that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, in either case at the option of the holder thereof) or otherwise:

 

(a)                                 matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;

 

(b)                                 is or may become redeemable or repurchaseable at the option of the holder thereof, in whole or in part; or

 

(c)                                  is convertible or exchangeable at the option of the holder thereof for Debt or Disqualified Stock;

 

on or prior to, in the case of clause (a), (b) or (c) of this definition, the date that is 91 days after the Stated Maturity of the Notes.  Notwithstanding the foregoing, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 1009.

 

“Disqualified Stock Dividends” means all dividends made with respect to Disqualified Stock of the Company held by Persons other than a Restricted Subsidiary other than dividends paid in Capital Stock of the Company.  The amount of any such dividend shall be equal to the quotient of such

 

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dividend divided by the difference between one and the maximum statutory federal income tax rate (expressed as a decimal number between 1 and 0) then applicable to the Company.

 

“Distribution Compliance Period” means the period of 40 consecutive days commencing on the later of (i) the date the Notes are first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S (the Company and Trustee being entitled to rely on written advice from the Purchasers with respect thereto) and (ii) the Issue Date.

 

“Dollar” and “$” means such coins or currency of the United States of America which is legal tender for payment of public and private debts.

 

“Domestic Restricted Subsidiary” means any Restricted Subsidiary other than (a) a Foreign Restricted Subsidiary, (b) a Subsidiary of a Foreign Restricted Subsidiary or (c) any special purpose entity established solely in connection with a Receivables Program or any Synthetic Lease or Sale and Leaseback Transaction with respect to the Office Campus.

 

“DTC” has the meaning set forth in Section 201(c).

 

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

 

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

 

(1)                                 the provision for taxes based on income or profits or utilized in computing net income;

 

(2)                                 Consolidated Interest Expense;

 

(3)                                 depreciation;

 

(4)                                 amortization;

 

(5)                                 any other non-cash items (other than any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period);

 

(6)                                 charges associated with integration-related expenses (but excluding any associated restructuring expenses) Incurred in such period in connection with any merger or acquisition permitted under this Indenture;

 

(7)                                 accelerated recognition of pension expenses previously deferred under FAS 87/88 in connection with early termination of SCI Systems, Inc.’s “Supplemental Retirement Plan” not to exceed $20.0 million in the aggregate;

 

(8)                                 charges associated with the repayment or redemption of the Company’s 7% Notes Due 2019; and

 

(9)                                 to the extent that GAAP requires stock-based compensation or share-based payments to be expensed, any non-cash charges associated therewith, minus

 

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

 

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

 

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

 

“Equity Offering” means (a) any public offering of Equity Interests (other than Disqualified Stock) of the Company or (b) any unregistered offering of Equity Interests (other than Disqualified Stock) (other than to a Subsidiary).

 

“European Economic Area” means the member nations of the European Economic Area pursuant to the Oporto Agreement on the European Economic Area dated May 2, 1992, as amended.

 

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any successor thereto.

 

“Event of Default” has the meaning specified in Section 501.

 

“Excess Proceeds” has the meaning specified in Section 1013.

 

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as it may be amended and any successor act thereto.

 

“Excluded Assets” means, collectively “Excluded Assets” as defined in the Security Agreement.

 

“Excluded Subsidiary” means (i) any special purpose entity formed solely in connection with a Receivables Program or in connection with any Synthetic Lease or Sale and Leaseback Transaction relating to the Office Campus, (ii) any Foreign Subsidiary Holding Company or Subsidiary of a CFC, in each case, for so long as such Person is not a guarantor of any Indebtedness of the Company or any Guarantor and (iii) at the Company’s option, any Domestic Restricted Subsidiary that has assets with a net book value equal to or less than $5.0 million and that, when taken together with all other Domestic Restricted Subsidiaries that are then Excluded Subsidiaries pursuant to this clause (iii), does not have assets with an aggregate net book value in excess of $10.0 million.

 

“Expiration Date” has the meaning specified in Section 104.

 

“Fair Market Value” means, with respect to any Property, the price that would reasonably be expected to be paid in an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction.  Fair Market Value shall be determined, except as otherwise provided,

 

(a)                                 if such Property has a Fair Market Value equal to or less than $50.0 million, by any Officer of the Company; or

 

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(b)                                 if such Property has a Fair Market Value in excess of $50.0 million, by a majority of the Board of Directors and evidenced by a Board Resolution, dated within 45 days of the relevant transaction and delivered to the Trustee.

 

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

 

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

 

“Foreign Subsidiary Holding Company” means any direct or indirect Domestic Subsidiary, substantially all of the assets of which consist of Capital Stock of one or more direct or indirect Foreign Subsidiaries that are CFCs.

 

“Global Note” means a Note that is registered in the Note Register in the name of a Depositary or a nominee thereof.

 

“Guarantee” means any obligation, contingent or otherwise, of any Person guaranteeing in any manner any Debt of any other Person; provided, however, that the term “Guarantee” shall not include:

 

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

 

(b)                                 a contractual commitment by one Person to invest in another Person for so long as such Investment is reasonably expected to constitute a Permitted Investment under clause (b) of the definition of “Permitted Investment.”

 

The term “Guarantee” used as a verb has a corresponding meaning.  The term “Guarantor” shall mean any Person Guaranteeing any obligation.

 

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

 

“Holder” means the Person in whose name any Note is registered in the Note Register.

 

“Incur” means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by merger, conversion, exchange or otherwise), extend, assume, Guarantee or become liable in respect of such Debt or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such Debt or obligation on the balance sheet of such Person (and “Incurrence” and “Incurred” shall have meanings correlative to the foregoing); provided, however, that a change in GAAP that results in an obligation of such Person that exists at such time, and is not theretofore classified as Debt, becoming Debt shall not be deemed an Incurrence of such Debt; provided, further, however, that any Debt or other obligations of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary.

 

“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof including, for all purposes of this instrument and any such supplemental indenture, the Exhibits attached to this instrument.

 

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“Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and between the ABL Agent and the Notes Collateral Agent.

 

“Interest Payment Date” means those dates specified in the Notes for the payment of interest on the Notes.

 

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

 

“Investment” by any Person means any direct or indirect loan (other than advances to customers or other persons in the ordinary course of business that are recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of such Person), advance or other extension of credit or capital contribution (by means of transfers of cash or other Property to others or payments for Property or services for the account or use of others) (but excluding commission, travel and similar advances to officers, directors and employees made in the ordinary course of business) to, or Incurrence of a Guarantee of any obligation of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Debt issued by, any other Person; provided that in no event shall the licensing or transfer of know-how or intellectual property or the providing of services, each in the ordinary course of business, be considered an Investment. If the Company or any Restricted Subsidiary sells or otherwise disposes of any Capital Stock of any direct or indirect Restricted Subsidiary such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value (as determined in good faith by the Company) of the Capital Stock of such Restricted Subsidiary not sold or disposed.

 

“Investment Grade Event” means the occurrence of the following events:

 

(a)                                 the Notes have received Investment Grade Ratings from both Rating Agencies;

 

(b)                                 no Default or Event of Default has occurred and is continuing; and

 

(c)                                  the Company has delivered to the Trustee an Officers’ Certificate certifying as to the events specified in clauses (a) and (b) of this definition.

 

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P (or the equivalent investment grade rating by another Rating Agency).

 

“Issue Date” means the date on which the Notes are initially issued pursuant to this Indenture.

 

“Lien” with respect to a Person means, with respect to any Property of such Person, any mortgage or deed of trust, pledge, hypothecation, security interest, lien, fixed or floating charge, easement (other than any easement not materially impairing usefulness or marketability), encumbrance or other security agreement of any kind or nature whatsoever on or with respect to such Property (including any Capital Lease Obligation, conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing); provided, that the term “Lien” shall not include any lease properly classified as an operating lease in accordance with GAAP.

 

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“Make-Whole Premium” means, as determined by the Company with respect to a Note on any date of redemption, the greater of:

 

(a)                                 1.0% of the principal amount of such Note; or

 

(b)                                 the excess, if any, of (i) the present value as of such redemption of (A) the principal amount of such Note on June 1, 2019 plus (B) the remaining scheduled interest payments due on such Note through June 1, 2019 (excluding accrued but unpaid interest to the date of such redemption), computed using a discount rate equal to the Treasury Rate as of such date of redemption plus 50 basis points, over (ii) the then outstanding principal of such Note.

 

The Company shall calculate or cause to be calculated the Make-Whole Premium. The Trustee shall have no duty to calculate or verify the calculations of the Make-Whole Premium.

 

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

 

“Net Available Cash” from any Asset Sale means cash payments actually received therefrom by the Company or its Restricted Subsidiaries (including any cash payments actually received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Debt or other obligations relating to the Property that is the subject of such Asset Sale or received in any other non-cash form), in each case net of:

 

(a)                                 all legal, title and recording expenses, commissions and other fees and expenses Incurred (including, without limitation, investment banking, sales commissions and relocation expenses), and all Federal, state, provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Sale;

 

(b)                                 all payments made on any Debt that is secured by any Lien upon Property that is the subject of such Asset Sale which Lien is senior in priority to the Lien, if any, on such Property securing the Notes Obligations, or by applicable law, which are repaid out of the proceeds from such Asset Sale;

 

(c)                                  all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Sale; and

 

(d)                                 any reserve for adjustment in respect of the sale price of such asset or assets, for any liabilities associated with the assets disposed of in the transaction and retained by the Company or any Restricted Subsidiary after such Asset Sale, or against any indemnification obligations associated with such transaction, in each case established in accordance with GAAP.

 

“Note” and “Notes” mean the 4.375% Senior Secured Notes due 2019, and more particularly means any Original Notes and Additional Notes authenticated and delivered under this Indenture or any supplemental indenture hereto.  For all purposes of this Indenture, the term “Notes” shall include any Additional Notes that may be issued under a supplemental indenture and, for purposes of this Indenture, both the Notes and the Additional Notes shall vote together as one series of Notes under this Indenture.

 

“Notes Collateral Agent” means U.S. Bank National Association in its capacity as “Notes Collateral Agent” under the Indenture and under the Security Documents and any successor thereto in such capacity.

 

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“Note Register” has the meaning set forth in Section 305(a)(1).

 

“Note Registrar” has the meaning set forth in Section 305(a)(1).

 

“Notes Guarantees” means Guarantees on the terms set forth in this Indenture by any Notes Guarantors of the Company’s obligations with respect to the Notes.

 

“Notes Guarantors” means each of the Company’s Domestic Restricted Subsidiaries on the Issue Date that are not Excluded Subsidiaries and any Person that becomes a Guarantor of the Company’s obligations under this Indenture and the Notes pursuant to Section 1206 or who executes and delivers a supplemental indenture to this Indenture providing for a Notes Guarantee.

 

“Notes Obligations” means all Obligations owing pursuant to the Notes, this Indenture, the Notes Guarantees and the Security Documents.

 

“Notes Priority Collateral” means all Collateral other than ABL Priority Collateral, including, to the extent not constituting Excluded Assets, all real estate, equipment and intellectual property.

 

“Notice of Default” means a written notice of the kind specified in Section 501(b).

 

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, payable under the documentation governing any Debt, including any interest, fees, expenses and other amounts, which but for the commencement of a bankruptcy or insolvency proceeding would have accrued on such obligations, whether or not a claim is allowed for such interest, fees, expenses or other amounts in the related bankruptcy proceeding.

 

“Office Campus” means the Company’s principal office campus located on North First Street in San Jose, California.

 

“Officer” means (a) the Chief Executive Officer, the President, the Chief Financial Officer or any Vice President of the Company and (b) the Treasurer or Assistant Treasurer or Secretary or Assistant Secretary of the Company.

 

“Officers’ Certificate” means a certificate signed by (a) (1) one Officer listed in clause (a) of the definition of “Officer” and (2) one Officer listed in clause (b) of the definition of “Officer,” or (b) two Officers listed in clause (a) of the definition of “Officer,” and, in either case, delivered to the Trustee.

 

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

 

“Original Notes” means the Notes issued on the Issue Date and their Successor Notes.

 

“Outstanding” when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:

 

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

 

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(b)                                 Notes, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

(c)                                  Notes, except to the extent provided in Sections 1302 and 1303, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article Thirteen; and

 

(d)                                 Notes which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor of the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver or other action, only Notes which the Trustee knows to be so owned by written notice delivered at its notice address specified in Section 105 hereof, shall be so disregarded.  Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor.

 

“pari passu,” when used with respect to the ranking of any Debt of any Person in relation to other Debt of such Person, means that each such Debt (a) either (i) is not subordinated in right of payment to any other Debt of such Person or (ii) is subordinate in right of payment to the same Debt of such Person as is the other and is so subordinate to the same extent and (b) is not subordinate in right of payment to the other or to any Debt of such Person as to which the other is not so subordinate.

 

“Pari Passu Lien Agent” means, with respect to any Pari Passu Lien Obligations, the administrative agent, trustee or other authorized representative for the holders of such Pari Passu Lien Obligations pursuant to the credit agreement, indenture or other definitive documentation therefor.

 

“Pari Passu Lien Obligations” means any Obligations in respect of Debt (other than ABL Obligations) to the extent the Liens securing such Obligations are permitted by clause (z) of the definition of Permitted Liens or solely to the extent relating to Permitted Refinancing Indebtedness, in respect of the Notes issued on the Issue Date, clause (z) of the definition of Permitted Liens or clause (l) of the definition of “Permitted Liens”; provided that (i) the holders of such Obligations, or the Pari Passu Lien Agent therefor, executes a joinder agreement to the Security Agreement in the form attached thereto agreeing to be bound thereby and by the Intercreditor Agreement and (ii) the Company has designated such Obligations as “Pari Passu Lien Obligations” under the Security Agreement.

 

“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Note on behalf of the Company, which initially shall be the Trustee.

 

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“Permitted Bond Hedge” means any customary swap, forward, future or derivative transaction or option or similar agreement that is settled (after payment of any premium or any prepayment thereunder) through the delivery of cash and/or Equity Interests of the Company and is entered into in connection with any Convertible Securities, the purpose of which is to provide for an effectively higher conversion premium (including, but not limited to, any bond hedge transaction, warrant transaction or capped call transaction).

 

“Permitted Business” means any business that is related, ancillary or complementary to the businesses of the Company and the Restricted Subsidiaries on the Issue Date or any reasonable extension thereof.

 

“Permitted Debt” is defined to include the following:

 

(a)                                 Debt of the Company evidenced by the Notes issued on the Issue Date and Debt of the Notes Guarantors under their Notes Guarantees of such Notes;

 

(b)                                 Debt of the Company or a Restricted Subsidiary under any Credit Facilities, provided that on the date of Incurrence the aggregate principal amount of the Debt to be Incurred plus all Debt previously issued pursuant to this clause (b) which remains outstanding shall not exceed $500.0 million, less (2) the amount by which any such Debt previously Incurred under this clause (b) that has been permanently reduced by the amount of Net Available Cash used to Repay Debt and not subsequently reinvested in Additional Assets or used to purchase Notes or Repay other Debt pursuant to Section 1013;

 

(c)                                  Debt of the Company or a Restricted Subsidiary in respect of Capital Lease Obligations and Purchase Money Debt, provided that:

 

(1)                                 the aggregate principal amount of such Debt does not exceed the fair market value (as determined by the Company in good faith) on the date of the Incurrence thereof in the case of a Capital Lease Obligation and on the date of the acquisition, construction, lease, improvement or installation of the underlying asset in the case of Purchase Money Debt, of the Property acquired, constructed, leased, improved or installed; and

 

(2)                                 the aggregate principal amount of all Debt Incurred pursuant to this clause (c) at any one time outstanding (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (c)) shall not exceed 10.0% of Total Assets;

 

(d)                                 Debt of the Company owing to and held by any Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that (1) if the Company is the obligor on such Debt, such Debt must be contractually subordinated in right of payment to the Notes, and (2) any subsequent issue or transfer of Capital Stock or other event that results in any such Debt being held by a Person other than the Company or a Restricted Subsidiary or any subsequent transfer of any such Debt (except to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Debt by the issuer thereof;

 

(e)                                  Debt of a Restricted Subsidiary outstanding on the date on which such Restricted Subsidiary was acquired by the Company or otherwise became a Restricted Subsidiary (other than Debt Incurred as consideration in, or to provide all or any portion of the funds or credit

 

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support utilized to consummate, the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Subsidiary of the Company or was otherwise acquired by the Company), provided the aggregate principal amount (or accreted value, as applicable) of all such Debt Incurred pursuant to this clause (e) at any time outstanding (together with all Permitted Refinancing Debt incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (e)) shall not exceed $50.0 million;

 

(f)                                   Debt under Hedging Obligations entered into by the Company or a Restricted Subsidiary for the purpose of fixing, managing or hedging interest rate, commodity or currency risk in the ordinary course of the financial management of the Company or such Restricted Subsidiary and not for speculative purposes or in connection with any Permitted Bond Hedge;

 

(g)                                  Debt in connection with one or more banker’s acceptances, bank guarantees, letters of credit, surety or performance bonds or similar obligations or security deposits provided or obtained by the Company or a Restricted Subsidiary in the ordinary course of business or in connection with contested taxes;

 

(h)                                 Debt of the Company or a Restricted Subsidiary outstanding on the Issue Date, other than Debt under the Notes and the ABL Facility;

 

(i)                                     Debt of the Company or a Restricted Subsidiary in an aggregate principal amount (or accreted value or liquidation preference, as applicable) outstanding at any one time and Incurred pursuant to this clause (i) not to exceed $150.0 million;

 

(j)                                    in addition to the Debt that may be Incurred under clause (b) of this definition, the Incurrence of Debt by one or more Foreign Restricted Subsidiaries in an aggregate principal amount (or accreted value, as applicable) at any time outstanding (together with all Permitted Refinancing Debt Incurred and then outstanding in respect of Debt previously Incurred pursuant to this clause (j)) not to exceed the greater of 10.0% of Consolidated Tangible Foreign Assets and $325.0 million, provided that;

 

(1)                                 no Default or Event of Default shall have occurred or be continuing or would be caused by such Incurrence of Debt, and

 

(2)                                 such Debt shall be used solely:

 

(A)                               to fund the working capital or used for general corporate purposes of such Foreign Restricted Subsidiary; or

 

(B)                               to pay dividends or any other distributions on or in respect of its Capital Stock or pay any Debt or other obligation owed, or make any loans or advances, in each case, to the Company or any other Restricted Subsidiary;

 

(k)                                 the Guarantee by the Company of Debt of a Restricted Subsidiary or the Guarantee by a Restricted Subsidiary of Debt of the Company or any other Restricted Subsidiary of the Company, in each case with respect to Debt that is permitted to be Incurred or permitted to be outstanding by Section 1008 or this definition of Permitted Debt; and

 

(l)                                     Permitted Refinancing Debt Incurred in respect of Debt Incurred pursuant to clause (a)(1) of Section 1008 and clauses (a), (c), (e), (h), and (j) of this definition and this clause (l).

 

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“Permitted Investment” means any Investment by the Company or a Restricted Subsidiary in:

 

(a)                                 the Company;

 

(b)                                 any Restricted Subsidiary or any Person that will, upon the making of such Investment, become a Restricted Subsidiary, provided that the primary business of such Restricted Subsidiary or such Person that will become a Restricted Subsidiary is a Permitted Business, and in each case any Investment held by such Person provided that such Investment was not acquired by such Person in contemplation of such Person becoming a Restricted Subsidiary;

 

(c)                                  any Person if as a result of such Investment such Person is merged or consolidated with or into, or transfers or conveys all or substantially all its Property to, or is liquidated into, the Company or a Restricted Subsidiary, provided that such Person’s primary business is a Permitted Business, and in each case any Investment held by such Person provided that such Investment was not acquired by such Person in contemplation of such merger, consolidation, transfer, conveyance or liquidation;

 

(d)                                 cash or Cash Equivalents;

 

(e)                                  Investments (i) of the types specified in the definition of “Cash Equivalents” but which mature on dates up to three years from the date of acquisition and (ii) consisting of corporate obligations with long-term ratings of A or better from S&P and A2 or better from Moody’s, having maturities of not more than twelve months from the date of acquisition, so long as the aggregate value of the Investments described in clauses (i) and (ii) does not exceed 20% of the value of cash and short-term investments and long-term investments of the types described in the definition of “Cash Equivalents” and this clause (e), in each case as shown on the Company’s most recent balance sheet that has been made publicly available;

 

(f)                                   receivables owing to the Company or a Restricted Subsidiary, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (and Investments obtained in exchange for or settlement of accounts receivable for which the Company or a Restricted Subsidiary has determined that collection is not likely); provided, however, that such trade terms may include such concessionary trade terms as the Company or such Restricted Subsidiary deems reasonable under the circumstances;

 

(g)                                  commission, entertainment, relocation, payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;

 

(h)                                 loans and advances to, or Guarantees of third party loans to, employees, directors and officers made in the ordinary course of business consistent with past practices of the Company or such Restricted Subsidiary and in compliance with applicable laws, provided that such loans and advances in the aggregate do not exceed $5.0 million at any one time outstanding;

 

(i)                                     any acquisition of Property solely in exchange for the issuance of Capital Stock (other than Disqualified Stock) or the transfer on a non-exclusive basis of intellectual property or know-how of the Company;

 

(j)                                    any Investment received in settlement of debts created in the ordinary course of business and owing to the Company or a Restricted Subsidiary or in satisfaction of judgments, 

 

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including pursuant to a plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or consideration received in settlement of litigation claims in tort, bankruptcy, liquidation, receivership or insolvency or otherwise;

 

(k)                                 any Person to the extent such Investment represents the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 1013;

 

(l)                                     Hedging Obligations permitted under Section 1008;

 

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

 

(n)                                 lease, utility and workers’ compensation, performance and other similar deposits arising in the ordinary course of business;

 

(o)                                 Investments existing on or contractually committed to as of the Issue Date and Investments purchased or received in exchange for such Investments, provided that any additional consideration provided by the Company or any Restricted Subsidiary in such exchange shall be not be permitted pursuant to this clause (o);

 

(p)                                 loans or advances to customers in the ordinary course of business;

 

(q)                                 any Person engaged in a Permitted Business, provided that such Investments in the aggregate do not exceed 10% of Total Assets at any one time outstanding;

 

(r)                                    the Original Notes, any Additional Notes and any Notes Guarantees with respect to the Notes; and

 

(s)                                   any Permitted Bond Hedge.

 

“Permitted Joint Venture” means any Person that is, directly or indirectly, engaged principally in a Permitted Business, and the Capital Stock (or securities convertible into Capital Stock) of which is owned by the Company and one or more Persons other than the Company or any Affiliate of the Company.

 

“Permitted Liens” means:

 

(a)                                 Liens on any assets to secure Debt permitted to be Incurred pursuant to Section 1008 under clause (b) of the definition of “Permitted Debt” and other Obligations related thereto; provided that any such Liens on the Collateral are subject to the Intercreditor Agreement;

 

(b)                                 Liens to secure Debt permitted to be Incurred pursuant to Section 1008 under clause (c) of the definition of “Permitted Debt” and other Obligations related thereto, and Liens to secure Capital Lease Obligations and Purchase Money Debt (and other Obligations related thereto) where the aggregate principal amount of such Debt at any time outstanding shall not exceed 10.0% of Total Assets, provided that, in each case, any such Lien may not extend to any Property of the Company or any Restricted Subsidiary, other than the Property acquired, constructed, improved or leased with the proceeds of such Debt and any additions, parts, attachments, fixtures, leasehold improvements, proceeds, improvements or accessions related thereto;

 

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(c)                                  Liens for taxes, assessments or governmental charges or levies on the Property of the Company or any Restricted Subsidiary if the same shall not at the time be delinquent for more than 30 days or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings, provided that any reserve or other appropriate provision that shall be required in conformity with GAAP shall have been made therefor, such contest has the effect of preventing forfeiture or sale of the property or assets subject to any such lien;

 

(d)                                 Liens imposed by law or arising by operation of law, including without limitation, landlords’, mailmen’s, suppliers’, vendors’, carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, Liens for master’s and crew’s wages and other similar laws, on the Property of the Company or any Restricted Subsidiary arising in the ordinary course of business and for payment obligations that are not more than 60 days past due or are being contested in good faith and by appropriate proceedings;

 

(e)                                  Liens on the Property of the Company or any Restricted Subsidiary Incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance or return-of-money bonds, surety or appeal bonds, letters of credit, bank guarantees or other obligations of a like nature and Incurred in the ordinary course of business;

 

(f)                                   Liens on Property at the time the Company or any Restricted Subsidiary acquired such Property, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary; provided, however, that any such Lien may not extend to any other Property of the Company or any Restricted Subsidiary; provided further, however, that such Liens shall not have been Incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such Property was acquired by the Company or any Restricted Subsidiary;

 

(g)                                  Liens on the Property of a Person existing at the time such Person becomes a Restricted Subsidiary; provided, however, that any such Lien may not extend to any other Property of the Company or any other Restricted Subsidiary that is not a direct Subsidiary of such Person; provided further, however, that any such Lien was not Incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary;

 

(h)                                 Liens Incurred or pledges or deposits made by the Company or any Restricted Subsidiary under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which the Company or any Restricted Subsidiary is party, or deposits to secure public or statutory obligations of the Company, or deposits for the payment of rent, in each case Incurred in the ordinary course of business;

 

(i)                                     utility easements, building restrictions, zoning restrictions, minor survey exceptions, easements or reservations of rights of others for licenses, rights of way and similar purposes and such other encumbrances or charges against real Property as are of a nature generally existing with respect to properties of a similar character;

 

(j)                                    Liens existing on the Issue Date not otherwise described in clauses (a) through (i) or (k) through (ii) of this definition;

 

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(k)                                 Liens not otherwise described in clauses (a) through (j)  or (l) through (ii) of this definition on the Property of any Foreign Restricted Subsidiary to secure any Debt permitted to be Incurred by such Foreign Restricted Subsidiary pursuant to clause (j) of the definition of “Permitted Debt”;

 

(l)                                     Liens on the Property of the Company or any Restricted Subsidiary to secure any Refinancing, in whole or in part, of any Debt secured by Liens referred to in clauses (f), (g), (j), (o), (p), (t), (u), (x), (z) and (aa) of this definition; provided, however, that any such Lien shall be limited to all or part of the same Property that secured the original Lien (together with improvements and accessions to such Property) and the aggregate principal amount of Debt that is secured by such Lien shall not be increased to an amount greater than the sum of:

 

(1)                                 the outstanding principal amount, or, if greater, the committed amount, of the Debt secured by Liens described under such clause at the time the original Lien became a Permitted Lien under this Indenture; and

 

(2)                                 an amount necessary to pay any fees and expenses, including premiums and defeasance costs, incurred by the Company or such Restricted Subsidiary in connection with such Refinancing;

 

(m)                             judgment Liens not giving rise to a Default or Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings that may have been initiated for the review of such judgment, decree or order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired;

 

(n)                                 Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of letters of credit, bank guarantees or banker’s acceptances issued or credited for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;

 

(o)                                 Liens securing obligations of the Company under Hedging Obligations permitted to be Incurred pursuant to Section 1008 under clause (f) of the definition of “Permitted Debt”;

 

(p)                                 Liens securing reimbursement obligations with respect to commercial letters of credit that encumber cash, documents and other Property relating to such letters of credit and proceeds thereof;

 

(q)                                 Liens on assets leased to the Company or a Restricted Subsidiary if such lease is properly classified as an operating lease in accordance with GAAP or is a Synthetic Lease or Sale and Leaseback Transaction relating to the Office Campus;

 

(r)                                    Liens arising under consignment or similar arrangements for the sale of goods in the ordinary course of business;

 

(s)                                   Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

 

(t)                                    Liens securing obligations of the Company or any Restricted Subsidiary in respect of a Receivables Program, provided that any such Lien will be limited to the Receivables Program Assets under such Receivables Program;

 

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(u)                                 Liens on cash securing obligations of the Company or a Restricted Subsidiary in connection with or under a Synthetic Lease or Sale and Leaseback Transaction relating to the Office Campus;

 

(v)                                 Liens in favor of the Company;

 

(w)                               Liens on Capital Stock of Unrestricted Subsidiaries;

 

(x)                                 Liens securing other Debt not exceeding $10.0 million at any time outstanding;

 

(y)                                 Liens on assets not constituting Collateral arising out of transactions relating to tax-planning strategies of the Company and its Restricted Subsidiaries; provided, that all such transactions are between or among Restricted Subsidiaries, the Company and any trustee, transfer agent or escrow agent relating to such tax-planning strategies, or any combination of the foregoing parties;

 

(z)                                  Liens on the Collateral securing Indebtedness constituting Pari Passu Lien Obligations; provided that after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, either (i) the aggregate principal amount of such Indebtedness (together with any Refinancing of Indebtedness permitted by this clause (z) that is secured by a Lien permitted by clause (l) above) does not exceed $150.0 million or (ii) the Secured Leverage Ratio would be no greater than 2.50 to 1.0;

 

(aa)                          Liens securing the Notes Obligations in respect of the Notes and Notes Guarantees issued on the Issue Date;

 

(bb)                          (i) leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries, (ii) any interest or title of a lessor under any leases or subleases entered into by the Company or any Restricted Subsidiary in the ordinary course of business, and (iii) any interest of co-sponsors, co-owners or co-developers of intellectual property;

 

(cc)                            Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching to commodity trading accounts or other brokerage accounts in the ordinary course of business, (iii) in favor of banking institutions by law or contract encumbering deposits which are customary in the banking industry and (iv) Liens securing cash management obligations arising in the ordinary course of business;

 

(dd)                          customary Liens in favor of trustees, collateral agents and escrow agents securing obligations owing to such Persons in such capacities;

 

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

 

(ff)                              Liens arising from UCC financing statements regarding operating leases entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;

 

(gg)                            Liens arising by law or contract on insurance policies and the proceeds thereof to secure premiums thereunder;

 

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(hh)                          Liens on cash and Cash Equivalents arising from repurchase obligations referred to in clause (d) of the definition of Cash Equivalents; and

 

(ii)                                  deposits as security and liens securing surety and appeal bonds, letters of credit and similar obligations in connection with contested taxes or contested import or customs duties.

 

“Permitted Refinancing Debt” means any Debt that Refinances any other Debt, including any successive Refinancings, so long as:

 

(a)                                 such Debt is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of:

 

(1)                                 the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) and all accrued interest then outstanding of the Debt being Refinanced; and

 

(2)                                 an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such Refinancing;

 

(b)                                 the Average Life of such Debt is equal to or greater than the Average Life of the Debt being Refinanced;

 

(c)                                  the Stated Maturity of such Debt is no earlier than the Stated Maturity of the Debt being Refinanced; and

 

(d)                                 the new Debt shall not be senior in right of payment to the Debt that is being Refinanced;

 

provided, however, that Permitted Refinancing Debt shall not include:

 

(1)                                 Debt of a Subsidiary that is not a Notes Guarantor that Refinances Debt of the Company; or

 

(2)                                 Debt of the Company or a Restricted Subsidiary that Refinances Debt of an Unrestricted Subsidiary.

 

“Person” means any individual, corporation, company (including any limited liability company), association, partnership, joint venture, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

 

“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.

 

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

 

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“Preferred Stock Dividends” means all dividends (other than dividends paid in Capital Stock of the Company) made with respect to Preferred Stock of Restricted Subsidiaries held by Persons other than the Company or a Wholly Owned Restricted Subsidiary.  The amount of any such dividend shall be equal to the quotient of such dividend divided by the difference between one and the maximum statutory federal income rate (expressed as a decimal number between 1 and 0) then applicable to the issuer of such Preferred Stock.

 

“Prepayment Offer” has the meaning specified in Section 1013(d).

 

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

 

“Property” means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including Capital Stock in, and other securities of, any other Person.  For purposes of any calculation required pursuant to this Indenture, the value of any Property shall be its fair market value.

 

“Purchase Agreement” means the Purchase Agreement dated May 20, 2014 among the Company, the Guarantors named therein and the Purchasers.

 

“Purchase Date” has the meaning specified in Section 1013(d).

 

“Purchase Money Debt” means Debt:

 

(a)                                 consisting of the deferred purchase price of Property, conditional sale obligations, obligations under any title retention agreement, other purchase money obligations and obligations in respect of industrial revenue bonds, in each case where the maturity of such Debt does not exceed the anticipated useful life of the Property being financed; or

 

(b)                                 Incurred to finance all or any part of the purchase price or cost of an acquisition, construction, improvement, installation or lease by the Company or a Restricted Subsidiary of Property used in the business of the Company and its Restricted Subsidiaries, including additions and improvements thereto;

 

provided, however, that such Debt is Incurred within 180 days after the acquisition, construction, improvement, installation or lease of such Property by the Company or such Restricted Subsidiary.

 

“Purchase Price” has the meaning specified in Section 1013(d).

 

“Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and Deutsche Bank Securities Inc.

 

“Rating Agency” means Moody’s and S&P (or, if either such entity ceases to rate the Notes for reasons outside the control of the Company, then in place of that entity, any other securities rating organization nationally recognized in the United States and selected by the Company as a replacement agent).

 

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

 

“Receivables Program Assets” means all of the following Property and interests in Property, including any undivided interest in any pool of any such Property or interests, whether now existing or existing in the future or hereafter arising or acquired:

 

(a)                                 accounts (as defined in the UCC or any similar or equivalent legislation as in effect in any applicable jurisdiction);

 

(b)                                 accounts receivable, and, to the extent evidencing or relating to any accounts or accounts receivable, general intangibles, instruments, contract rights, documents and chattel paper (including, without limitation, all rights to payment created by or arising from sales of goods, leases of goods or the rendition of services, no matter how evidenced, whether or not earned by performance);

 

(c)                                  all unpaid sellers’ or lessors’ rights (including, without limitation, rescission, replevin, reclamation and stoppage in transit) relating to any of the foregoing or arising therefrom;

 

(d)                                 all rights to any goods or merchandise represented by any of the foregoing;

 

(e)                                  all reserves and credit balances with respect to any such accounts receivable or account debtors;

 

(f)                                   all letters of credit, security or Guarantees of any of the foregoing;

 

(g)                                  all insurance policies or reports relating to any of the foregoing;

 

(h)                                 all collection or deposit accounts containing solely the proceeds of any of the foregoing;

 

(i)                                     all books and records relating to any of the foregoing; and

 

(k)                                 all proceeds of any of the foregoing.

 

“Redemption Date” when used with respect to any Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.

 

“Refinance” means, in respect of any Debt, to refinance, extend, renew, defease, amend, modify, supplement, restructure, replace, refund or Repay, or to issue other Debt, in exchange or replacement for, such Debt.  “Refinanced” and “Refinancing” shall have correlative meanings.

 

“Regular Record Date” has the meaning specified in the form of Note attached as Exhibit A.

 

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

 

“Regulation S Certificate” means a certificate substantially in the form set forth in Exhibit B attached to this Indenture.

 

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“Regulation S Global Note” has the meaning specified in Section 201.

 

“Regulation S Legend” means a legend substantially in the form of the legend required in the form of Note set forth in Section 202 to be placed upon a Regulation S Note.

 

“Regulation S Note” means a Note that is required pursuant to Section 305(c) of this Indenture to bear a Regulation S Legend and that is a restricted security within the meaning of Rule 144.  Such term includes the Regulation S Global Note.

 

“Reinstatement Date” has the meaning specified in Section 1022.

 

“Related Person” has the meaning specified in Section 1407.

 

“Repay” means, in respect of any Debt, to repay, prepay, repurchase, redeem, legally defease or otherwise retire such Debt.  “Repayment” and “Repaid” shall have correlative meanings.  For purposes of Section 1013, Debt shall be considered to have been Repaid only to the extent the related loan commitment, if any, shall have been permanently reduced in connection therewith.

 

“Responsible Officer,” when used with respect to the Trustee or the Notes Collateral Agent, as applicable, means any officer in the Corporate Trust Office of the Trustee or Notes Collateral Agent, as the case may be, with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter related to this Indenture, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

“Restricted Global Note” has the meaning specified in Section 201.

 

“Restricted Notes” means a restricted security within the meaning of Rule 144 and all Notes required pursuant to Section 305(c) to bear a Restricted Notes Legend.  Such term includes the Restricted Global Note.

 

“Restricted Notes Certificate” means a certificate substantially in the form set forth in Exhibit C.

 

“Restricted Notes Legend” means a legend substantially in the form of the legend required in the form of Note set forth in Section 202 to be placed upon a Restricted Note.

 

“Restricted Payment” means:

 

(a)                                 any dividend or distribution (whether made in cash, securities or other Property) declared or paid on or with respect to any shares of Capital Stock of the Company or any Restricted Subsidiary (including any such payment in connection with any merger or consolidation with or into the Company or any Restricted Subsidiary), except for any dividend or distribution that is made solely to the Company or a Restricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, to the other shareholders of such Restricted Subsidiary on a pro rata basis or on a basis that results in the receipt by the Company or a Restricted Subsidiary of dividends or distributions of greater value than it would receive on a pro rata basis) or any dividend or distribution payable solely in shares of Capital Stock (other than Disqualified Stock) of the Company;

 

(b)                                 the purchase, repurchase, redemption, acquisition or retirement for value of any Capital Stock of the Company (other than from a Restricted Subsidiary);

 

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(c)                                  the purchase, repurchase, redemption, acquisition or retirement for value, prior to the earliest of the Stated Maturity or the date for any sinking fund or amortization or other installment payment, of any Subordinated Debt (other than the purchase, repurchase, redemption, acquisition or retirement of any Subordinated Debt purchased in anticipation of satisfying a payment at the earliest of the Stated Maturity, or the date of any sinking fund or amortization or other installment obligation, in each case due within one year of the date of purchase, repurchase, redemption, acquisition or retirement); or

 

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

 

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

 

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

 

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

 

“Rule 144A Notes” means (i) in the case of the Original Notes, the Notes purchased by the Purchasers from the Company pursuant to the Purchase Agreement, other than the Regulation S Notes, and (ii) in the case of Additional Notes, any Additional Notes purchased from the Company for resale pursuant to Rule 144A.

 

“S&P” means Standard & Poor’s Ratings Service or any successor to the rating agency business thereof.

 

“Sale and Leaseback Transaction” means any direct or indirect arrangement relating to Property now owned or hereafter acquired whereby the Company or a Restricted Subsidiary transfers such Property to another Person and the Company or a Restricted Subsidiary leases it from such Person.  Neither a transaction solely between the Company and any of its Restricted Subsidiaries or between any Restricted Subsidiaries of the Company, nor a sale and leaseback transaction that is consummated within 180 days after the purchase of the assets subject to such transaction, shall be considered a Sale and Leaseback Transaction.

 

“Secured Leverage Ratio” means, as of any date of determination, the ratio of:

 

(a)                                 the outstanding Debt of the Company and the Restricted Subsidiaries on a consolidated basis that is secured by any Liens on any assets of the Company or any of its Restricted Subsidiaries, to

 

(b)                                 the aggregate amount of EBITDA for the most recently ended four consecutive fiscal quarters for which financial statements have been made publicly available;

 

provided, however, that:

 

if

 

(A)                               since the beginning of such period but prior to such date of determination the Company or any Restricted Subsidiary shall have made any Asset Sale or an acquisition of Property which constitutes all or substantially all of an operating unit of a business; or

 

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(B)                               since the beginning of such period but prior to such date of determination any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period) shall have made such an Asset Sale or acquisition;

 

EBITDA for such period shall be calculated after giving pro forma effect to such Asset Sale or acquisition as if such Asset Sale or acquisition had occurred on the first day of such period.

 

“Securities Act” means the U.S. Securities Act of 1933, as amended from time to time, and (unless the context otherwise requires) includes the rules and regulations of the Commission promulgated thereunder.

 

“Securities Act Legend” means a Restricted Notes Legend or a Regulation S Legend.

 

“Security Agreement” means the security agreement to be dated the Issue Date among the Notes Collateral Agent, the Company and the Notes Guarantors from time to time party thereto.

 

“Security Documents” means the Security Agreement and all of the security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust and other agreements or instruments, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time, evidencing or creating or purporting to create any security interests to secure any Notes Obligations and Pari Passu Lien Obligations.

 

“Security Document Order” has the meaning specified in Section 1407.

 

“Senior Debt” means:

 

(a)                                 all obligations consisting of the principal, premium, if any, and accrued and unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not such post-filing interest is allowed in such proceeding) in respect of:

 

(1)                                 Debt of the Company for borrowed money; and

 

(2)                                 Debt of the Company evidenced by notes, debentures, bonds or other similar instruments permitted under this Indenture for the payment of which the Company is responsible or liable;

 

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

 

(c)                                  all obligations of the Company:

 

(1)                                 for the reimbursement of any obligor on any letter of credit, bankers’ acceptance or similar credit transaction;

 

(2)                                 under Hedging Obligations; or

 

(3)                                 issued or assumed as the deferred purchase price of Property and all conditional sale obligations of the Company and all obligations under any title retention agreement permitted under this Indenture; and

 

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(d)                                 all obligations of other Persons of the type referred to in clauses (a), (b) and (c) of this definition for the payment of which the Company is responsible or liable as Guarantor;

 

provided, however, that Senior Debt shall not include:

 

(1)                                 Debt of the Company that is by its terms subordinate in right of payment to the Notes, including any Subordinated Debt;

 

(2)                                 any Debt Incurred in violation of the provisions of this Indenture;

 

(3)                                 accounts payable or any other obligations of the Company to trade creditors created or assumed by the Company in the ordinary course of business in connection with the obtaining of materials or services (including Guarantees thereof or instruments evidencing such liabilities);

 

(4)                                 any liability for Federal, state, local or other taxes owed or owing by the Company;

 

(5)                                 any obligation of the Company to any Subsidiary; or

 

(6)                                 any obligations with respect to any Capital Stock of the Company.

 

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission.  In no event shall an Unrestricted Subsidiary be considered a Significant Subsidiary for purposes of this definition.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.

 

“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption or repurchase provision (but excluding any provision providing for the redemption or repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred).

 

“Subordinated Debt” means any Debt of the Company or any Notes Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is subordinate or junior in right of payment to the Notes or the applicable Notes Guarantee, as the case may be, pursuant to a written agreement to that effect.  No Debt of the Company or a Notes Guarantor shall be deemed to be subordinated in right of payment to any other Debt of the Company or such Notes Guarantor solely by virtue of any Liens, Guarantees, maturity of payments or structural subordination.

 

“Subsidiary” means, in respect of any Person, any corporation, company (including any limited liability company), association, partnership, joint venture or other business entity of which a majority of the total voting power of the Voting Stock is at the time owned or controlled, directly or indirectly, by:

 

(a)                                 such Person;

 

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

 

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(c)                                  one or more Subsidiaries of such Person.

 

“Successor Note” of any particular Note means every Note issued after, and evidencing all or a portion of the same debt as that evidenced by, such particular Note; and for the purposes of this definition, any Note authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.

 

“Surviving Person” has the meaning set forth in Section 801.

 

“Suspended Covenants” has the meaning specified in Section 1022.

 

“Suspension Period” means any period or periods beginning on the date of an Investment Grade Event and ending on the earlier of (A) the date one or both Rating Agencies withdraw their ratings or downgrade the ratings assigned to the Notes below Investment Grade Ratings or (B) the date on which a Default or Event of Default occurs and is continuing.

 

“Synthetic Lease” means an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, for U.S. federal income tax purposes, is characterized as the indebtedness of such Person (without regard to accounting treatment) and any related documents including any refinancings, extensions, renewals, defeasance, amendments, modifications, supplements, restructuring, replacements, refundings, repayments, payments, purchases, redemption or retirements, or the entering into of other such leases or agreements, in exchange or replacement for, such agreement or lease.

 

“Total Assets” means, as of any date of determination, the amount that would appear on a consolidated balance sheet of the Company and its consolidated Restricted Subsidiaries as the total assets.

 

“Treasury Rate” means, as obtained by the Company, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as complied 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 (of, 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 June 1, 2019; provided, however, that if the period from the Redemption Date to June 1, 2019 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest 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 June 1, 2019 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905; provided, however, that, in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

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

 

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“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Notes Collateral Agent’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.

 

“United States” or “U.S.” means the United States of America (including the States thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

“Unrestricted Notes Certificate” means a certificate substantially in the form set forth in Exhibit D.

 

“Unrestricted Subsidiary” means (i) on the Issue Date, Saratoga Speed Inc., a Delaware corporation, and (ii) any Subsidiary of the Company that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, in the case of this clause (ii), but only to the extent that such Subsidiary at the time of such designation:

 

(a)                                 is a Person with respect to which neither the Company nor any Restricted Subsidiary has an obligation to (1) subscribe for additional Capital Stock or (2) maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;

 

(b)                                 has no Debt other than Debt:

 

(1)                                 as to which neither the Company nor any of its Restricted Subsidiaries (A) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Debt), (B) is directly or indirectly liable as a Guarantor or otherwise, or (C) constitutes the lender; provided, however, the Company or a Restricted Subsidiary may loan, advance or extend credit to, or Guarantee the Debt of, an Unrestricted Subsidiary that is permitted under Sections 1008 and 1009;

 

(2)                                 no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Debt (other than the Notes, the applicable Notes Guarantees or any Guarantee permitted by the proviso to paragraph (1) of this clause (b)) of the Company or any of its Restricted Subsidiaries, in an aggregate amount greater than $50.0 million or its foreign currency equivalent at the time, to declare a default on such other Debt or cause the payment thereof to be accelerated or payable prior to its Stated Maturity; and

 

(3)                                 as to which the lenders have been notified in writing or have otherwise agreed in writing that they will not have any recourse to the stock or other Property of the Company or any Restricted Subsidiary, except for Debt that has been Guaranteed by the Company or any Restricted Subsidiary as permitted by the proviso to paragraph (1) of this clause (b);

 

(c)                                  does not own any Capital Stock, or hold any Lien on any Property of, the Company or any Restricted Subsidiary; and

 

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(d)                                 is not a party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that could reasonably be expected to be obtained at the time from any Person that is not an Affiliate of the Company or any Restricted Subsidiary.

 

Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted under Section 1009.  If at any time any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Debt of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date, and, if such Debt is not permitted to be Incurred as of such date under the covenant described under Section 1008, the Company shall be in default of such covenant.  The Board of Directors may at any time designate an Unrestricted Subsidiary to be a Restricted Subsidiary; provided that (1) all Liens and Debt of such Unrestricted Subsidiary outstanding immediately following such designation, would, if Incurred at such time, have been permitted to be Incurred under this Indenture, and (2) no Default or Event of Default would occur or be continuing following such designation.  The term “Unrestricted Subsidiary” shall also include any Subsidiary of an Unrestricted Subsidiary.

 

“U.S. Dollar Equivalent” means, with respect to any monetary amount in a currency other than the U.S. dollar, at or as of any time for the determination thereof, the amount of U.S. dollars obtained by converting such foreign currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable foreign currency as quoted by Reuters (or, if Reuters ceases to provide such spot quotations, by any other reputable service as is providing such spot quotations, as selected by the Company) at approximately 11:00 a.m. (New York City time) on a day not more than two Business Days prior to such determination.

 

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

 

“U.S. Person” has the meaning set forth in Rule 902(k) under the Securities Act.

 

“Vice President,” when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

 

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

 

“Wholly Owned Restricted Subsidiary” means, at any time, a Restricted Subsidiary, all the Capital Stock of which (except directors’ qualifying shares or shares required by applicable law to be held by third persons) is at such time owned, directly or indirectly, by the Company and its other Wholly Owned Restricted Subsidiaries.

 

SECTION 102.                                 Compliance Certificates and Opinions.

 

(a)                                 Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and

 

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opinions as may be required under the Trust Indenture Act.  Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirement set forth in this Indenture.  The Trustee and Notes Collateral Agent shall be fully protected in relying upon such Officers’ Certificate or Opinion of Counsel.

 

(b)                                 Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include (in form reasonably satisfactory to the Trustee):

 

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

 

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

 

(3)                                 a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (which, in the case of an Opinion of Counsel, may be limited to reliance on an Officers’ Certificate as to matters of fact); and

 

(4)                                 a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

SECTION 103.                                 Form of Documents Delivered to Trustee.

 

(a)                                 In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

(b)                                 Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

(c)                                  Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

SECTION 104.                                 Acts of Holders; Record Date.

 

(a)                                 Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by any agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become

 

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effective when such instrument or instruments are received by the Trustee and, where it is hereby expressly required, to the Company.  The Trustee shall promptly deliver to the Company copies of all such instruments delivered to the Trustee.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104.

 

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

 

(c)                                  The ownership of Notes (including the principal amount and serial numbers of Notes held by any Person, and the date of holding the same) shall be proved by the Note Register.

 

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

 

(e)                                  The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Notes; provided that the Company may not set a record date for, and the provisions of this subsection shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in subsection (f).  If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such matter referred to in the foregoing sentence, the record date for any such matter shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 701) prior to such first solicitation.  If any record date is set pursuant to this subsection, the Holders of Outstanding Notes on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date.  Nothing in this subsection (e) shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this subsection (e) (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this subsection shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken.  Promptly after any record date is set pursuant to this subsection, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 106.

 

(f)                                   The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the giving or making of (1) any Notice of Default, (2) any declaration of acceleration referred to in Section 502, (3) any request to institute proceedings referred to

 

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in Section 507 or any direction referred to in Section 512.  If any record date is set pursuant to this subsection, the Holders of Outstanding Notes on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date.  Nothing in this subsection shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this subsection (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this subsection shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken. Promptly after any record date is set pursuant to this subsection, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder in the manner set forth in Section 106.

 

(g)                                  With respect to any record date set pursuant to this Section 104, the party hereto which sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder in the manner set forth in Section 106, on or prior to the existing Expiration Date.  If an Expiration Date is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this subsection.  Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

(h)                                 Without limiting the foregoing provisions, a Holder entitled hereunder to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

 

SECTION 105.                                 Notices, Etc., to Trustee, Notes Collateral Agent and Company.

 

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(a)                                 the Trustee or the Notes Collateral Agent by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee and Notes Collateral Agent at its respective Corporate Trust Office, Attention:  Corporate Trust Services (Sanmina 4.375% Senior Secured Notes due 2019).

 

(b)                                 the Company by the Trustee, the Notes Collateral Agent or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the Recitals to this Indenture or at any other address previously furnished in writing to the Trustee by the Company.

 

SECTION 106.                                 Notice to Holders; Waiver.

 

(a)                                 Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-

 

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class postage prepaid, or delivered by hand or overnight courier, to each Holder affected by such event, at his address as it appears in the Note Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice, with a copy to Trustee or the Notes Collateral Agent at the same time, and delivered to the Trustee  or the Notes Collateral Agent in the manner provided in clause (a) of Section 105.  In any case where notice to Holders is given by mail, neither the failure to mail or deliver by hand or overnight courier such notice, nor any defect in any notice so mailed or delivered by hand or overnight courier, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee and the Notes Collateral Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

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

 

(c)                                  Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee) pursuant to the standing instructions from such Depositary.

 

SECTION 107.                                 Conflict with Trust Indenture Act.

 

Except as provided in Section 1409, until such time as this Indenture shall be qualified under the Trust Indenture Act, this Indenture, the Company and the Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act to the same extent as would be the case if this Indenture were so qualified on the date hereof.  If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control.  If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.

 

SECTION 108.                                 Effect of Headings and Table of Contents.

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 109.                                 Successors and Assigns.

 

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

 

SECTION 110.                                 Separability Clause.

 

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

 

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SECTION 111.                                 Benefits of Indenture.

 

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

 

SECTION 112.                                 Governing Law.

 

THIS INDENTURE, THE NOTES AND EACH NOTATION OF A NOTES GUARANTEE DELIVERED PURSUANT TO SECTION 1202 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

SECTION 113.                                 Legal Holidays.

 

In any case where any Interest Payment Date, Redemption Date, Purchase Date or Stated Maturity of any Note shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date or Purchase Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Purchase Date or Stated Maturity, as the case may be, if and to the extent the required payment is made on the next succeeding Business Day.

 

SECTION 114.                                 Indenture and Securities Solely Corporate Obligations.

 

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

 

SECTION 115.                                 Counterparts.

 

This Indenture may be executed in any number of counterparts, each of which shall be original; but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Indenture by telecopier, facsimile or other electronic transmission (i.e. a “pdf’ or “tif”) shall be effective as delivery of a manually executed counterpart thereof.

 

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ARTICLE TWO
 NOTE FORMS

 

SECTION 201.                                 Forms Generally.

 

(a)                                 The Notes and the Trustee’s certificates of authentication shall be in substantially the form of Exhibit A attached hereto, the terms of which are incorporated in and made a part of this Indenture.  Each Note shall include the Notes Guarantee in the form of Exhibit E attached hereto, executed by the Notes Guarantors existing on the date of issuance of such Note, the terms of which are incorporated in and made a part of this Indenture.  The Notes may have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange, any organizational document or governing instrument or applicable law, or as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of the Notes.  Any portion of the text of a Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.

 

(b)                                 The definitive Notes shall be printed or produced in any other manner, provided that such manner is permitted by the rules of any securities exchange on which the Notes may be listed, all as determined by the Officers executing such Notes, as evidenced by their execution of such Notes.

 

(c)                                  Upon their original issuance, Rule 144A Notes shall be issued in the form of one or more Global Notes registered in the name of The Depository Trust Company, a New York Corporation (including its direct and indirect participants, “DTC”), as Depositary, or its nominee and deposited with the Trustee at its Corporate Trust Office, as custodian for DTC, for credit by DTC to the respective accounts of beneficial owners of the Notes represented thereby (or such other accounts as they may direct) in accordance with the rules thereof.  Such Global Notes, together with their Successor Notes (to the extent issued in the form of Global Note other than the Regulation S Global Note), are collectively herein called the “Restricted Global Note.”  The aggregate principal amount of the Restricted Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, in connection with a corresponding decrease or increase, if applicable, in the aggregate principal amount of the Regulation S Global Note, as provided in Section 305.

 

(d)                                 Upon their original issuance, Regulation S Notes (herein called the “Regulation S Global Note”) shall be issued in the form of one or more Global Notes registered in the name of DTC, as Depositary, or its nominee and deposited with the Trustee at its Corporate Trust Office, as custodian for DTC, for credit by DTC to the respective accounts of beneficial owners of the Notes represented thereby (or such other accounts as such beneficial owners may direct) in accordance with the rules thereof.  The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, in connection with a corresponding decrease or increase, if applicable, in the aggregate principal amount of the Restricted Global Note, as provided in Section 305.

 

SECTION 202.                                 Restrictive Legends.

 

[Include if Note is a Restricted Note or a Regulation S Note — THIS NOTE AND THE ASSOCIATED GUARANTEES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE 

 

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OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]

 

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

 

[Include if Note is a Global Note and DTC is the Depositary - UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (INCLUDING ITS DIRECT ANY INDIRECT PARTICIPANTS, “DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

 

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ARTICLE THREE
 THE NOTES

 

SECTION 301.                                 Title and Terms.

 

(a)                                 Subject to the provisions of this Indenture and applicable law, the aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is unlimited.  The Company may from time to time issue Additional Notes pursuant to a Board Resolution and subject to Section 312.

 

(b)                                 The Notes (including Additional Notes) shall be known and designated as the “4.375% Senior Secured Notes due 2019” of the Company.  The terms and provisions contained in the form of the Notes annexed as Exhibit A constitute, and are hereby expressly made, a part of the Indenture.

 

(c)                                  The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of the Company in United States, maintained for such purpose or at any other office or agency maintained by the Company for such purpose (which shall initially be an office or agency of the Trustee); provided, however, that at the option of the Company interest may be paid (1) by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register or (2) by wire transfer to an account located in the United States maintained by the payee.

 

(d)                                 Holders shall have the right to require the Company to purchase their Notes, in whole or in part, in the event of a Change of Control pursuant to Section 1015.  The Notes shall be subject to repurchase by the Company pursuant to a Prepayment Offer as provided in Section 1013.

 

(e)                                  The Notes shall be redeemable as provided in Article Eleven and in the Notes.

 

(f)                                   The due and punctual payment of principal of, and premium, if any, and interest on the Notes payable by the Company is irrevocably and unconditionally guaranteed, to the extent set forth herein, by each of the Notes Guarantors.

 

(g)                                  The Notes shall be subject to defeasance at the option of the Company as provided in Article Thirteen.

 

(h)                                 The Notes do not have the benefit of any sinking fund obligation.

 

(i)                                     Unless the context otherwise requires, the Original Notes and the Additional Notes shall constitute one class and series of securities for all purposes under this Indenture, including with respect to any amendment, waiver, acceleration or other Act of Holders or, redemption, Prepayment Offer or Change of Control Offer.

 

SECTION 302.                                 Denominations.

 

The Notes shall be issuable only in registered form without coupons and only in minimum principal amounts of $2,000 at maturity and any integral multiple of $1,000 in excess thereof.

 

SECTION 303.                                 Execution, Authentication, Delivery and Dating.

 

(a)                                 The Notes shall be executed on behalf of the Company by any two of the Chairman of the Board, its Chief Executive Officer, its President, its Chief Financial Officer, its Corporate Secretary, 

 

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any Vice President, any Assistant Secretary, the Treasurer or any Assistant Treasurer.  The signature of any of these officers on the Notes may be manual or facsimile.

 

(b)                                 Notes bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.

 

(c)                                  At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Original Notes or Additional Notes (subject to Section 312) executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Original Notes or Additional Notes; and the Trustee or Authenticating Agent in accordance with such Company Order shall authenticate and deliver such Original Notes or Additional Notes as in this Indenture provided and not otherwise.

 

(d)                                 Each Note shall be dated the date of its authentication.

 

(e)                                  No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for on the form of Note attached hereto as Exhibit A, executed by the Trustee or Authenticating Agent by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

 

(f)                                   In the case of any transaction that satisfies the requirements of Section 801 in which the Company is not the Surviving Person, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Surviving Person, be exchanged for other Notes executed in the name of the Surviving Person with such changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Note surrendered for such exchange and of like principal amount; and the Trustee upon Company Order of the Surviving Person, shall authenticate and deliver replacement Notes as specified in such request for the purpose of such exchange.  If replacement Notes shall at any time be authenticated and delivered in any new name of a Surviving Person pursuant to this Section 303 in exchange or substitution for or upon registration of transfer of any Notes, such Surviving Person, at the option of any Holder but without expense to such Holder, shall provide for the exchange of all Notes at the time outstanding held by such Holder for Notes authenticated and delivered in such new name.

 

SECTION 304.                                 Temporary Notes.

 

(a)                                 Pending the preparation of definitive Notes, the Company may execute, and upon Company Order the Trustee or Authenticating Agent shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Note may determine, as evidenced by their execution of such Notes.

 

(b)                                 If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay.  After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at any office or agency of the Company designated pursuant to Section 1002, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Notes the Company shall execute and the Trustee or Authenticating Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of 

 

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authorized denominations.  Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes.

 

SECTION 305.                                 Registration and Registration of Transfer and Exchange Generally; Certain Transfers and Exchanges; Securities Act Legend; Provisions Applying to Global Notes.

 

(a)                                 General Provisions Regarding Registration and Registration of Transfer and Exchange.

 

(1)                                 The Notes are issuable only in registered form.  The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency designated pursuant to Section 1002 being herein sometimes collectively referred to as the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers and exchanges of Notes.  The Note Register will be in written form or any other form capable of being converted into written form within a reasonable time.  The Trustee is hereby appointed “Note Registrar” for the purpose of registering Notes and transfers and exchanges of Notes as herein provided.  Such Note Register shall distinguish between Original Notes and the Additional Notes.

 

(2)                                 Subject to the other provisions of this Indenture regarding restrictions on transfer, upon surrender for registration of transfer of any Note at an office or agency of the Company designated pursuant to Section 1002 for such purpose, the Company shall execute, and the Trustee or Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount bearing such restrictive legends as may be required by this Indenture.

 

(3)                                 At the option of the Holder, and subject to the other provisions of this Section 305, Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required hereunder, upon surrender of the Notes to be exchanged at such office or agency.  Whenever any Notes are so surrendered for exchange, and subject to the other provisions of this Section 305, the Company shall execute, and the Trustee or Authenticating Agent shall authenticate and deliver, the Notes which the Holder making the exchange is entitled to receive.

 

(4)                                 All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same Debt, and (except for the differences between Original Notes and Additional Notes provided for in this Indenture) entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.

 

(5)                                 Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Note Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.

 

(6)                                 No service charge shall be made for any registration of transfer or exchange of Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 304, 906 or 1108 or in accordance with any Prepayment Offer pursuant to Section 1013 or a Change of Control Offer pursuant to Section 1015, not involving any transfer.

 

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(7)                                 The Company and the Trustee shall not be required (i) to issue, register the transfer of or exchange any Note during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Notes selected for redemption under Section 1104 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

(b)                                 Certain Transfers and Exchanges.  Notwithstanding any other provisions of this Indenture or the Notes, transfers and exchanges of Notes and beneficial interests in a Global Note shall be made only in accordance with this subsection 305(b).  Transfers and exchanges subject to this subsection 305(b) shall also be subject to the other provisions of this Indenture that are not inconsistent with this subsection 305(b).

 

(1)                                 Restricted Global Note to Regulation S Global Note.  Subject to Section 201(d), if the holder of a beneficial interest in a Restricted Global Note wishes at any time to transfer such interest to a Person who is required or permitted to take delivery thereof in the form of a beneficial interest in a Regulation S Global Note, such transfer may be effected, subject to the rules and procedures of the Depositary, Euroclear and Clearstream, in each case to the extent applicable (the “Applicable Procedures”), only in accordance with the provisions of this subclause 305(b)(1).  Upon receipt by the Trustee, as Note Registrar, of (as applicable) (A) written instructions given in accordance with the Applicable Procedures from any member of, or direct participants in, the Depositary (“Agent Members”) directing the Trustee to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in such Regulation S Global Note in a principal amount equal to that of the beneficial interest in the Restricted Global Note to be so transferred and debited, (B) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Agent Member to be debited for, such beneficial interest and (C) a Regulation S Certificate, substantially in the form of Exhibit B hereto given by the holder of such beneficial interest, the principal amount of such Restricted Global Note shall be reduced, and the principal amount of such Regulation S Global Note shall be increased, by the principal amount of the beneficial interest in the Restricted Global Note to be so transferred, in each case by means of an appropriate adjustment on the records of the Trustee, as Note Registrar, and the Trustee, as Note Registrar, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Agent Member for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Regulation S Global Note having a principal amount equal to the amount so transferred and debit or cause to be debited the Restricted Global Note.

 

(2)                                 Regulation S Global Note to Restricted Global Note.  Subject to Section 201(d), if the holder of a beneficial interest in Regulation S Global Note wishes at any time to transfer such interest to a Person who is required or permitted to take delivery thereof in the form of a beneficial interest in a Restricted Global Note, such transfer may be effected, subject to the Applicable Procedures, only in accordance with this subclause 305(b)(2), provided that no transfers from a Regulation S Global Note to a Restricted Global Note shall be allowed during the Distribution Compliance Period.  Upon receipt by the Trustee, as Note Registrar, of (as applicable) (A) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Trustee to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in a Restricted Global Note in a principal amount equal to that of the beneficial interest in a Regulation S Global Note to be so transferred and debited, (B) a written order given in accordance with the Applicable Procedures containing information regarding the 

 

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account of the Agent Member to be credited with, and the account of the Agent Member (and, if applicable, the Euroclear or Clearstream account, as the case may be) to be debited for, such beneficial interest and (C) a Restricted Notes Certificate, substantially in the form of Exhibit C hereto given by the holder of such beneficial interest, the principal amount of such Restricted Global Note shall be increased, and the principal amount of such Regulation S Global Note shall be decreased, by the principal amount of the beneficial interest in the Regulation S Global Note to be so transferred, in each case by means of an appropriate adjustment on the records of the Trustee, as Note Registrar, and the Trustee, as Note Registrar, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Restricted Global Note having a principal amount equal to the amount so transferred and debit or cause to be debited the Regulation S Global Note.

 

(3)                                 Exchanges between Global Note and Non-Global Note.  Subject to Section 201(d), a beneficial interest in a Global Note may be exchanged for a Note that is not a Global Note as provided in this Section 305, provided that, if such interest is a beneficial interest in a Restricted Global Note or a Regulation S Global Note, then such interest shall be exchanged for a Restricted Note or a Regulation S Note, as the case may be (subject in each case to Section 305(c)).

 

(c)                                  Securities Act Legends.  Rule 144A Notes and their Successor Notes shall bear a Restricted Notes Legend and Regulation S Notes and their Successor Notes shall bear a Regulation S Legend, subject to the following clauses (1) through (8) of this Section 305(c):

 

(1)                                 a Note or any portion thereof which is exchanged, upon transfer or otherwise, for a Global Note or any portion thereof shall bear the Securities Act Legend borne by such Global Note while represented thereby;

 

(2)                                 a new Note which is not a Global Note and is issued in exchange for another Note (including a Global Note) or any portion thereof, upon transfer or otherwise, shall bear the Securities Act Legend borne by such other Note, provided that, if such new Note is required pursuant to subclause 305(b)(3) to be issued in the form of a Restricted Note, it shall bear a Restricted Notes Legend and if such new Note is so required to be issued in the form of a Regulation S Note, it shall bear a Regulation S Legend;

 

(3)                                 at any time after the Notes may be freely transferred without registration under the Securities Act or without being subject to transfer restrictions pursuant to the Securities Act, a new Note which does not bear a Securities Act Legend may be issued in exchange for or in lieu of a Note (other than a Global Note) or any portion thereof which bears such a legend if the Trustee has received an Unrestricted Notes Certificate, substantially in the form of Exhibit D hereto, satisfactory to the Trustee and duly executed by the Holder of such legended Note or his attorney duly authorized in writing, and after such date and receipt of such Unrestricted Notes Certificate, the Trustee or Authenticating Agent shall authenticate and make available for delivery such a new Note in exchange for or in lieu of such other Note as provided in this Article Three, provided that, the Trustee, if it deems reasonably necessary or appropriate, may request an Opinion of Counsel in connection therewith;

 

(4)                                 a new Note which does not bear a Securities Act Legend may be issued in exchange for or in lieu of a Note (other than a Global Note) or any portion thereof which bears such a legend if, in the Company’s judgment, placing such a legend upon such new Note is not necessary to ensure compliance with the registration requirements of the Securities Act, and the Trustee

 

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or Authenticating Agent, at the written direction of the Company, shall authenticate and deliver such a new Note as provided in this Article Three, provided that, the Trustee, if it deems reasonably necessary or appropriate, may request an Opinion of Counsel in connection with such direction;

 

(5)                                 notwithstanding the foregoing provisions of this Section 305(c), a Successor Note of a Note that does not bear a particular form of Securities Act Legend shall not bear such form of legend unless the Company has reasonable cause to believe that such Successor Note is a “restricted security” within the meaning of Rule 144, in which case the Trustee, at the written direction of the Company, shall authenticate and deliver a new Note bearing a Restricted Notes Legend in exchange for such Successor Note as provided in this Article Three;

 

(6)                                 each Holder of a Note agrees to indemnify the Trustee and Authenticating Agent against any liability that may result from the transfer, exchange or assignment of such Holder’s Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law;

 

(7)                                 the Trustee and the Authenticating Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof; and

 

(8)                                 A beneficial interest in a Global Note may be exchanged for a Note that is not a Global Note as provided in this Section 305.

 

(d)                                 Provisions Applying to Global Notes.  The following provisions shall apply only to Global Notes:

 

(1)                                 Each Global Note authenticated under this Indenture shall be registered in the name of the Depositary designated by the Company or a nominee thereof and delivered to the Trustee custodian therefor, and each such Global Note shall constitute a single Note for all purposes of this Indenture.

 

(2)                                 Notwithstanding any other provision in this Indenture or the Notes, no Global Note may be exchanged in whole or in part for Notes, and no transfer of a Global Note in whole or in part may be registered in the name of any Person other than the Depositary or a nominee thereof unless (A) the Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Note or (ii) has ceased to be a clearing agency registered under the Exchange Act, and in either case the Company thereupon fails to appoint a successor depositary within 90 days of such notice, or (B) there shall have occurred and be continuing an Event of Default with respect to such Global Note and the Depositary has requested such transfer or exchange in writing.

 

(3)                                 If any Global Note is to be exchanged for other Notes or cancelled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Trustee, as Note Registrar, for exchange or cancellation as provided in this Article Three.  If any Global Note is to be exchanged for other Notes or cancelled in part, or if another Note is to be exchanged in whole or 

 

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in part for a beneficial interest in any Global Note, then either (A) such Global Note shall be so surrendered for exchange or cancellation as provided in this Article Three or (B) the principal amount thereof shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or cancelled, or equal to the principal amount of such other Note to be so exchanged for a beneficial interest therein, as the case may be, by means of an appropriate adjustment made on the records of the Trustee, as Note Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records.  Upon any such surrender or adjustment of a Global Note, the Trustee shall, subject to Section 305(b) and as otherwise provided in this Article Three, authenticate and deliver any Notes issuable in exchange for such Global Note (or any portion thereof) to or upon the order of, and registered in such names as may be directed by, the Depositary or its authorized representative.  Upon the request of the Trustee in connection with the occurrence of any of the events specified in the preceding paragraph, the Company shall promptly make available to the Trustee a reasonable supply of Notes that are not in the form of Global Notes.  The Trustee shall be entitled to rely upon any order, direction or request of the Depositary or its authorized representative which is given or made pursuant to this Article Three if such order, direction or request is given or made in accordance with the Applicable Procedures and in accordance with all applicable laws.

 

(4)                                 Every Note authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Note or any portion thereof, whether pursuant to this Article Three or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note, unless such Note is registered in the name of a Person other than the Depositary for such Global Note or a nominee thereof.

 

(5)                                 The Depositary or its nominee, as registered owner of a Global Note, shall be the Holder of such Global Note for all purposes under this Indenture and the Notes and owners of beneficial interests in a Global Note shall hold such interests pursuant to the Applicable Procedures.  Accordingly, any such owner’s beneficial interest in a Global Note will be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members.

 

SECTION 306.                                 Mutilated, Destroyed, Lost and Stolen Notes.

 

(a)                                 If any mutilated Note is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Note of like tenor and principal amount and bearing a number not contemporaneously outstanding:

 

(1)                                 If there shall be delivered to the Company and the Trustee (A) evidence to their satisfaction of the destruction, loss or theft of any Note and (B) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee or Authenticating Agent shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount and bearing a number not contemporaneously outstanding; and

 

(2)                                 In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.

 

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(b)                                 Upon the issuance of any new Note under this Section 306, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

(c)                                  Every new Note issued pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.

 

(d)                                 The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

 

SECTION 307.                                 Payment of Interest; Interest Rights Preserved.

 

(a)                                 Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest.

 

(b)                                 Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder on such date, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) of this subsection:

 

(1)                                 The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a “Special Record Date” for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears in the Note Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to clause (2) of this subsection.

 

(2)                                 The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes 

 

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may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee in its reasonable judgment.

 

(c)                                  Subject to the foregoing provisions of this Section 307, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.

 

SECTION 308.                                 Persons Deemed Owners.

 

Prior to due registration of any Note for transfer by a Holder as provided in Section 305, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.  None of the Company, the Notes Guarantors, the Trustee or any agent of the Company, the Notes Guarantors or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Note in global form, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.  Notwithstanding the foregoing, with respect to any Note in global form, nothing herein shall prevent the Company or the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary (or its nominee), as a Holder, with respect to such Note in global form and nothing herein shall impair, as between such Depositary and owners of beneficial interests in such Note in global form, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as a Holder of such Note in global form.

 

SECTION 309.                                 Cancellation.

 

All Notes surrendered for payment, redemption, registration of transfer or exchange or for credit against any Prepayment Offer pursuant to Section 1013 or Change of Control Offer pursuant to Section 1015 shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it.  The Company may at any time deliver to the Trustee or Authenticating Agent for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee.  If the Company shall so acquire any of the Notes, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation.  No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 309, except as expressly permitted by this Indenture.  All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Notes be returned to it.

 

SECTION 310.                                 Computation of Interest.

 

Interest on the Notes shall be computed on the basis set forth in the form of Note annexed as Exhibit A hereto.

 

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SECTION 311.                                 CUSIP Numbers.

 

The Company in issuing the Notes may use “CUSIP,” or “ISIN” numbers (if then generally in use) and the Trustee shall use CUSIP or ISIN numbers, as the case may be, in notices of redemption, exchange and other notices to Holders as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or other notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or notice shall not be affected by any defect in or such omission of such numbers.  The Company shall promptly notify the Trustee of any change in CUSIP or ISIN numbers for the Notes.

 

SECTION 312.                                 Issuance of Additional Notes.

 

(a)                                 Additional Notes ranking pari passu with the Notes issued the date hereof may be created and issued from time to time by the Company without notice to or consent of the Holders and shall be consolidated with and form a single series with the Notes initially issued and shall have the same terms as to status, redemption or otherwise as the Notes originally issued; provided, however, that the Company’s ability to issue Additional Notes shall be subject to the Company’s compliance with Section 1008; provided, further that if the Additional Notes are not fungible with the Notes issued on the date hereof for U.S. federal income tax purposes, the Additional Notes will have a separate CUSIP number.  Any Additional Notes shall be issued pursuant to an indenture supplemental to this Indenture specifying the amount of Additional Notes being issued thereunder.

 

(b)                                 At any time and from time to time after the execution and delivery of this Indenture, the Company may, pursuant to a Board Resolution, deliver Additional Notes executed by the Company to the Trustee or Authenticating Agent for authentication, together with a Company Order for the authentication and delivery of such Additional Notes, an Officers’ Certificate stating that the issuance of such Additional Notes will not result in a breach or violation of any of the covenants contained in this Indenture and that all conditions precedent to such issuance, authentication and delivery of Additional Notes in this Indenture have been fully complied with and satisfied, and the Trustee or Authenticating Agent in accordance with the Company Order shall authenticate and deliver such Notes.  Prior to authenticating such Additional Notes, and accepting any additional responsibilities under this Indenture in relation to such Notes, the Trustee and any Authenticating Agent shall be entitled to receive, if requested, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating in substance that the issuance of such Additional Notes will not result in a breach or violation of any of the covenants contained in this Indenture and as to the due authorization, execution and delivery of the Additional Notes, the enforceability of the Additional Notes, and the duly incorporated status and good standing of the Company, subject to customary exceptions and carve-outs.

 

ARTICLE FOUR
 SATISFACTION AND DISCHARGE

 

SECTION 401.                                 Satisfaction and Discharge of Indenture.

 

(a)                                 This Indenture shall be discharged and shall cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes herein expressly provided for and indemnification rights of the Trustee and Notes Collateral Agent) as to all Outstanding Notes when:

 

(1)                                 either:

 

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(A)                               all Notes theretofore authenticated (other than (i) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

 

(B)                               all such Notes not theretofore delivered to the Trustee for cancellation:

 

(i)                  have become due and payable, or

 

(ii)               will become due and payable at their Stated Maturity within one year, or

 

(iii)            are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

and the Company, in the case of subclauses (i), (ii) or (iii), has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders an amount of cash or U.S. Government Obligations, or a combination thereof, in such amount as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Debt on such Notes not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and accrued interest, if any, to the date of such deposit (in the case of Notes which have become due and payable), or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)                                 no Default or Event of Default under this Indenture shall have occurred and be continuing on the date of the deposit pursuant to subclause (B) of clause (a)(1) of this Section 401, or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company is a party or by which the Company is bound;

 

(3)                                 the Company has paid or caused to be paid all other sums payable hereunder by the Company;

 

(4)                                 the Company has delivered irrevocable instructions to the Trustee to apply the deposited money and the U.S. Government Obligations, or both, toward the payment of the Notes at the Stated Maturity or on the Redemption Date, as the case may be; and

 

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

 

(b)                                 Notwithstanding the satisfaction and discharge of this Indenture pursuant to this Article Four, the obligations of the Company to the Trustee and Notes Collateral Agent under Section 607 and, if money shall have been deposited with the Trustee pursuant to paragraph (B) of clause (a)(1) of this Section 401, the obligations of the Trustee under Section 402 and clause (e) of Section 1003 shall survive.

 

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SECTION 402.                                 Application of Trust Money.

 

Subject to the provisions of subsection (e) of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee.

 

ARTICLE FIVE
 REMEDIES

 

SECTION 501.                                 Events of Default.

 

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

 

(1)                                 failure to make the payment of any interest, on the Notes when the same becomes due and payable, and such failure continues for a period of 30 days;

 

(2)                                 failure to make the payment of any principal of, or premium, if any, on, any of the Notes when the same becomes due and payable at its Stated Maturity, upon acceleration, redemption, optional redemption, required repurchase or otherwise;

 

(3)                                 failure by the Company or its Restricted Subsidiaries to comply with Article Eight;

 

(4)                                 failure by the Company or any Restricted Subsidiary to comply with any other covenant or agreement in the Notes, this Indenture or the Security Documents (other than a failure that is the subject of subclauses (1), (2) or (3) of this subsection 501(a)) and such failure continues for 60 days after written notice is given to the Company as provided in clause (b) of this Section 501; provided, however that the Company shall have 120 days after the receipt of such notice to remedy, or receive a waiver for, any failure to comply with Sections 704 and 1019 hereof or to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act;

 

(5)                                 a default under any Debt (other than Disqualified Stock with respect to which the sole remedy for any default thereunder is a right to elect one or more additional members to the board of directors of the issuer of the Disqualified Stock) by the Company or any Restricted Subsidiary that results in acceleration of the maturity of such Debt, or failure to pay the principal of any such Debt at its final stated maturity and such defaulted payment at maturity shall not have been made, waived or extended within the applicable grace period related to any such payment default, in each case if such Debt is in an aggregate amount greater than $50.0 million or its foreign currency equivalent at the time;

 

(6)                                 failure by the Company or any Restricted Subsidiaries that, individually or in the aggregate, would constitute a Significant Subsidiary to pay final judgments for the payment of money in an aggregate amount in excess of $50.0 million (or its foreign currency equivalent at the time) that shall not be waived, satisfied or discharged for any period of 60 consecutive days during which a stay of enforcement shall not be in effect;

 

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(7)                                 either the Company or any Restricted Subsidiaries that, individually or in the aggregate, would constitute a Significant Subsidiary:

 

(A)                               commences or commence a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or any other case or proceeding to be adjudicated a bankrupt or insolvent;

 

(B)                               consents or consent to the entry of a decree or order for relief in an involuntary case or proceeding against the Company or the Restricted Subsidiaries that individually or in the aggregate would constitute a Significant Subsidiary under any applicable U.S. Federal or State, or other applicable bankruptcy, insolvency, reorganization or other similar law;

 

(C)                               consents or consent to the commencement of any bankruptcy or insolvency case or proceeding against the Company or the Restricted Subsidiaries that individually or in the aggregate would constitute a Significant Subsidiary;

 

(D)                               files or file a petition or answer or consent seeking reorganization or relief under any applicable U.S. Federal or State, or other applicable law, or consent or consents to the filing of such petition;

 

(E)                                consents or consent to the appointment of, or taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or Restricted Subsidiaries that individually or in the aggregate would constitute a Significant Subsidiary or of substantially all of the property of such entity or entities;

 

(F)                                 makes or make an assignment for the benefit of creditors, or admits or admit, as the case may be, in writing of its inability to pay its or their debts generally as they become due, or the taking of corporate action by the Company or Restricted Subsidiaries that individually or in the aggregate would constitute a Significant Subsidiary in furtherance of any such action; and

 

(8)                                 the Notes Guarantees provided by any of the Notes Guarantors that, individually or in the aggregate, would constitute a Significant Subsidiary cease to be in full force and effect (other than in accordance with the terms of such Notes Guarantees) or any of the Notes Guarantors that, individually or in the aggregate, would constitute a Significant Subsidiary deny or disaffirm their obligations under their Notes Guarantees (other than by reason of the release of a Notes Guarantor in accordance with the terms of this Indenture); and

 

(9)                                 unless all the Collateral has been released from the Liens in accordance with the provisions of the Security Documents, (i) the Company or any Notes Guarantor shall assert, in any pleading in a court of competent jurisdiction, that any such security interest is invalid or unenforceable or (ii) any lien or security interest created by any Security Document with respect to any Collateral having a Fair Market Value in excess of $5.0 million ceases to be in full force and effect (except as permitted by the terms of the Indenture or the Security Documents) and such failure continues for 45 days.

 

(b)                                 A Default under clause (a)(4) of this Section 501 is not an Event of Default under this Indenture until the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes notify the Company (with a copy to the Trustee if given by the Holders) of the Default, and the Company does not cure such Default within the time specified after receipt of such notice.  

 

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Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default.”

 

(c)                                  The Company shall deliver to the Trustee, within 30 days after the Company’s knowledge thereof, written notice in the form of an Officers’ Certificate of any event that with the giving of notice and the lapse of time would become an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.

 

SECTION 502.                                 Acceleration of Maturity; Rescission and Annulment.

 

If an Event of Default with respect to the Notes (other than an Event of Default specified in subsection 501(a)(7) with respect to the Company), shall have occurred and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes may declare to be immediately due and payable, by a notice in writing to the Company (and to the Trustee if given by the Holders), the principal amount of all the Outstanding Notes, plus accrued but unpaid interest to the date of acceleration.  If an Event of Default specified in subsection 501(a)(7) shall occur with respect to the Company, such amount with respect to the Notes shall be due and payable immediately without any declaration or other act on the part of the Trustee or the Holders.

 

(a)                                 At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as provided in this Article, the Holders of a majority in aggregate principal amount of the Outstanding Notes, may, by written notice to the Company and the Trustee, rescind and annul such declaration and its consequences if:

 

(1)                                 the Company has paid or deposited with the Trustee a sum sufficient to pay:

 

(A)                               all overdue interest on all Outstanding Notes;

 

(B)                               the principal of (and premium, if any) any Outstanding Notes which have become due otherwise than by such declaration of acceleration (including any Notes required to have been purchased on the Purchase Date pursuant to a Prepayment Offer or the Change of Control Purchase Date pursuant to a Change of Control Offer made by the Company) and, to the extent that payment of such interest is lawful, interest thereon at the rate provided by the Outstanding Notes;

 

(C)                               to the extent that payment of such interest is lawful, interest upon overdue interest at the rate provided by the Notes; and

 

(D)                               all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

 

(2)                                 all Events of Default, other than the non-payment of the principal, interest and premium on the Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

 

(b)                                 No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

(c)                                  In case an Event of Default shall occur and be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of 

 

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any of the Holders unless such Holders shall have offered to such Trustee indemnity reasonably satisfactory to the Trustee.  Subject to such provisions for the indemnification of the Trustee, the Holders of a majority in aggregate principal amount of the Outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes.

 

SECTION 503.                                 Collection of Debt and Suits for Enforcement by Trustee.

 

(a)                                 The Company covenants that if:

 

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

 

(2)                                 default is made in the payment of the principal of (or premium, if any, on) any Note at the Stated Maturity thereof or, with respect to any Note required to have been purchased pursuant to a Prepayment Offer made by the Company, at the Purchase Date thereof,

 

the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any) and interest, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal amount (and premium, if any) and on any overdue interest, at the rate provided by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

(b)                                 If an Event of Default occurs and is continuing, subject to Section 512, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

SECTION 504.                                 Trustee May File Proofs of Claim.

 

(a)                                 Subject to the terms of the Intercreditor Agreement and the other Security Documents, in case of any judicial proceeding relative to the Company (or any other obligor upon the Notes, including the Notes Guarantors), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.  The provisions of this subsection (a) shall be subject to Section 512.

 

(b)                                 No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

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SECTION 505.                                 Trustee May Enforce Claims Without Possession of Notes.

 

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

 

SECTION 506.                                 Application of Money Collected.

 

Subject to Article Thirteen and the terms of the Intercreditor Agreement and the other Security Documents, any money or property collected by the Trustee pursuant to this Article shall be applied, subject to applicable law, in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

FIRST:  To the payment of all amounts due the Trustee and Notes Collateral Agent under Section 607;

 

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

 

THIRD:  The balance, to the Person or Persons entitled thereto, including the Company, the Notes Guarantors or any other obligors of the Notes, as their interests may appear or as a court of competent jurisdiction may direct.

 

SECTION 507.                                 Limitation on Suits and Remedies.

 

No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

(a)                                 such Holder has previously given written notice to the Trustee of a continuing Event of Default;

 

(b)                                 the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes shall have made a written request and offered indemnity reasonably satisfactory to the Trustee to institute proceedings or pursue remedies in respect of such Event of Default in its own name as Trustee hereunder; and

 

(c)                                  no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Notes,

 

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

 

SECTION 508.                                 Unconditional Right of Holders to Receive Principal, Premium and Interest.

 

Notwithstanding any other provision in this Indenture, any Holder shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest on such Note on the Stated Maturity expressed in such Note (or, in the case of redemption, on the Redemption Date or in the case of Prepayment Offer or Change of Control Offer made by the Company and required to be accepted as to such Note, on the Purchase Date or Change of Control Purchase Date, respectively) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

SECTION 509.                                 Restoration of Rights and Remedies.

 

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

 

SECTION 510.                                 Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes pursuant to Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

SECTION 511.                                 Delay or Omission Not Waiver.

 

No delay or omission of the Trustee, Notes Collateral Agent or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the Trustee, Notes Collateral Agent or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee, Notes Collateral Agent or by the Holders, as the case may be.

 

SECTION 512.                                 Control by Holders.

 

Subject to the terms of the Intercreditor Agreement, the other Security Documents and Section 603(b)(5),, the Holders of a majority in aggregate principal amount of the Outstanding Notes shall

 

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have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that:

 

(a)                                 such direction shall not be in conflict with any rule of law or with this Indenture;

 

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

 

(c)                                  the Trustee may refuse to follow any such direction that may involve the Trustee in personal liability; and

 

(d)                                 the Trustee may refuse to follow any such direction that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such direction.

 

SECTION 513.                                 Waiver of Past Defaults.

 

(a)                                 The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes may, by notice to the Trustee, on behalf of the Holders of all the Notes, waive any existing Default or Event of Default hereunder and its consequences, except:

 

(1)                                 a Default or Event of Default in the payment of the principal of (or premium, if any) or interest on any Note (including any Note which is required to have been purchased pursuant to a Prepayment Offer or Change of Control Offer which has been made by the Company); or

 

(2)                                 a Default or Event of Default in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Note affected.

 

(b)                                 Upon any such waiver described in subsection (a) of this Section 513, such Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; provided that no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

SECTION 514.                                 Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the reasonable costs of such suit, and may assess reasonable costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that this Section 514 shall not be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company, the Trustee or by any Holder or group of Holders’ holding in the aggregate more than 10% in principal amount of the Outstanding Notes, or by a Holder pursuant to Section 508.

 

SECTION 515.                                 Waiver of Stay or Extension Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby

 

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expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE SIX
 THE TRUSTEE

 

SECTION 601.                                 Certain Duties and Responsibilities.

 

The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act, this Indenture, the Notes or the Security Documents.  Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity against such risk or liability is not reasonably assured to it.  Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 601.

 

SECTION 602.                                 Notice of Defaults.

 

If any Default or any Event of Default occurs and is continuing and if such Default or Event of Default is known to the Trustee, the Trustee shall mail to each Holder, in the manner and to the extent provided in the Trust Indenture Act, notice of the Default or Event of Default within 45 days after it occurs, unless such Default or Event of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or a Responsible Officer of the Trustee in good faith determines that the withholding of the notice is in the interest of the Holders.

 

SECTION 603.                                 Certain Rights of Trustee.

 

(a)                                 Except during the continuance of an Event of Default, the Trustee undertakes to perform such functions and duties and only such functions and duties as are specifically set forth in this Indenture, and no implied duties or obligations shall be read into this Indenture against the Trustee.  During the existence of an Event of Default, the Trustee shall exercise such of the rights and powers under this Indenture vested in the Trustee under this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.  No provision of this Indenture shall be construed to relieve the Trustee from its duties, except to the extent permitted by the Trust Indenture Act.  Subject to the provisions of Section 601, whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 603.

 

(b)                                 Subject to the Trust Indenture Act and Section 601:

 

(1)                                 in the absence of bad faith on its part, the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

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(2)                                 any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

 

(3)                                 whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;

 

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

 

(5)                                 the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(6)                                 the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

 

(7)                                 the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and

 

(8)                                 the Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes unless either (A) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company, any Notes Guarantor or by any Holder.

 

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

 

(A)                               this clause (9) of subsection (b) of this Section 603 shall not be construed to limit the effect of subsection (b)(1) of this Section 603;

 

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

 

(C)                               the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority 

 

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in principal amount of the Outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and

 

(D)                               no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(10)                          Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 603.

 

(11)                          Delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates and written notices delivered to the Trustee in accordance with the terms of this Indenture).

 

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

 

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

 

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

 

SECTION 604.                                 Not Responsible for Recitals or Issuance of Notes.

 

The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to the validity or sufficiency of this Indenture, of the Notes Guarantees, the Notes or of the Security Documents.  The Trustee shall not be accountable for the use or application by the Company of Notes or the proceeds from the issuance of the Notes.  The Trustee shall not have any responsibility or liability for any information provided to Holders or any other Person, including without limitation in the solicitation of any consent or waiver hereunder, or pursuant to any offering documents, or pursuant to any Prepayment Offer.

 

SECTION 605.                                 May Hold Notes.

 

The Trustee, any Authenticating Agent, any Paying Agent, any Note Registrar, the Notes Collateral Agent or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to Sections 608 and 613, may otherwise deal with the Company 

 

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with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar, the Notes Collateral Agent or such other agent.  Subject to the limitations imposed by the Trust Indenture Act, nothing in this Indenture shall prohibit the Trustee from becoming and acting as trustee or as collateral agent under other indentures, under which other securities, or certificates of interest or participation in other securities, of the Company or any Notes Guarantor are outstanding in the same manner as if it were not Trustee hereunder.

 

SECTION 606.                                 Money Held in Trust.

 

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

 

SECTION 607.                                 Compensation and Reimbursement.

 

The Company agrees:

 

(a)                                 to pay to the Trustee and Notes Collateral Agent from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(b)                                 except as otherwise expressly provided herein, to reimburse the Trustee and Notes Collateral Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee or the Notes Collateral Agent in accordance with any provision of this Indenture and the Security Documents (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

 

(c)                                  to indemnify the Trustee, Notes Collateral Agent and their officers, directors, employees and agents for, and to hold each of them harmless against, any loss, liability or expense incurred without negligence or bad faith in the case of the Trustee and gross negligence or willful misconduct in the case of the Notes Collateral Agent on its part (in each case, as determined by a final order of a court of competent jurisdiction) (subject to the provisions of Sections 601 and 603), arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder and under the Security Documents.  Each of the Trustee and the Notes Collateral Agent shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee or Notes Collateral Agent to notify the Company shall not relieve the Company of its obligations hereunder or under the Security Documents.

 

The obligations of the Company to pay or reimburse the Trustee and Notes Collateral Agent and to indemnify the Trustee and Notes Collateral Agent under this Section 607 shall be secured by a lien prior to that of the Notes upon all property and funds held or collected by the Trustee, except for funds held in trust for the benefit of the Holders of particular Notes.  The obligations of the Company under this Section 607 shall survive any termination of this Indenture and the Security Documents and any earlier resignation or removal of the Trustee or Notes Collateral Agent in accordance with the terms of this Indenture.

 

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SECTION 608.                                 Disqualification: Conflicting Interests.

 

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

 

SECTION 609.                                 Corporate Trustee Required; Eligibility.

 

There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and (together with its corporate Affiliates) has a combined capital and surplus of at least $50,000,000.  If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 609, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six.

 

SECTION 610.                                 Resignation and Removal; Appointment of Successor.

 

(a)                                 No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 611.

 

(b)                                 The Trustee may resign at any time by giving written notice thereof to the Company.  If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(c)                                  The Trustee may be removed at any time by Act of the Holders of a majority in aggregate principal amount of the Outstanding Notes, delivered to the Trustee and to the Company.

 

(d)                                 If at any time:

 

(1)                                 the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or

 

(2)                                 the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(3)                                 the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, (A) the Company by a Board Resolution may remove the Trustee, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

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(e)                                  If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee.  If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company.  If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(f)                                   The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 106.  Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.

 

SECTION 611.                                 Acceptance of Appointment by Successor.

 

(a)                                 Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.  Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.

 

(b)                                 No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

 

(c)                                  After the retiring Trustee’s resignation or removal hereunder, the provisions of Section 607 shall continue to inure to its benefit and the retiring Trustee shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Trustee under this Indenture.

 

SECTION 612.                                 Merger, Conversion, Consolidation or Succession to Business.

 

Any corporation into which the Trustee or Notes Collateral Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee or Notes Collateral Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee or Notes Collateral Agent (including the administration of the trust created under this Indenture), shall be the successor of the Trustee or Notes Collateral Agent hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

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SECTION 613.                                 Preferential Collection of Claims Against Company.

 

If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

SECTION 614.                                 Appointment of Authenticating Agent.

 

(a)                                 The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee to authenticate Notes issued upon original issue and upon exchange, registration of transfer, partial conversion or partial redemption or pursuant to Section 306, and Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.  Wherever reference is made in this Indenture to the authentication and delivery of Notes by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.  Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having (together with its corporate Affiliates) a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority.  If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 614, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions to this Section 614, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 614.

 

(b)                                 Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall otherwise be eligible under this Section 614, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

(c)                                  An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company.  The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the Note Register.  Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.  No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.

 

(d)                                 The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607.

 

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(e)                                  If an appointment is made pursuant to this Section 614, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

 

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

 

	
 
    	
U.S. BANK NATIONAL ASSOCIATION
    
	
 
    	
 
    
	
 
    	
As Trustee
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
As Authenticating Agent
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Authorized Signatory”
    


 

SECTION 615.                                 Security Documents; Intercreditor Agreement.

 

By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Notes Collateral Agent, as the case may be, to execute and deliver the Intercreditor Agreement and any other Security Documents in which the Trustee or the Notes Collateral Agent, as applicable, is named as a party, including any Security Documents executed after the Issue Date.  It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Notes Collateral Agent are (a) expressly authorized to make the representations attributed to Holders in any such agreements and (b) not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose.  Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Intercreditor Agreement or any other Security Document, the Trustee and the Notes Collateral Agent each shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of any other Security Document and the Notes Collateral Agent shall have all the rights, immunities, indemnities and other protections granted to the Trustee hereunder).

 

ARTICLE SEVEN
 HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

SECTION 701.                                 Company to Furnish Trustee Names and Addresses of Holders.

 

If the Trustee is not the Note Registrar, the Company will furnish or cause to be furnished to the Trustee

 

(a)                                 semi-annually, not more than 15 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date, and

 

(b)                                 at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.

 

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SECTION 702.                                 Preservation of Information; Communications to Holders.

 

(a)                                 The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Note Registrar.  The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

 

(b)                                 The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes and the corresponding rights and duties of the Trustee, shall be provided by the Trust Indenture Act.

 

(c)                                  Every Holder, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act.

 

SECTION 703.                                 Reports by Trustee.

 

(a)                                 The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.

 

(b)                                 A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with any stock exchange upon which the Notes are listed, with the Commission and with the Company.  The Company will notify the Trustee when the Notes are listed on any stock exchange.

 

SECTION 704.                                 Reports by Company.

 

The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act; provided that, any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be deemed to be filed with the Trustee when filed with the Commission.

 

ARTICLE EIGHT
 MERGERS, CONSOLIDATION AND SALE OF PROPERTY

 

SECTION 801.                                 The Company May Consolidate, etc. only on Certain Terms.

 

(a)                                 The Company shall not merge, consolidate or amalgamate with or into any other Person (other than a merger of a Restricted Subsidiary into the Company) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of the Properties and assets of the Company and its Restricted Subsidiaries, taken as a whole, in any one transaction or series of transactions unless:

 

(1)                                 the Company shall be the surviving Person (the “Surviving Person”) or the Surviving Person (if other than the Company) formed by such merger, consolidation or amalgamation or to which such sale, transfer, assignment, lease, conveyance or disposition is made shall be

 

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a corporation organized and existing under the laws of the United States, any State thereof or the District of Columbia;

 

(2)                                 the Surviving Person (if other than the Company) expressly assumes all of the obligations of the Company under the Notes and the Security Documents by executing a supplemental indenture and supplements or joinders to the applicable Security Documents and other documents reasonably satisfactory to the Trustee and the Notes Collateral Agent, as applicable, and causes to be made all necessary filings to preserve the perfection of the Liens to the extent required under the Security Documents;

 

(3)                                 after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (3) and clause (4) of this subsection (a) of this Section 801, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;

 

(4)                                 immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under clause (a)(1) of Section 1008; and

 

(5)                                 the Company shall deliver, or cause to be delivered, to the Trustee and the Notes Collateral Agent, in form and substance reasonably satisfactory to the Trustee and the Notes Collateral Agent, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, and the Security Documents, if any, in respect thereto comply with this Section 801 and that all conditions precedent herein provided for relating to such transaction have been satisfied, and, in the case of the Opinion of Counsel, that such supplemental indenture and such supplement or joinder to the Security Documents, if applicable, are valid, binding and enforceable obligations of such Surviving Person.

 

(b)                                 Clause (a)(4) of this Section 801 shall not apply to mergers of the Company into a Wholly Owned Restricted Subsidiary or into a Person solely for the purpose of effecting a change in the state of incorporation of the Company.

 

(c)                                  Upon satisfaction of the conditions in subsection (a) of this Section 801, the Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture and the Security Documents; provided that the predecessor company in the case of a lease of all or substantially all of its assets shall not be released from any of the obligations and covenants under this Indenture, including with respect to the payment of the Notes, and in all other cases, the predecessor company shall be released from all obligations and covenants under this Indenture, including with respect to the payment of the Notes.

 

SECTION 802.                                 The Notes Guarantors May Consolidate, etc. only on Certain Terms.

 

(a)                                 A Notes Guarantor may not, sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all of its assets in any one transaction or series of transactions to, or merge, consolidate or amalgamate with or into another Person (whether or not such Notes Guarantor is the Surviving Person), in any such case, other than to, with or into the Company or another Notes Guarantor, unless:

 

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(1)                                 immediately after giving effect to that transaction, no Default or Event of Default exists under this Indenture; and

 

(2)                                 either:

 

(A)                               the Surviving Person (if not such Notes Guarantor) is a Domestic Restricted Subsidiary and expressly assumes all the obligations of that Notes Guarantor under this Indenture, the Notes Guarantee and the Security Documents by executing a supplemental indenture and supplements or joinders to the applicable Security Documents and other documents reasonably satisfactory to the Trustee and the Notes Collateral Agent and causes to be made all necessary filings and take other actions to preserve the perfection of the Liens to the extent required under the Security Documents; or

 

(B)                               such sale, transfer, assignment, lease, conveyance or other disposition or merger, consolidation or amalgamation does not constitute and Asset Sale or is otherwise in compliance with Section 1013.

 

(b)                                 The Company shall deliver, or cause to be delivered, to the Trustee and the Notes Collateral Agent, in form and substance reasonably satisfactory to the Trustee and the Notes Collateral Agent, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, and such Security Documents, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction have been satisfied, and in the case of the Opinion of Counsel, that such supplemental indenture and such supplement or joinder to the Security Documents, if applicable, are valid, binding and enforceable obligations of such Surviving Person.

 

(c)                                  Upon satisfaction of the conditions in subsection (a) of this Section 802, the Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture and the Security Documents (or of the Notes Guarantor under the Notes Guarantee, this Indenture and the Security Documents); provided, that the predecessor company in the case of a lease of all or substantially all of its assets shall not be released from any of the obligations or covenants under this Indenture and the Notes Guarantee, as applicable, including with respect to the payment of the Notes, and in all other cases the predecessor company shall be released from all obligations and covenants under this Indenture, such Notes Guarantee and the Security Documents, as applicable.

 

ARTICLE NINE
 SUPPLEMENTAL INDENTURES

 

SECTION 901.                                 Supplemental Indentures Without Consent of Holders.

 

(a)                                 Without the consent of any Holders, the Company and the Notes Guarantors, when authorized by a Board Resolution, and the Trustee and the Notes Collateral Agent, at any time and from time to time, may amend this Indenture, the Security Documents and the Intercreditor Agreement and may enter into one or more indentures supplemental hereto or such amendments, supplements or joinders to the Security Documents or Intercreditor Agreement, as applicable, in a form satisfactory to the Trustee and the Notes Collateral Agent, to:

 

(1)                                 cure any ambiguity, omission, defect or inconsistency;

 

(2)                                 provide for the assumption by a successor corporation of the obligations of the Company or a Notes Guarantor under this Indenture and the Notes Guarantees as applicable;

 

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(3)                                 provide for uncertificated Notes in addition to or in place of certificated Notes issued under this Indenture;

 

(4)                                 add Notes Guarantees with respect to the Notes or release Notes Guarantees as provided by the terms of this Indenture;

 

(5)                                 add to the covenants of the Company or its Restricted Subsidiaries, as applicable, for the benefit of the Holders or to surrender any right or power conferred upon the Company or its Restricted Subsidiaries by this Indenture, the Security Documents and the Intercreditor Agreement;

 

(6)                                 make any change that does not adversely affect the rights of any Holder;

 

(7)                                 comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act;

 

(8)                                 provide for the issuance of Additional Notes in accordance with this Indenture;

 

(9)                                 to evidence and provide for the acceptance and appointment of a successor Trustee or Notes Collateral Agent;

 

(10)                          to add additional assets as Collateral, or to release Collateral from the Lien or subordinate such Lien or confirm the subordination of such Lien pursuant to this Indenture and the Security Documents, the Intercreditor Agreement and the agreement(s) governing any Pari Passu Lien Obligations secured by such Lien when permitted or required by this Indenture, the Security Documents and/or the Intercreditor Agreement (and/or the agreement(s) governing any Pari Passu Lien Obligations secured by such Liens); or

 

(11)                          to secure additional Notes Obligations and/or Pari Passu Lien Obligations and add additional secured creditors under the Security Documents holding Obligations that constitute Pari Passu Lien Obligations pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreement.

 

SECTION 902.                                 Supplemental Indentures with Consent of Holders.

 

(a)                                 Except as permitted by Section 901, this Indenture, the Security Documents and the Intercreditor Agreement may be amended with the consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for such Notes), by Act of said Holders delivered to the Company, the Notes Guarantors and the Trustee, the Company, and the Notes Guarantors when authorized by a Board Resolution, and the Trustee and Notes Collateral Agent, if applicable,  may (A) enter into an indenture or indentures supplemental hereto and amendments to the Security Documents or Intercreditor Agreement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or the Notes or of modifying in any manner the rights of the Holders under this Indenture and the Security Documents or (B) waive compliance with any provision in this Indenture and the Notes or any existing Default or Event of Default (other than waivers of past Defaults in accordance with Section 513 and waivers of covenants in accordance Section 1021); provided, however, that no such supplemental indenture, amendment or waiver shall, without the consent of the Holder of each Outstanding Note affected thereby:

 

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(1)                                 reduce the amount of the Notes whose holders must consent to an amendment or waiver;

 

(2)                                 reduce the rate of, or extend the time for payment of interest on, any Note;

 

(3)                                 reduce the principal of, or extend the Stated Maturity of, any Note;

 

(4)                                 make any Note payable in money other than that stated in such Note;

 

(5)                                 impair the right of any Holder to receive payment of principal of and interest on such Holder’s Note on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Note or any Note Guarantee;

 

(6)                                 reduce the premium payable upon the redemption of any Note or change the time at which any such Note may be redeemed pursuant to Article Eleven (other than the required period for notice of redemption);

 

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

 

(8)                                 at any time after the Company is obligated to make a Prepayment Offer with the Excess Proceeds from Asset Sales, change the time at which such Prepayment Offer must be made or at which the Notes must be repurchased pursuant thereto; or

 

(9)                                 following the mailing of a notice of a Prepayment Offer or a Change of Control Offer, modify the provisions of this Indenture with respect to such offer in a manner adverse to the Holders.

 

(b)                                 Additionally, without the consent of holders of at least 662/3% in principal amount of the Notes then outstanding, no such amendment, waiver or modification will release all or substantially all of the Collateral from the Liens of the Security Documents.

 

(c)                                  Upon the written request of the Company and the Notes Guarantors accompanied by a copy of the Board Resolution authorizing the execution of any such supplemental indenture, amendment or agreement or upon the filing with the Trustee and Notes Collateral Agent, if applicable, of evidence of the consent of the Holders as aforesaid, the Trustee and Notes Collateral Agent, if applicable, shall join with the Company and the Notes Guarantors in execution of such supplemental indenture, amendment or agreement.  It shall not be necessary for any Act of Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, amendment or agreement, but it shall be sufficient if such Act shall approve the substance thereof.

 

SECTION 903.                                 Execution of Supplemental Indentures.

 

In executing, or accepting the additional trusts created by, any supplemental indenture, agreement, instrument or waiver permitted by this Article Nine or the modifications thereby of the trusts created by this Indenture, the Trustee and the Notes Collateral Agent shall be entitled to receive, and (subject to Sections 601 and 603) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture, agreement, instrument or waiver is authorized or permitted by this Indenture.  The Trustee and the Notes Collateral Agent may, but shall not be obligated to, enter 

 

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into any such supplemental indenture, agreement, instrument or waiver which affects the Trustee’s or the Notes Collateral Agent’s, as applicable, own rights, duties or immunities under this Indenture or otherwise.

 

SECTION 904.                                 Effect of Supplemental Indentures.

 

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

SECTION 905.                                 Conformity with Trust Indenture Act.

 

Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act.

 

SECTION 906.                                 Reference in Notes to Supplemental Indentures.

 

Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall, if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes.

 

SECTION 907.                                 Notice of Supplemental Indenture.

 

Promptly after execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Company shall give notice thereof to the Holders of each Outstanding Notes affected (with a copy to the Trustee and the Notes Collateral Agent), in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.

 

SECTION 908.                                 Form of Consent.

 

The consent of the Holders is not necessary to approve the particular form of any proposed amendment.  It is sufficient if such consent approves the substance of the proposed amendment.

 

ARTICLE TEN
 COVENANTS

 

SECTION 1001.                          Payment of Principal, Premium and Interest.

 

The Company will duly and punctually pay the principal of (and premium, if any) and interest on the Notes in accordance with the terms of the Notes and this Indenture.  The Company shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent lawful, at the rate per annum specified in the Notes in accordance with the terms of this Indenture and the Notes.

 

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SECTION 1002.                          Maintenance of Office or Agency.

 

(a)                                 The Company will maintain an office or agency in the United States where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee in the United States, and the Company hereby appoints the Trustee or its agent as its agent to receive all such presentations, surrenders, notices and demands.

 

(b)                                 The Company may also from time to time designate one or more other offices or agencies in the United States where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

SECTION 1003.                          Money for Note Payments to be Held in Trust.

 

(a)                                 If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (and premium, if any) or interest, on any of the Notes, segregate and hold in trust for the benefit of the Trustee and the Holders of the Notes a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. In the case of a bankruptcy filing by the Company, the Trustee shall be the Paying Agent.

 

(b)                                 Whenever the Company shall have one or more Paying Agents, it will, by 10:00 a.m. New York City time on or before each due date of the principal of (and premium, if any) or interest on any Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal at maturity, premium or interest  as provided in the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

(c)                                  The Company will cause each Paying Agent other than the Trustee or the Company to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent will:

 

(1)                                 comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent (or, until such time as this Indenture shall be qualified under the Trust Indenture Act, which would be applicable to it as Paying Agent if this Indenture were so qualified); and

 

(2)                                 at any time during the continuance of any Default by the Company (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent for payment in respect of the Notes.

 

(d)                                 The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent 

 

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to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

(e)                                  Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Note and remaining unclaimed for a period ending on the earlier of the date that is ten Business Days prior to the date such money would escheat to the State or two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.

 

SECTION 1004.                          Corporate Existence.

 

Subject to Article Eight and Section 1013, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence.

 

SECTION 1005.                          Maintenance of Properties.

 

The Company will cause all material properties used or useful in the conduct of its business or the business of any Restricted Subsidiary to be maintained and kept in good condition, repair and working order (reasonable wear and tear excepted) and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly conducted at all times; provided, however, that nothing in this Section 1005 shall prevent the Company or any of its Restricted Subsidiaries from discontinuing the operation or maintenance of any of such properties if such discontinuance is, as determined by the Company or Restricted Subsidiary in good faith, desirable in (or not materially adverse to) the conduct of its business or the business of any Restricted Subsidiary and not adverse in any material respect to the Holders.

 

SECTION 1006.                          Payment of Taxes and Other Claims.

 

The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Company or any of its Restricted Subsidiaries or upon the income, profits or property of the Company or any of its Restricted Subsidiaries, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any of its Restricted Subsidiaries; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate negotiations or proceedings.

 

SECTION 1007.                          Maintenance of Insurance.

 

The Company shall, and shall cause its Restricted Subsidiaries to, keep at all times all of their properties which are of an insurable nature insured (which may include self insurance) against loss or damage with insurers believed by the Company or such Restricted Subsidiary to be responsible to the extent that property of similar character is usually so insured by corporations similarly situated and owning like properties in accordance with good business practice.

 

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SECTION 1008.                          Limitation on Debt.

 

(a)                                 The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt (including Acquired Debt) unless, after giving effect to the application of the proceeds thereof, either:

 

(1)                                 such Debt is Debt of the Company or a Restricted Subsidiary and after giving effect to the Incurrence of such Debt and the application of the proceeds thereof, the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1.0; or

 

(2)                                 such Debt is Permitted Debt.

 

(b)                                 Notwithstanding anything to the contrary contained in this Section 1008, any increase in the amount of Debt solely by reason of currency fluctuation shall not be considered an Incurrence of Debt for purposes of this Section 1008.  For purposes of determining compliance with this Section 1008, the U.S. dollar-equivalent principal amount of Debt denominated in any currency other than U.S. dollars shall be calculated based on the relevant currency exchange rate in effect as of the date such Debt is Incurred; provided that the amount of any Permitted Refinancing Debt denominated in the same currency as the Debt being Refinanced thereby shall be calculated based on the relevant exchange rate in effect as of the date of the Incurrence of the Debt being so Refinanced;

 

(c)                                  The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, the accumulation of dividends on Disqualified Stock or Preferred Stock of Restricted Subsidiaries (to the extent not paid) and the payment of dividends on Disqualified Stock or Preferred Stock of Restricted Subsidiaries in the form of additional shares of the same class of Disqualified Stock or Preferred Stock of Restricted Subsidiaries will not be deemed to be an Incurrence of Debt or an issuance of Disqualified Stock for purposes of this Section 1008; provided that, in each case, the amount thereof shall be included in Consolidated Interest Expense of the Company as accrued; and

 

(d)                                 For purposes of determining compliance with this Section 1008, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (l) of the definition of “Permitted Debt” or is entitled to be incurred pursuant to clause (a)(1) of this Section 1008, the Company shall, in its sole discretion, divide and classify or reclassify such item of Debt (or any part thereof), in any manner that complies with this Section 1008, and such item of Debt will be treated as having been Incurred pursuant to one or more of such categories of Permitted Debt or pursuant to clause (a)(1) of this Section 1008.  For purposes of determining any particular amount of Debt under this Section 1008, Guarantees, Liens or obligations, in each case, in support of letters of credit supporting Debt shall not be included to the extent such letters of credit are included in the amount of Debt.

 

SECTION 1009.                          Limitation on Restricted Payments.

 

(a)                                 The Company shall not make, and shall not permit any Restricted Subsidiary to make, any Restricted Payment if at the time of, and after giving effect to, such proposed Restricted Payment:

 

(1)                                 a Default or Event of Default shall have occurred and be continuing;

 

(2)                                 the Company could not Incur at least $1.00 of additional Debt pursuant to clause (a)(1) of Section 1008; or

 

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(3)                                 the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made since the Issue Date (the amount of any Restricted Payment, if made other than in cash, to be based upon Fair Market Value on the date made) would exceed an amount equal to the sum of:

 

(A)                               50% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the most recent fiscal quarter for which financial statements have been made publicly available at the time of such Restricted Payment (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, less 100% of such deficit); plus

 

(B)                               100% of the Capital Stock Sale Proceeds; plus

 

(C)                               100% of the aggregate net cash proceeds received by the Company or any Restricted Subsidiary from the issuance or sale after the Issue Date of convertible or exchangeable Debt that has been converted into or exchanged for Capital Stock (other than Disqualified Stock) of the Company (net of any cash expenditures by the Company or any Restricted Subsidiary pursuant to any Permitted Bond Hedge relating to such Indebtedness), excluding:

 

(i)                  any such Debt issued or sold to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their respective employees; and

 

(ii)               the aggregate amount of any cash or other Property distributed by the Company or any Restricted Subsidiary upon any such conversion or exchange;

 

plus

 

(D)                               an amount equal to the sum of:

 

(i)                  in the case of the net reduction in Investments (which Investments constituted a Restricted Payment when made) in any Person other than the Company or a Restricted Subsidiary resulting from dividends, repayments of loans or advances or other transfers of Property, in each case to the Company or any Restricted Subsidiary from such Person, or from the sale or other disposition of any such Investment to any Person other than the Company or a Restricted Subsidiary, the lesser of:

 

(x)                                 the cash return of capital with respect to such Investment; and

 

(y)                                 the aggregate value of such Investment;

 

in the case of either clause (x) or (y) in this subparagraph (a)(3)(D)(i), less the cost of the disposition of such Investment; plus

 

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(ii)               the portion (proportionate to the Company’s equity interest in an Unrestricted Subsidiary) of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary;

 

provided, however, that no amount will be included under this paragraph (D) to the extent already included in the calculation of Consolidated Net Income;

 

plus

 

(E)                                $25.0 million.

 

(b)                                 Notwithstanding the limitations in subsection (a) of this Section 1009, the Company or any Restricted Subsidiary may:

 

(1)                                 pay dividends on its Capital Stock within 60 days of the declaration thereof if, on the declaration date, such dividends could have been paid in compliance with this Indenture; provided, however, that such dividend shall be included in the calculation of the amount of Restricted Payments pursuant to clause (a)(3) of this Section 1009;

 

(2)                                 purchase, repurchase, redeem, defease, acquire or retire for value Capital Stock or Subordinated Debt of the Company or any Restricted Subsidiary in exchange for, upon conversion of or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company whether contemporaneously or in the future (other than Disqualified Stock that is not Permitted Refinancing Debt and other than Capital Stock issued or sold to a Restricted Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees) or any Permitted Refinancing Debt; provided, however, that:

 

(A)                               such purchase, repurchase, redemption, legal defeasance, acquisition or retirement shall be excluded in the calculation of the amount of Restricted Payments pursuant to clause (a)(3) of this Section 1009; and

 

(B)                               the Capital Stock Sale Proceeds from such exchange or sale shall be excluded from the calculation pursuant to paragraph (a)(3)(B) of this Section 1009;

 

(3)                                 purchase, repurchase, redeem, defease, acquire or retire for value any Subordinated Debt in exchange for, or out of the proceeds of the sale of, Permitted Refinancing Debt;

 

(4)                                 so long as no Default or Event of Default has occurred and is continuing, purchase, repurchase, redeem, defease, acquire or retire for value Capital Stock, or options, stock appreciation rights or other rights to purchase or acquire Capital Stock, of the Company or any Subsidiary of the Company from any officer, director, employee or consultant of the Company or its Restricted Subsidiaries in an aggregate amount not to exceed $10.0 million per year;

 

(5)                                 extend loans to employees, officers and directors of the Company and its Restricted Subsidiaries in compliance with applicable laws and in an amount not to exceed $5.0 million in the aggregate at any one time outstanding;

 

(6)                                 acquire the Capital Stock of the Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise, the vesting of restricted

 

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stock or restricted stock units or in connection with the satisfaction of withholding tax obligations;

 

(7)                                 in connection with an acquisition by the Company or by any of its Restricted Subsidiaries, receive or accept the return to the Company or any of its Restricted Subsidiaries of Capital Stock of the Company or any of its Restricted Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims or as a result of a purchase price adjustment;

 

(8)                                 purchase fractional shares of the Capital Stock of the Company arising out of stock dividends, splits or combinations or mergers, consolidations or other acquisitions and cash payments in lieu of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company;

 

(9)                                 honor any conversion request by a holder of any convertible Debt of the Company or its Restricted Subsidiaries and make cash payments in lieu of fractional shares in connection with any conversion of convertible Debt in accordance with the terms of any convertible Debt;

 

(10)                          make any payment on or with respect to, or repurchase, redeem, defease or acquire or retire for value, any Subordinated Debt convertible into Equity Interests (other than Disqualified Stock) of the Company in connection with:

 

(A)                               an optional redemption of such convertible Subordinated Debt pursuant to the terms thereof; provided that, the current market price per share of the Company’s common stock (calculated based upon the average closing price as reported on the Nasdaq Global Select Market (or any national securities exchange on which such common stock is listed) for the 30-trading day period immediately preceding the date any notice of redemption is sent or published) into which such Debt is convertible equals or exceeds 150% of the conversion price in effect for such Debt on the date of such notice; and

 

(B)                               the payment by the Company of cash in lieu of any fractional shares deliverable upon conversion of any Debt in compliance with the terms of the instruments governing such Debt;

 

provided that any amounts paid (other than in shares of the Company’s Capital Stock) pursuant to this clause (10) will be deducted in determining the amount of Restricted Payments permitted under clause (a)(3) of this Section 1009;

 

(11)                          engage in transactions relating to tax planning strategies of the Company and its Restricted Subsidiaries; provided that all such transactions are between or among Restricted Subsidiaries, the Company and any trustee, transfer agent or escrow agent relating to such tax planning strategies, or any combination of the foregoing parties;

 

(12)                          so long as no Default or Event of Default has occurred and is continuing, make Restricted Payments in an aggregate amount not to exceed $100.0 million;

 

(13)                          the distribution of rights pursuant to any shareholder rights plan or the redemption of such rights for nominal consideration in accordance with the terms of any shareholder rights plan;

 

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(14)                          payments or distributions to stockholders pursuant to appraisal rights required under applicable law in connection with any merger, consolidation or acquisition by the Company or any Restricted Subsidiary; and

 

(15)                          Restricted Payments in connection with any Permitted Bond Hedge.

 

(c)                                  The actions described in the preceding clauses (1), (4), (5), (9), and (10) (other than amounts paid in shares of the Company’s Capital Stock pursuant to clause (10)) of subsection (b) of this Section 1009 shall be Restricted Payments that shall be permitted to be made in accordance with this Section 1009 but which shall reduce the amount that would otherwise be available for Restricted Payments under clause (a)(3) of this Section 1009, and the actions described in the preceding clauses (2), (3), (6), (7), (8), (11), (12), (13), (14) and (15) shall be Restricted Payments that shall be permitted to be taken in accordance with this Section 1009 and shall not reduce the amount that would otherwise be available for Restricted Payments under clause (a)(3) of this Section 1009.

 

SECTION 1010.                          Limitation on Restrictions on Distributions from Restricted Subsidiaries.

 

(a)                                 The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause any consensual restriction on the right of any Restricted Subsidiary to:

 

(1)                                 pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or any other Restricted Subsidiary;

 

(2)                                 make any loans or advances to the Company or any other Restricted Subsidiary; or

 

(3)                                 transfer any of its Property to the Company or any other Restricted Subsidiary.

 

(b)                                 The limitations set forth in subsection (a) of this Section 1010 will not apply:

 

(1)                                 with respect to clauses (1), (2) and (3) of subsection (a) of this Section 1010, to restrictions:

 

(A)                               in effect on the Issue Date (and restrictions pursuant to the Notes, the Notes Guarantees, the Security Documents, this Indenture and the ABL Facility);

 

(B)                               imposed on a Restricted Subsidiary and existing at the time it became a Restricted Subsidiary if such restrictions were not created in connection with or in anticipation of the transaction or series of transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company;

 

(C)                               that result from the Refinancing or subsequent Refinancing of Debt Incurred pursuant to an agreement, instrument or contract referred to in subclause (A), (B), (E), (F), (H), (I), (J) or (K) of this clause (1) of subsection (b) of this Section 1010, provided that the restrictions existing under or by reason of any such agreement, instrument or contract are not, in the good faith judgment of the Company, materially less favorable, taken as a whole, to the Holders than those under the agreement evidencing the Debt so Refinanced;

 

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(D)                               existing by virtue of, or arising under, applicable law, regulation, order, approval, license, permit, grant or similar restriction, in each case issued or imposed by a governmental authority;

 

(E)                                under any agreement, instrument or contract affecting Property or a Person at the time such Property or Person was acquired by the Company or any Restricted Subsidiary, so long as such restriction relates solely to the Property or Person so acquired and was not created in connection with or in anticipation of such acquisition;

 

(F)                                 under or in connection with any joint venture agreements, partnership agreements, stock sale agreements, asset sale agreements and other similar agreements, provided that any such agreements are entered into in the ordinary course of business and in good faith and that such restrictions are reasonably customary for such agreements;

 

(G)                               under any customary provisions with respect to cash or other deposit or net worth requirements under agreements, instruments or contracts entered into in the ordinary course of business;

 

(H)                              under any agreement entered into in connection with the Incurrence of Debt of the type described in clause (j) of the definition of “Permitted Debt”;

 

(I)                                   under any customary provisions under any agreements, instruments or contracts relating to any Receivables Program;

 

(J)                                   under any customary provisions under any agreements, instruments or contracts relating to any Synthetic Lease or Sale and Leaseback Transaction relating to the Office Campus;

 

(K)                              under any agreement, instrument or contract relating to (i) Debt that is permitted under Section 1008 to be Incurred pursuant to clause (b) of the definition of “Permitted Debt” or (ii) Pari Passu Lien Obligations;

 

(L)                                under any agreement, instrument or contract entered into in connection with any transactions relating to tax planning strategies of the Company and its Restricted Subsidiaries; provided that all such transactions are between or among Restricted Subsidiaries, the Company and any trustee, transfer agent or escrow agent relating to such tax planning strategies, or any combination of the foregoing parties;

 

(M)                            any restriction with respect to property or assets subject to a Permitted Lien imposed by the secured party;

 

(N)                               customary provisions in joint venture agreements or arrangements and other similar agreements relating solely to such joint venture;

 

(O)                               customary restrictions and conditions contained in any agreement or document related to any Permitted Lien so long as such restrictions or conditions relate only to the assets subject to such Lien; and

 

(P)                                 existing with respect to any Unrestricted Subsidiary at the time it is designated a Restricted Subsidiary (other than restrictions incurred in contemplation of such designation).

 

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(2)                                 Only with respect to clause (3) of subsection (a) of this Section 1010 to:

 

(A)                               customary provisions restricting subletting or assignment of leases or customary provisions in licenses or other agreements that restrict assignment of such agreements or rights thereunder;

 

(B)                               customary provisions restricting the sale or other disposition of Property contained in agreements limiting the transfer of Property pending the closing of such sale; and

 

(C)                               restrictions on the sale or other disposition of Property acquired, constructed, improved or leased (and any additions, parts, attachments, fixtures, leasehold improvements, proceeds, improvements or accessions related thereto) in whole or in part under any agreement, instrument or contract relating to Debt permitted under Section 1008 to be Incurred under clause (c) of the definition of “Permitted Lien.”

 

SECTION 1011.                          Limitation on Liens.

 

The Company shall not, and shall not permit any Restricted Subsidiary to, Incur or permit to exist any Lien of any nature whatsoever, other than Permitted Liens, on any of its properties (including Capital Stock of a Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired.

 

SECTION 1012.                          [Intentionally Omitted].

 

SECTION 1013.                          Limitation on Asset Sales.

 

(a)                                 The Company shall not, and shall not permit any Restricted Subsidiary to, consummate any Asset Sale unless:

 

(1)                                 the Company or such Restricted Subsidiary receives consideration in connection with such Asset Sale at least equal to the Fair Market Value (such Fair Market Value to be determined as of the date the Company or any Restricted Subsidiary contractually agrees to such Asset Sale) of the Property subject to such Asset Sale;

 

(2)                                 at least 75% of the consideration received by the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of any one or a combination of the following:  (A) cash, Cash Equivalents or Additional Assets, (B) the assumption by the purchaser of liabilities of the Company or any Restricted Subsidiary in the amounts as shown on the latest consolidated balance sheet on which such liability appears (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any applicable Notes Guarantee, as the case may be), as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to such liabilities, (C) securities, notes or other obligations received by the Company or such Restricted Subsidiary to the extent such securities, notes or other obligations are converted by the Company or such Restricted Subsidiary into cash, Cash Equivalents or Additional Assets within 90 days of such Asset Sale, and (D) Debt of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale if the Company and all of its Restricted Subsidiaries immediately are released from all Guarantees, if any, of payments or other obligations with respect to such Debt and such Debt is no longer the liability of the Company or any of its Restricted Subsidiaries; and

 

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(3)                                 in connection with any Asset Sale for consideration with a value in excess of $50.0 million, the Company delivers an Officers’ Certificate to the Trustee certifying that such Asset Sale complies with clauses (1) and (2) of subsection (a) of this Section 1013.

 

(b)                                 The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Debt):

 

(1)                                 to Repay Debt of the Company or any Notes Guarantor (excluding, in either case, any Debt owed to the Company or a Subsidiary) that is secured by a Lien on the assets disposed of that ranks senior to the Liens, if any, on such assets securing the Notes Obligations;

 

(2)                                 in the case of an Asset Sale by a Restricted Subsidiary that is not a Notes Guarantor, to Repay Debt of a Restricted Subsidiary that is not a Notes Guarantor (other than Debt owing to the Company or a Subsidiary); or

 

(3)                                 to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary).

 

(c)                                  Any Net Available Cash from an Asset Sale not used (or committed pursuant to a written agreement to be used) in accordance with subsection (b) of this Section 1013 within 365 days from the date of the receipt of such Net Available Cash shall constitute “Excess Proceeds.”  Pending application of any such Net Available Cash within such 365-day period (or, in the case of any amount committed to be so used, which are not actually so used within 180 days following such 365-day period), the Company may temporarily reduce any revolving borrowings that constitute Senior Debt.

 

(d)                                 When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer to repurchase the Notes (the “Prepayment Offer”), which offer shall be in the amount of the Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata basis according to principal amount at a purchase price equal to 100% of the principal amount, plus accrued and unpaid interest (the “Purchase Price”), to the purchase date (the “Purchase Date”) (subject to the right of Holders on the relevant Regular Record Date that is prior to the Purchase Date to receive interest due on the relevant Interest Payment Date).  If the Notes delivered for payment exceed, in aggregate principal amount, the Allocable Excess Proceeds, the Company will purchase such Notes on a pro rata basis.

 

(e)                                  The term “Allocable Excess Proceeds” will mean the product of:

 

(1)                                 the Excess Proceeds and

 

(2)                                 a fraction,

 

(A)                               the numerator of which is the aggregate principal amount of the Notes Outstanding on the date of the Prepayment Offer, and

 

(B)                               the denominator of which is the sum of the aggregate principal amount of the Notes outstanding on the date of the Prepayment Offer and the aggregate principal amount of Pari Passu Lien Obligations outstanding on the date of the Prepayment Offer that are subject to terms and conditions in respect of Asset Sales similar in all material 

 

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respects to this Section 1013 and requiring the Company to make an offer to purchase such Debt at substantially the same time as the Prepayment Offer.

 

(f)                                   To the extent that any portion of the amount of Net Available Cash remains after a Prepayment Offer pursuant to subsection (d) of this Section 1013, and provided that all holders of the Notes have been given the opportunity to tender their Notes for purchase in accordance with this Section 1013, the Company or such Restricted Subsidiary may use such remaining amount for any purpose permitted by this Indenture and the amount of Excess Proceeds will be reset to zero.

 

(g)                                  Within five Business Days after the Company becomes obligated to make a Prepayment Offer, the Company shall send a written notice of such Prepayment Offer to each Holder (with a copy to the Trustee) by first-class mail, postage prepaid or delivered electronically in accordance with the applicable procedures of the Depositary, at the address of such Holder appearing in the Note Register or delivered in accordance with the applicable procedures of the Depositary, stating, (1) the Purchase Price and the Purchase Date, which date shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed or delivered, or such other dates as are necessary to comply with requirements under the Exchange Act or any applicable securities laws or regulations; (2) that any Note not tendered will continue to accrue interest if interest is then accruing; (3) that, unless the Company defaults in the payment of the Purchase Price, any Notes accepted for payment pursuant to the Prepayment Offer shall cease to accrue interest after the Purchase Date; (4) that Holders electing to have any Notes purchased pursuant to a Prepayment Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Purchase Date; (5) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing its election to have such Notes purchased; (6) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof; (7) the instructions that Holders of Notes must follow in order to tender their Notes; (8) the circumstances and facts that the Company deems relevant regarding such Excess Proceeds Offer; and (9) such information regarding the Company and its Subsidiaries that the Company, in good faith, believes will enable the Holders to make an informed decision with respect to such Prepayment Offer.

 

(h)                                 The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations and any applicable rules of any securities exchange on which the Notes may be listed in connection with the repurchase of Notes pursuant to this Section 1013.  To the extent that the provisions of any securities laws or regulations or the rules of any securities exchange conflict with provisions of this Section 1013, the Company will comply with the applicable securities laws and regulations or the rules of any securities exchange and will not be deemed to have breached its obligations under this Section 1013 by virtue of such compliance.

 

SECTION 1014.                          Limitation on Transactions with Affiliates.

 

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

 

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(1)                                 the terms of such Affiliate Transaction are, when viewed together with related Affiliate Transactions, if any, no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that reasonably could be expected to be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company; and

 

(2)                                 with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50 million, the Company delivers to the Trustee either a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 1014 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors, or an opinion as to the fairness to the Company of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.

 

(b)                                 Notwithstanding the foregoing limitation, the following shall not be Affiliate Transactions:

 

(1)                                 any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries, provided that no more than 10% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);

 

(2)                                 any Restricted Payment permitted to be made pursuant to Section 1009 or any Permitted Investment;

 

(3)                                 the payment of compensation (including amounts paid pursuant to employee benefit plans), performance or contribution obligations for the personal services of, the issuance, grant or award of stock options or other equity related interests to, or the granting of indemnification to, officers, directors and employees of the Company or any of the Restricted Subsidiaries, in the ordinary course of business;

 

(4)                                 loans and advances to directors, employees or officers made in the ordinary course of business in compliance with applicable laws, provided that such loans and advances do not exceed $5.0 million in the aggregate at any one time outstanding;

 

(5)                                 the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or other similar arrangement (in each case entered into in the ordinary course of business) for or with any employee, officer or director, including vacation, health, insurance, deferred compensation, retirement, savings or other similar plans;

 

(6)                                 transactions to which no other Affiliate of the Company or any Restricted Subsidiary is a party with Permitted Joint Ventures; and

 

(7)                                 the payment of reasonable and customary regular fees to directors of the Company who are not employees of the Company and indemnification arrangements entered into by the Company in the ordinary course of business.

 

SECTION 1015.                          Repurchase at the Option of Holders upon a Change of Control.

 

(a)                                 Upon the occurrence of a Change of Control, each Holder shall have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in

 

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excess thereof) of such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at a purchase price (the “Change of Control Purchase Price”) equal to 101% of the principal amount thereof, plus accrued and unpaid interest on the Notes to be repurchased, if any, to, but excluding, the Change of Control Purchase Date (subject to the right of Holders on the relevant Regular Record Date that is prior to the Change of Control Purchase Date to receive interest due on the relevant Interest Payment Date).

 

(b)                                 Within 30 days following any Change of Control, the Company (or at the request of the Company, the Trustee) shall send, by first-class mail or delivered in accordance with the applicable procedures of the Depositary for the Notes, with a copy to the Trustee, to each Holder at such Holder’s address appearing in the Note Register, a notice stating:

 

(1)                                 that a Change of Control has occurred and a Change of Control Offer is being made pursuant to Section 1015 of this Indenture and that all Notes properly tendered pursuant to the Change of Control Offer will be accepted for payment;

 

(2)                                 the Change of Control Purchase Price and the repurchase date (the “Change of Control Purchase Date”), which date shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed or delivered;

 

(3)                                 the circumstances giving rise to the Change of Control;

 

(4)                                 the procedures that Holders must follow in order to tender their Notes (or portions thereof) for payment, and the procedures that Holders must follow in order to withdraw an election to tender Notes (or portions thereof) for payment; and

 

(5)                                 that on and after the Change of Control Purchase Date, interest shall cease to accrue on the Notes or portions of the Notes surrendered for purchase by the Company, unless the Company defaults in the payment of the Change of Control Purchase Price.

 

(c)                                  The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations or rules of any securities exchange on which the Notes may be listed in connection with the repurchase of Notes pursuant to a Change of Control Offer.  To the extent that the provisions of any securities laws or regulations or rules of such securities exchange conflict with the provisions of this Section 1015, the Company, to the extent applicable, will comply with the applicable securities laws and regulations or rules of such securities exchange and will not be deemed to have breached its obligations under this Section 1015 by virtue of such compliance.

 

SECTION 1016.                          Designation of Restricted and Unrestricted Subsidiaries.

 

(a)                                 The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default.  The Company shall not be permitted to designate any Restricted Subsidiary as an Unrestricted Subsidiary at any time the Company is not subject to the Suspended Covenants.

 

(b)                                 If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be an Investment made as of the time of such designation and will reduce the amount available for Restricted Payments under clause (a)(3) of Section 1009 or Permitted Investments,

 

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as applicable; provided that Investments in Persons in existence before such Person becomes a Subsidiary that were Permitted Investments or allowed under Section 1009, will not be deemed to be Investments at the time such Person becomes a Subsidiary and is designated as an Unrestricted Subsidiary.  All such outstanding Investments will be valued at their Fair Market Value at the time of such designation.  A designation will be permitted only if such Restricted Payment would be permitted at that time and if such Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary.”

 

(c)                                  The Board of Directors may redesignate an Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would not cause a Default or Event of Default.

 

(d)                                 After the Issue Date, designations of Restricted Subsidiaries and Unrestricted Subsidiaries shall be evidenced to the Trustee in an Officers’ Certificate from the Company certifying compliance with this Section 1016.

 

SECTION 1017.                          Payments for Consent.

 

The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid or is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

 

SECTION 1018.                          [Intentionally Omitted].

 

SECTION 1019.                          Reports.

 

Whether or not required by the rules and regulations the Commission, so long as any Notes are outstanding, the Company will furnish to the Holders (with a copy to the Trustee), within the time by which the Company would be required to file such information or reports with the Commission if it were subject to Section 13 or 15(d) of the Exchange Act as a non-accelerated filer:

 

(1)                                 all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms, including a “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent accountants; and

 

(2)                                 all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.

 

Notwithstanding the foregoing, the reports referred to above will not be required to contain the separate financial statements or other information contemplated by Rule 3-16 of Regulation S-X or separate financial statements or a guarantor footnote for the Notes Guarantors that would be required under Section 3-10 of Regulation S-X.

 

The Company shall be deemed to have complied with this covenant, and shall be deemed to have provided such documents to the Holders and to the Trustee, to the extent the Company has filed or furnished such documents and reports referred to in clauses (1) and (2) above with the Commission via the EDGAR system or any successor electronic delivery procedures within the time period specified above.

 

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At any time that the Company (and any applicable direct or indirect parent entity) is not subject to the reporting requirements of Section 13 and 15(d) of the Exchange Act and is not permitted to file the reports referred to above with the Commission, in lieu of filing such reports with the Commission, the Company may make available such information electronically (including by posting to a non-public, pass-word-protected website maintained by the Company or a third party) to any Holder, any bona fide prospective investor in the Notes, any bona fide market maker (or person who intends to be a market maker) in the Notes or any bona fide securities analyst, in each case, who provides to the Company its email address, employer name and other information reasonably requested by the Company.

 

In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding (unless satisfied and discharged or defeased), the Company will furnish to the Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision).

 

SECTION 1020.                          Statement by Officers as to Default; Compliance Certificates.

 

The Company will deliver to the Trustee, within 120 days after the end of each fiscal year (which as of the Issue Date is the Saturday nearest September 30) of the Company ending after the date hereof an Officers’ Certificate (in which one of the two Officers signing such certificate is either a principal executive officer, principal financial officer or principal accounting officer of the Company), stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder), and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

 

SECTION 1021.                          Waiver of Certain Covenants.

 

Subject to Section 902, the Company may omit in any particular instance to comply with any covenant or condition set forth in Article Eight and Sections 1004 to 1022, inclusive, Article Eleven, and Section 1306 if before or after the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Notes shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.

 

SECTION 1022.                          Covenant Suspension.

 

(a)                                 Upon the occurrence of any Investment Grade Event, the Company and its Restricted Subsidiaries will no longer be obligated to comply with the following restrictive covenants:  1008, 1009, 1010, 1013, 1014, 1015, 1017 and clause (a)(4) of Section 801, of this Indenture (collectively, the “Suspended Covenants”), and the Company and its Restricted Subsidiaries shall have no obligation or liability in respect of such sections for such period. Additionally, upon the occurrence of an Investment Grade Event, the amount of Excess Proceeds will be reset to zero.

 

(b)                                 In the event that the Company and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of the occurrence of an Investment Grade Event and, subsequently, one or both of the Rating Agencies withdraw their ratings or downgrade the ratings assigned to the Notes below Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then the Company and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants (the “Reinstatement Date”).  Compliance with the Suspended Covenants with respect

 

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to Restricted Payments made after the time of such withdrawal, downgrade, Default or Event of Default will be calculated in accordance with Section 1009 as though such Section 1009 had been in effect during the entire period of time from the Issue Date.

 

(c)                                  The Company shall promptly deliver to the Trustee an Officers’ Certificate notifying it of the termination of the Suspension Period due to one or both of the Rating Agencies withdrawing their ratings or downgrading the ratings assigned to the Notes below Investment Grade Ratings, upon which the Trustee may conclusively rely.  The Trustee shall have no duty to monitor, inquire or verify the treatment of the Notes by the Ratings Agencies or otherwise to determine the factual basis for the Company’s determination of the occurrence, timing of or expiration of a Suspension Period.

 

(d)                                 No Default or Event of Default or breach of any kind shall be deemed to exist or have occurred under this Indenture, the Notes or the Notes Guarantees with respect to the Suspended Covenants based on, and none of the Company or its Subsidiaries shall bear any liability for, any violation of the Suspended Covenants arising solely from actions taken or events occurring during the Suspension Period, or any violation of the Suspended Covenants arising solely from actions taken at any time pursuant to any contractual obligations arising prior to the Reinstatement Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period.

 

ARTICLE ELEVEN
 REDEMPTION OF NOTES

 

SECTION 1101.                          Right of Redemption.

 

(a)                                 Except as provided below, the Notes are not redeemable prior to final maturity.

 

(b)                                 At any time and from time to time, the Company may redeem all or any portion of the Notes (including any Additional Notes) at a Redemption Price equal to the sum of 100% of the principal amount of Notes to be redeemed, plus accrued and unpaid interest to but excluding the Redemption Date (subject to the rights of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), plus the Make-Whole Premium as of the Redemption Date.

 

(c)                                  Notwithstanding the foregoing, at any time and from time to time prior to June 1, 2017, the Company may redeem up to 35% of the aggregate principal amount of the Notes outstanding at a Redemption Price equal to 104.375% of the principal amount thereof on the Redemption Date, together with accrued and unpaid interest to, but excluding, such Redemption Date (subject to the rights of Holders on the relevant Regular Record Date to receive payments of interest on the related Interest Payment Date), with the Capital Stock Sale Proceeds of one or more public or private sales of Equity Interests of the Company (other than Disqualified Stock); provided, however, that at least 65% in aggregate principal amount of the Notes originally issued remains outstanding immediately after the occurrence of such redemption; and provided, further, that such redemption occurs no later than the 120th day following such sale of Equity Interests.

 

SECTION 1102.                          Applicability of Article.

 

Redemption of Notes at the election of the Company, as permitted by any provision of this Indenture, shall be made in accordance with this Article.

 

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SECTION 1103.                          Election to Redeem; Notice to Trustee.

 

The election of the Company to redeem any Notes pursuant to Section 1101 shall be evidenced by a Board Resolution.  In case of any redemption at the election of the Company of the Notes, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, the principal amount of Notes to be redeemed and the subsection of this Indenture pursuant to which redemption shall occur.

 

SECTION 1104.                          Selection by Trustee of Notes to be Redeemed.

 

(a)                                 If less than all the Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Notes not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and in accordance with the procedures of the Depositary, and which may provide for the selection for redemption of portions equal to $2,000 or an integral multiple of $1,000 in excess thereof of the principal amount of Notes of a denomination larger than $2,000; provided that the Trustee shall select the Notes to be redeemed on as nearly a pro rata basis as is practicable; provided, further that redemptions of interests in Global Notes held by the Depositary shall be made in accordance with the procedures of the Depositary.

 

(b)                                 The Trustee shall promptly notify the Company and each Note Registrar in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.

 

(c)                                  For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed.

 

SECTION 1105.                          Notice of Redemption.

 

(a)                                 Notice of redemption shall be given by first-class mail, postage prepaid, mailed, or delivered in accordance with the applicable procedures of the Depositary, not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder to be redeemed, at his address appearing in the Note Register.

 

(b)                                 All notices of redemption shall state:

 

(1)                                 the Redemption Date and the CUSIP or ISIN number of the Notes, as applicable;

 

(2)                                 the calculation of the Redemption Price;

 

(3)                                 whether the redemption is being made pursuant to subsection 1101(b) or (c);

 

(4)                                 if less than all the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Notes to be redeemed;

 

(5)                                 that on the Redemption Date the Redemption Price will become due and payable upon each such Note to be redeemed and that interest thereon will cease to accrue on and after said date; and

 

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(6)                                 the place or places where such Notes are to be surrendered for payment of the Redemption Price.

 

(c)                                  At the Company’s request (which request may be revoked by the Company at any time prior to the time at which the Trustee shall have given such notice to the Holders), made in writing to the Trustee at least 45 days (or such shorter period as shall be satisfactory to the Trustee) prior to the Redemption Date and the Trustee shall give the notice of redemption in the name and at the expense of the Company.  If, however, the Company gives such notice to the Holders, the Company shall concurrently deliver a copy of such notice to the Trustee.

 

(d)                                 Notice of redemption shall be deemed to be given when mailed or delivered in accordance with the applicable procedures of the Depositary, whether or not the Holder receives the notice.  In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of the Notes held by Holders to whom such notice was properly given. Notices of redemption are irrevocable.

 

SECTION 1106.                          Deposit of Redemption Price.

 

On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Notes which are to be redeemed on that date.

 

SECTION 1107.                          Notes Payable on Redemption Date.

 

(a)                                 Notice of redemption having been given as provided in Section 1105, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Notes shall cease to bear interest.  Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Company at the Redemption Price, together with accrued interest to, but excluding, the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders registered as such at the close of business on the Regular Record Dates.

 

(b)                                 If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal amount (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate provided by the Note in accordance with Section 307.

 

SECTION 1108.                          Notes Redeemed in Part.

 

Any Note which is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 1002 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal amount of the Note so surrendered.

 

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ARTICLE TWELVE
 GUARANTEES

 

SECTION 1201.                          Notes Guarantee.

 

(a)                                 Subject to the provisions of this Article Twelve, each Notes Guarantor, jointly and severally, hereby fully and unconditionally guarantees to each holder of a Note authenticated and delivered by the Trustee and to the Trustee, irrespective of the validity or enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder:

 

(1)                                 the due and punctual payment of the principal of (and premium, if any) and interest on, the Notes, whether at Stated Maturity or on an Interest Payment Date, by acceleration, call for redemption or otherwise (subject to any applicable grace period);

 

(2)                                 the due and punctual payment of interest on the overdue principal and premium, if any, of, and interest on, the Notes, if lawful;

 

(3)                                 the due and punctual payment and performance (subject to any applicable grace period) of all other obligations of the Company under this Indenture and the Notes; and

 

(4)                                 in case of any extension of time of payment or renewal of any Notes or any of such other obligations under this Indenture or under the Notes, the due and punctual payment or performance thereof (subject to any applicable grace period) in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption or otherwise.

 

(b)                                 Failing payment when due by the Company of any amount so Guaranteed for whatever reason, the Notes Guarantors shall be jointly and severally obligated to pay the same immediately.  An Event of Default under this Indenture or the Notes shall constitute an event of default under this Notes Guarantee, and shall entitle the Holders or the Trustee to accelerate the obligations of the Notes Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.

 

(c)                                  Each Notes Guarantor hereby agrees that (1) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes, this Indenture or the obligations of the Company hereunder or thereunder, the absence of any action to enforce the same, whether or not a Notes Guarantee is affixed to any particular Note, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any amendment of this Indenture or the Notes, the recovery of any judgment against the Company or any its Subsidiaries, any action to enforce the same, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment in full of the Notes) and (2) subject to Section 1207, each Notes Guarantee will not be discharged except by complete performance of the obligations of the Company under the Notes and this Indenture.

 

(d)                                 The Notes Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that

 

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any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

 

(e)                                  Each Notes Guarantor hereby agrees that it shall not be entitled to and irrevocably waives diligence, presentment, demand of payment, filing of claim with a court in the event of insolvency or bankruptcy of the Company, any Notes Guarantor, any other Subsidiary of the Company or any other obligor under the Notes, any right to require a proceeding first against the Company, any Notes Guarantor, any other Subsidiary of the Company or any other obligor under this Indenture or the Notes and any right, protest, notice and all demands whatsoever.

 

(f)                                   If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Notes Guarantor, any other Subsidiary of the Company or any other obligor under this Indenture or the Notes or any trustee, liquidator or other similar official, any amount paid by the Company, any Notes Guarantor, any other Subsidiary of the Company or any other obligor under this Indenture or the Notes to the Trustee or such Holder, the Notes Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

(g)                                  Each Notes Guarantor agrees that, as between the Notes Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations of the Company guaranteed hereby may be accelerated as provided in Article Five for the purposes of the Notes Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those obligations as provided in Article Five, those obligations (regardless of whether due and payable) will forthwith become due and payable by each of the Notes Guarantors for the purpose of the Notes Guarantees.

 

(h)                                 No shareholder, officer, director, employee or incorporator, past, present or future, of any Notes Guarantor, as such, shall have any personal liability under this Notes Guarantee by reason of his, her or its status as such shareholder, officer, director, employee or incorporator.

 

SECTION 1202.                          Execution and Delivery of the Notes Guarantees.

 

(a)                                 To evidence the Notes Guarantees set forth in Section 1201, the Company and each Notes Guarantor hereby agrees that:

 

(1)                                 a notation of the Notes Guarantees substantially as set forth on Exhibit E hereto shall be endorsed on each Note authenticated and delivered by the Trustee; and

 

(2)                                 such endorsement shall be executed on behalf of each Notes Guarantor by any one officer of such Notes Guarantor;

 

(b)                                 Each Notes Guarantor hereby agrees that its Notes Guarantee set forth in Section 1201 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Notes Guarantee.

 

(c)                                  If an officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Notes on which a Notes Guarantee is endorsed, the Notes Guarantee shall nevertheless be valid.

 

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

 

(e)                                  Such signatures upon this Indenture and endorsement may be by manual or facsimile signature of such officers and may be imprinted or otherwise reproduced on this Indenture.

 

SECTION 1203.                          Limitation on Notes Guarantors’ Liability.

 

Each Notes Guarantor and by its acceptance hereof each Holder hereby confirms that it is the intention of all such parties that the guarantee by such Notes Guarantor pursuant to its Notes Guarantee not constitute a fraudulent transfer or conveyance for purposes of any federal or state law.  To effectuate the foregoing intention, the Holders and the Notes Guarantors hereby irrevocably agree that the obligations of each Notes Guarantor under its Notes Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Notes Guarantor and to any collections from or payments made by or on behalf of any other Notes Guarantor in respect of the obligations of such other Notes Guarantor under its Notes Guarantee, result in the obligations of such Notes Guarantor under its Notes Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law and not rendering a Notes Guarantor insolvent.

 

SECTION 1204.                          Rights under the Notes Guarantees.

 

(a)                                 Until payment in full of the Notes, no payment by any Notes Guarantor pursuant to the provisions hereof shall give rise to any claim of the Notes Guarantor against the Trustee or any Holder.

 

(b)                                 Each Notes Guarantor waives notice of the issuance, sale and purchase of the Notes and notice from the Trustee or the Holders from time to time of any of the Notes of their acceptance and reliance on its Guarantee.

 

(c)                                  No set-off, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature (other than performance by the Notes Guarantors of their obligations hereunder) that any Notes Guarantor may have or assert against the Trustee or any Holder shall be available hereunder to such Notes Guarantor.

 

(d)                                 Each Notes Guarantor shall pay all reasonable costs, expenses and fees, including all reasonable attorneys’ fees, that may be incurred by the Trustee in enforcing or attempting to enforce the Notes Guarantees or protecting the rights of the Trustee or the Holder, if any, in accordance with this Indenture.

 

SECTION 1205.                          Primary Obligations.

 

The obligations of each Notes Guarantor hereunder shall constitute a guaranty of payment and not of collection.  Each Notes Guarantor agrees that it is directly liable to each Holder hereunder, that the obligations of each Notes Guarantor hereunder are independent of the obligations of the Company or any other Notes Guarantor, and that a separate action may be brought against each Notes Guarantor, whether such action is brought against the Company or any other Notes Guarantor or whether the Company or any other Notes Guarantor is joined in such action.  Each Notes Guarantor agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by the Trustee or the Holders of whatever remedies they may have against the Company or any other Notes Guarantor or the enforcement of any lien or realization upon any security the Trustee may at any time

 

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possess.  Each Notes Guarantor agrees that any release that may be given by the Trustee or the Holders to the Company or any other Notes Guarantor shall not release such Notes Guarantor.

 

SECTION 1206.                          Notes Guarantee by Future Domestic Subsidiaries.

 

(a)                                 The Company shall cause each Person that (i) is or becomes a Domestic Restricted Subsidiary other than an Excluded Subsidiary or (ii) is a Domestic Restricted Subsidiary that ceases to constitute an Excluded Subsidiary to execute and deliver to the Trustee and Notes Collateral Agent a supplemental indenture to this Indenture providing for a Notes Guarantee and supplements to the applicable Security Documents or new Security Documents, respectively, on a secured, senior basis, promptly after such Restricted Subsidiary becomes a Domestic Restricted Subsidiary or ceases to constitute an Excluded Subsidiary, as applicable, and take all actions required by the Security Documents to perfect the Liens created thereunder.

 

(b)                                 The Company shall deliver to the Trustee an Opinion of Counsel, in form reasonably satisfactory to the Trustee, to the effect that (A) such supplemental indenture has been duly authorized, executed and delivered by such Domestic Restricted Subsidiary, (B) such supplemental indenture constitutes the legal, valid, binding and enforceable obligations of such Domestic Restricted Subsidiary, subject to customary exceptions and carve-outs applicable to other similar opinions and (C) such Security Documents constitute the legal, valid, binding and enforceable obligations of such Domestic Restricted Subsidiary and customary opinion regarding perfection by UCC filing of the security interests in the Collateral of such Domestic Restricted Subsidiary, in each case subject to customary exceptions and carve-outs.

 

(c)                                  The fact that any Note may fail to have endorsed thereon a Notes Guarantee executed by a Notes Guarantor shall not affect the validity or enforceability of such Notes Guarantee against such Notes Guarantor.

 

SECTION 1207.                          Release of Notes Guarantors.

 

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

 

(1)                                 in connection with any sale or other disposition of all or substantially all of the assets or all of the Capital Stock of that Notes Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Domestic Restricted Subsidiary of the Company, if such sale or other disposition is in compliance with Section 1013 or does not constitute an Asset Sale;

 

(2)                                 upon the merger or consolidation of such Notes Guarantor with and into either the Company or any other Notes Guarantor that is the surviving person in such merger or consolidation or upon the liquidation of such Notes Guarantor following the transfer of all or substantially all of its property and assets to either the Company or another Notes Guarantor;

 

(3)                                 upon the exercise by the Company of its legal defeasance or covenant defeasance option pursuant to Article Thirteen or the discharge of the Company’s obligations pursuant to Article Four; or

 

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

 

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

 

(b)                                 If all of the conditions to release contained in this Section 1207 have been satisfied, the Trustee shall execute any documents reasonably requested by the Company or any Notes Guarantor in order to evidence the release of such Notes Guarantor from its obligations under its Notes Guarantee under this Article Twelve.

 

ARTICLE THIRTEEN
 DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 1301.                          Company’s Option to Effect Defeasance or Covenant Defeasance.

 

The Company may at its option, by Board Resolution, at any time, elect to have either Section 1302 or Section 1303 applied to the Outstanding Notes upon compliance with the conditions set forth below in this Article Thirteen.

 

SECTION 1302.                          Defeasance and Discharge.

 

Upon the Company’s exercise of the option provided in Section 1301 applicable to this Section 1302, the Company and the Notes Guarantors shall be deemed to have been discharged from their obligations with respect to the Outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “defeasance”).  For this purpose, such defeasance means that the Company and the Notes Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes and the Company and the Notes Guarantors will be deemed to have satisfied all of their other obligations under such Notes, the Notes Guarantees and this Indenture insofar as such Notes and Notes Guarantees are concerned (and the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:  (a) the rights of Holders of such Notes to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section 1304, payments in respect of the principal of (and premium, if any) and interest on such Notes when such payments are due, (b) the Company’s obligations with respect to such Notes under Sections 305, 306, 1002 and 1003, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article Thirteen.  Subject to compliance with this Article Thirteen, the Company may exercise its option under this Section 1302 notwithstanding the prior exercise of its option under Section 1303.

 

SECTION 1303.                          Covenant Defeasance.

 

Upon the Company’s exercise of the option provided in Section 1301 applicable to this Section 1303, (a) the Company and the Notes Guarantors shall be released from their obligations under Sections 1005 through 1019 inclusive, Section 1206 and clause (a)(4) of Section 801, (b) the occurrence of an event specified in Sections 501(a)(3) (with respect to clause (a)(4) of Section 801), 501(a)(4) (with respect to any of Sections 1008 through 1014, inclusive, Sections 1016, 1018 and 1206), 501(a)(5), 501(a)(6), 501(a)(7) (with respect to Significant Subsidiaries or Restricted Subsidiaries that individually or in the aggregate would constitute a Significant Subsidiary), and 501(a)(8), inclusive, shall not be deemed to be an Event of Default (hereinafter, “covenant defeasance”).  For this purpose, such covenant defeasance means that the Company and its Restricted Subsidiaries may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, Clause or Article, whether directly or indirectly by reason of any reference elsewhere herein to any such Section,

 

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Clause or Article or by reason of any reference in any such Section, Clause or Article to any other provision herein or in any other document, but the remainder of this Indenture and such Notes shall be unaffected thereby.

 

SECTION 1304.                          Conditions to Defeasance or Covenant Defeasance.

 

The following shall be the conditions to application of either Section 1302 or Section 1303 to the then Outstanding Notes:

 

(a)                                 The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, dedicated solely to the benefit of the Holders of such Notes, (1) money in an amount, or (2) U.S. Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (3) a combination thereof, sufficient to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (premium, if any,) and each installment of interest on the Outstanding Notes on the Stated Maturity (or Redemption Date, if applicable) of such principal or installment of interest in accordance with the terms of this Indenture and of such Notes;

 

(b)                                 The Company delivers a certificate to the Trustee (or other qualifying trustee) from a nationally recognized firm of independent registered public accountants expressing their opinion that the amounts deposited pursuant to subsection (a) of this Section 1304 (without reinvestment on the deposited money or U.S. Government Obligations or combination thereof) will provide cash at such times and in such amounts as will be sufficient to pay principal (premium, if any) and interest when due on all the Notes to Stated Maturity or redemption, as the case may be;

 

(c)                                  In the case of an election under Section 1302, the Company shall have delivered to the Trustee an Opinion of Counsel qualified to practice law in the United States stating that:

 

(1)                                 the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or

 

(2)                                 since the date of this Indenture there has been a change in the applicable U.S. Federal income tax law,

 

to the effect, in either case, that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;

 

(d)                                 In the case of an election under Section 1303, the Company shall have delivered to the Trustee an Opinion of Counsel qualified to practice law in the United States to the effect that the Holders of the Outstanding Notes will not recognize gain or loss for U.S. Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;

 

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(e)                                  Such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 608 and for purposes of the Trust Indenture Act with respect to any securities of the Company;

 

(f)                                   No Default or Event of Default of the Company or such Person making the deposit in clause (a) shall have occurred and be continuing on the date of such deposit or, insofar as clause 501(a)(7) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);

 

(g)                                  The Company shall have delivered to the Trustee an Opinion of Counsel qualified to practice law in the United States to the effect that such deposit shall not cause the trust so created to be subject to the Investment Company Act of 1940;

 

(h)                                 Such deposit, defeasance or covenant defeasance and discharge shall not result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the Company is a party or by which the Company is bound;

 

(i)                                     The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to either the defeasance under Section 1302 or the covenant defeasance under Section 1303 (as the case may be) have been complied with; and

 

Upon satisfaction of the above conditions in order to effect a defeasance or conveyance defeasance, all Notes Guarantors will be fully and unconditionally released from their obligations under this Indenture.

 

SECTION 1305.                          Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.

 

(a)                                 The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against any U.S. Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Notes.

 

(b)                                 Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 1304 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance.

 

SECTION 1306.                          Reinstatement.

 

If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 1302 or 1303 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Notes, and the obligations of the Notes Guarantors under the Notes Guarantees, shall be revived and reinstated as though no deposit had occurred pursuant to this Article Thirteen until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1302 or 1303; provided, however, that if the Company makes any payment of principal of, and premium, if any, or

 

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interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or the Paying Agent.

 

ARTICLE FOURTEEN
 COLLATERAL

 

SECTION 1401.                 Security Documents.

 

The due and punctual payment of the principal of, premium and interest on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes and payment and performance of the Notes Obligations, shall be secured as provided in the Security Documents, which define the terms of the Liens that secure the Notes Obligations, subject to the terms of the Intercreditor Agreement.  The Trustee and the Company hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral as agent for the benefit of the Holders and the Trustee and pursuant to the terms of the Security Documents and the Intercreditor Agreement.  Each Holder, by accepting a Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreement as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and the Intercreditor Agreement, and authorizes and directs the Notes Collateral Agent to enter into the Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith.  The Company shall, and shall cause its Subsidiaries to, take any and all actions and make all filings, registrations and recordations (including the filing of Uniform Commercial Code financing statements, continuation statements and amendments thereto) in all such jurisdictions to the extent required under the Security Documents to create, perfect and maintain, as security for the Notes Obligations of the Issuer and the Guarantors to the Notes Collateral Agent, the Trustee and the Holders under this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement and the Security Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreement and the Security Documents), in favor of the Notes Collateral Agent for the benefit of the Trustee and the Holders subject to no Liens other than Permitted Liens.  The Company shall deliver to the Notes Collateral Agent and the Trustee copies of all documents required to be filed pursuant to the Security Documents.

 

SECTION 1402.                 Release of Collateral.

 

(a)                                 The Company and the Notes Guarantors will be entitled to the releases of property and other assets included in the Collateral from the Liens securing the Notes Obligations, and such Liens securing the Notes Obligations solely on the applicable Collateral shall be automatically released, under any one or more of the following circumstances:

 

(1)                                 in part, to enable the Company and the Notes Guarantors to consummate the disposition of property or assets (including Equity Interests) (other than any disposition to the Company or a Guarantor) to the extent not prohibited by Section 1013 or not constituting an Asset Sale;

 

(2)                                 in part, in the case of a Notes Guarantor that is released from its Notes Guarantee, to release the property and assets of such Notes Guarantor;

 

(3)                                 in part in accordance with the provisions of the Security Documents and as described above with respect to the Intercreditor Agreement;

 

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(4)                                 in whole or in part, as applicable, as to all or any portion of the Collateral which has been taken by eminent domain, condemnation or similar circumstances;

 

(5)                                 in whole or in part, pursuant to Article Nine; or

 

(6)                                 upon satisfaction and discharge pursuant to Article Four or a legal defeasance or covenant defeasance pursuant to Article Thirteen.

 

(b)                                 With respect to any release of Collateral, upon receipt of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Security Documents, if any, to such release have been met and that the Trustee or the Notes Collateral Agent is authorized and permitted under the Indenture to execute and deliver the documents requested by the Company in connection with such release, and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee shall, or shall cause the Notes Collateral Agent to, execute, deliver or acknowledge (at the Company’s expense) such instruments or releases, and authorize the filing of UCC financing statement amendments or termination statements as applicable, to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents.  Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien or security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate and Opinion of Counsel.

 

(c)                                  The release of any Collateral from the terms of the Security Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture.  The Trustee and each of the Holders each acknowledge and direct the Trustee and the Notes Collateral Agent that a release of Collateral or a Lien in accordance with the terms of any Collateral Document and this Article Fourteen will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.

 

SECTION 1403.                 Suits to Protect the Collateral.

 

Subject to the provisions of Article Six and the Security Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, on behalf of the Holders, may or may direct the Notes Collateral Agent to take all actions it determines in order to:

 

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

 

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

 

Subject to the provisions of the Security Documents and the Intercreditor Agreement, the Trustee and the Notes Collateral Agent shall have power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this Indenture, and such suits and proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral.  Nothing in this Section 1403 shall be construed to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.

 

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SECTION 1404.                 Authorization of Receipt of Funds by the Trustee Under the Security Documents.

 

Subject to the provisions of the Intercreditor Agreement, the Notes Collateral Agent is authorized to receive any funds for the benefit of the Trustee and the Holders distributed under the Security Documents, and to make further distributions of such funds to the Trustee and the Trustee is authorized to receive any funds for the benefit of itself and the Holders and to make further distributions of such funds according to the provisions of this Indenture.

 

SECTION 1405.                 Purchaser Protected.

 

In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article Fourteen to be sold be under any obligation to ascertain or inquire into the authority of the Company or the applicable Notes Guarantor to make any such sale or other transfer.

 

SECTION 1406.                 Powers Exercisable by Receiver or Trustee.

 

In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article Fourteen upon the Company or a Notes Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Notes Guarantor or of any Officer or Officers thereof required by the provisions of this Article Fourteen; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.

 

SECTION 1407.                 Notes Collateral Agent.

 

(a)                                 The Trustee and each of the Holders by acceptance of the Notes hereby designate and appoint the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorize the Notes Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreement, and consent and agree to the terms of the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms and this Indenture.  The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 1407.  The provisions of this Section 1407 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders or any of the Company or the Notes Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein.  Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders.  Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents and the Intercreditor Agreement, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents or the Intercreditor Agreement to

 

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which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Company or any Notes Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor Agreement or otherwise exist against the Notes Collateral Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

 

(b)                                 The Notes Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel.  The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.

 

(c)                                  None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction) or under or in connection with any Security Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Notes Guarantor or Affiliate of the Company or any Notes Guarantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents or the Intercreditor Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreement, or for any failure of the Company or any Notes Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder.  None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of the Company or any Notes Guarantor or any of their respective Affiliates.

 

(d)                                 The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or email) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any Notes Guarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent.  The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document.  The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this 

 

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Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  Subject to the provisions of the Security Documents, the Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.

 

(e)                                  The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.”  The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Five or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 1407 and the provisions of the Security Documents).

 

(f)                                   The Notes Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent.  If the Notes Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent.  If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent.  If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction, at the expense of the Company, to appoint a successor.  Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated.  After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 1407 (and Section 607) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.

 

(g)                                  U.S. Bank National Association shall initially act as Notes Collateral Agent and shall be authorized to appoint co-collateral agents as necessary in its sole discretion.  Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof.  The Notes Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.

 

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(h)                                 The Notes Collateral Agent is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on or after the Issue Date, (ii) enter into the Intercreditor Agreement, (iii) make the representations of the Holders set forth in the Security Documents and Intercreditor Agreement, (iv) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (v) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.

 

(i)                                     The Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the UCC can be perfected only by possession.  Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.

 

(j)                                    The Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any Notes Guarantor or is cared for, protected, or insured or has been encumbered, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Company’s or any Notes Guarantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Notes Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.

 

(k)                                 If the Company or any Notes Guarantor (i) incurs any obligations in respect of ABL Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting ABL Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the ABL Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Company, including legal fees and expenses of the Notes Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.

 

(l)                                     No provision of this Indenture, the Intercreditor Agreement or any Security Document shall require the Notes Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Notes Collateral Agent) unless it shall have received indemnity satisfactory to the Notes Collateral Agent against potential costs and liabilities incurred by the Notes Collateral Agent relating thereto.  Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement or the Security Documents, in the event the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any

 

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remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Notes Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Notes Collateral Agent in its sole discretion, protecting the Notes Collateral Agent from all such liability.  The Notes Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.

 

(m)                             The Notes Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreement and the Security Documents or instruments referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Company (and money held in trust by the Notes Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel.  The grant of permissive rights or powers to the Notes Collateral Agent shall not be construed to impose duties to act.

 

(n)                                 Neither the Notes Collateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control.  Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.  Neither the Notes Collateral Agent nor the Trustee shall be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.

 

(o)                                 The Notes Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Company or any Notes Guarantor under this Indenture, the Intercreditor Agreement and the Security Documents.  Neither the Notes Collateral Agent nor the Trustee shall be responsible for the existence, genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral (except for the safe custody of Collateral in its possession), or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien. The Notes Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any this Indenture, any Security Documents, the Intercreditor Agreement or in any certificate, report, statement, or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or any Security Document; the validity, enforceability or collectability of any Notes Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture, the Intercreditor Agreement and the Security Documents.  The Notes Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture, the Intercreditor Agreement and the Security Documents, or the satisfaction of any conditions precedent contained in this Indenture, the Intercreditor Agreement and any Security Documents.  The Notes Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreement and the Security Documents unless expressly set forth hereunder or thereunder.  The Notes Collateral Agent shall have the right at any time to seek instructions from the Trustee or 

 

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the Holders with respect to the administration of this Indenture, the Security Documents and the Intercreditor Agreement.

 

(p)                                 The parties hereto and the Holders hereby agree and acknowledge that the Notes Collateral Agent shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreement, the Security Documents or any actions taken pursuant hereto or thereto.  Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the Intercreditor Agreement and the Security Documents, the Notes Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent in the Collateral and that any such actions taken by the Notes Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral.

 

(q)                                 Upon the receipt by the Notes Collateral Agent of a written request of the Company signed by two Officers (a “Security Document Order”), the Notes Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document to be executed after the Issue Date.  Such Security Document Order shall (i) state that it is being delivered to the Notes Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 1407(q), and (ii) instruct the Notes Collateral Agent to execute and enter into such Security Document.  Any such execution of a Security Document shall be at the direction and expense of the Company, upon delivery to the Notes Collateral Agent of an Officers’ Certificate and Opinion of Counsel stating that such execution and delivery of the Security Documents is permitted by the Indenture and the Security Documents.  The Holders, by their acceptance of the Notes, hereby authorize and direct the Notes Collateral Agent to execute such Security Documents.

 

(r)                                    Subject to the provisions of the applicable Security Documents and the Intercreditor Agreement, each Holder, by acceptance of the Notes, agrees that the Notes Collateral Agent shall execute and deliver the Intercreditor Agreement and the Security Documents to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof.  For the avoidance of doubt, the Notes Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreement or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable.

 

(s)                                   After the occurrence and during the continuance of an Event of Default, the Trustee may direct the Notes Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreement.

 

(t)                                    The Notes Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreement and to the extent not prohibited under the Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 506 and the other provisions of this Indenture.

 

(u)                                 Notwithstanding anything to the contrary in this Indenture or any other Notes Document, in no event shall the Notes Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security

 

110











 

interests or Liens intended to be created by this Indenture or the other Note Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Notes Collateral Agent or the Trustee be responsible for, and neither the Notes Collateral Agent nor the Trustee makes any representation regarding the existence, genuineness, value or protection of any Collateral (except for the custody of Collateral in its possession), for, the validity, legality, effectiveness or sufficiency of any of the Security Documents or the creation, perfection, priority, sufficiency or protection of security interests or Liens intended to be created thereby.

 

(v)                                 Before the Notes Collateral Agent acts or refrains from acting in each case at the request or direction of the Company or the Notes Guarantors, it may require an Officers’ Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 102.  The Notes Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

 

(w)                               The Notes Collateral Agent shall be entitled to all of the rights, privileges, benefits, immunities and protections afforded to the Trustee under Article VII.

 

SECTION 1408.                          Material Real Property.

 

17 of the Security Agreement with respect to Material Real Property (as defined in the Security Agreement).

 

SECTION 1409.                 Trust Indenture Act Not Applicable.

 

Until such time as this Indenture shall be qualified under the Trust Indenture Act, notwithstanding anything to the contrary herein, the Company is not required to comply with the provisions of Section 313(b), Section 314(b) and Section 314(d) of the Trust Indenture Act in connection with this Indenture or any release of Collateral.

 




 

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

 

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

 

	
 
    	
The Trustee and Notes Collateral Agent
    
	
 
    	
 
    
	
 
    	
U.S. BANK NATIONAL ASSOCIATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Paula M. Oswald
    
	
 
    	
 
    	
Name: Paula M. Oswald
    
	
 
    	
 
    	
Title: Vice President
    


 

SIGNATURE PAGE TO INDENTURE

 












 

	
 
    	
The Company
    
	
 
    	
 
    
	
 
    	
SANMINA CORPORATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Robert K. Eulau
    
	
 
    	
 
    	
Name: Robert K. Eulau
    
	
 
    	
 
    	
Title: Executive Vice President and Chief   Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brian P. Casey
    
	
 
    	
 
    	
Name: Brian P. Casey
    
	
 
    	
 
    	
Title: Senior Vice President and Treasurer
    


 

SIGNATURE PAGE TO INDENTURE

 











 

	
 
    	
Notes Guarantors
    
	
 
    	
 
    
	
 
    	
HADCO CORPORATION
    
	
 
    	
HADCO SANTA CLARA, INC.
    
	
 
    	
SANMINA-SCI SYSTEMS HOLDINGS, INC.
    
	
 
    	
SCI   TECHNOLOGY, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
All by:
    	
/s/ Robert K. Eulau
    
	
 
    	
 
    	
Name: Robert K. Eulau
    
	
 
    	
 
    	
Title: Chief Financial Officer
    


 

SIGNATURE PAGE TO INDENTURE

 











 

EXHIBIT A

 

[FACE OF NOTE]

 

[APPLICABLE LEGENDS PURSUANT TO SECTION 202]

 

SANMINA CORPORATION

 

4.375% Senior Secured Note due 2019

 

[CUSIP] [ISIN] [                    ]

 

	
No.
    	
$
    


 

SANMINA CORPORATION, a Delaware corporation (the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, promises to pay to                         , or its registered assigns, the principal amount of                          ($        ) [If this Note is a Global Note, then insert — (such principal amount may from time to time be increased or decreased to such other principal amounts (which, taken together with the principal amounts of all other Outstanding Notes, shall not exceed the sum of (a) $          plus (b) the principal amount of any Additional Notes issued pursuant to the within-mentioned Indenture) by adjustments made on the records of the Trustee referred to in the Indenture)] on June 1, 2019.

 

Interest Payment Dates:  June 1 and December 1.

 

Regular Record Dates:  May 15 and November 15.

 

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall 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 its duly authorized officers.

 

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The Company
    
	
 
    	
 
    
	
 
    	
SANMINA CORPORATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

(Trustee’s Certificate of Authentication)

 

This is one of the 4.375% Senior Secured Notes due 2019 described in the within-mentioned Indenture.

 

Date:

 

	
 
    	
U.S. BANK NATIONAL ASSOCIATION
    
	
 
    	
as Trustee
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Authorized Signatory
    


 

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[REVERSE SIDE OF NOTE]

 

SANMINA CORPORATION

 

4.375% Senior Secured Note due 2019

 

1.                                      Principal and Interest.

 

The Company will pay the principal amount of this Note on June 1, 2019.

 

The Company promises to pay on each Interest Payment Date, 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 4.375% per annum.  Interest shall be payable semi-annually in arrears on each June 1 and December 1, commencing December 1, 2014.

 

Interest on the Notes will accrue from and including the date of original issuance or, if interest has already been paid, from the date it was most recently paid.  Interest will be calculated using a 360-day year consisting of twelve 30-day months.  If any Interest Payment Date of the Notes falls on a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day and no interest on such payment will accrue as a result of such delay.

 

The Company will pay interest on overdue principal and on overdue interest at the rate borne by the Notes to the extent lawful.

 

2.                                      Method of Payment.

 

The Company will pay principal as provided above and interest (except Defaulted Interest) on the principal amount of the Notes as provided above on each June 1 and December 1, to the Persons who are Holders (as reflected in the Note Register at the close of business on the May 15 or November 15 immediately preceding the Interest Payment Date, such date referred to herein as the “Regular Record Date”), in each case, even if the Note is cancelled on registration of transfer or registration of exchange after such Regular Record Date.

 

The Company will pay principal (and premium, if any), and as provided above, interest, in money of the United States that at the time of payment is legal tender for payment of public and private debts.  However, the Company may pay principal (and premium, if any), and interest by its check payable in such money.  It may mail an interest check to a Holder’s registered address (as reflected in the Note Register).  If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period if and to the extent the required payment is made on the next succeeding Business Day.

 

3.                                      Paying Agent and Note Registrar.

 

Initially, the Trustee will act as authenticating agent, Paying Agent and Note Registrar.  The Company may change any authenticating agent, Paying Agent or Note Registrar without notice.  The Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent, Note Registrar or co-Note Registrar.

 

4.                                      Indenture; Limitations.

 

The Company issued the Notes under an Indenture among the Company, each of the Notes Guarantors named therein and U.S. Bank National Association, as trustee (the “Trustee”) and as 

 

A-3











 

collateral agent (the “Notes Collateral Agent”), dated as of June 4, 2014 (the “Indenture”).  Capitalized terms herein are used as defined in the Indenture unless otherwise indicated.  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.  The Notes are subject to all such terms and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms.  To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control.

 

The Notes are senior obligations of the Company.

 

The Company may, subject to the provisions of the Indenture and applicable law, issue Additional Notes under the Indenture.

 

5.                                      Optional Redemption.

 

Except as provided below, the Notes are not redeemable prior to final maturity.

 

At any time and from time to time, the Company may redeem all or any portion of the Notes (including any Additional Notes) at a Redemption Price equal to the sum of 100% of the principal amount of Notes to be redeemed, plus accrued and unpaid interest to but excluding the Redemption Date (subject to the rights of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), plus the Make-Whole Premium as of the Redemption Date.

 

Notwithstanding the foregoing, at any time and from time to time prior to June 1, 2017, the Company may redeem up to 35% of the aggregate principal amount of the Notes outstanding at a redemption price equal to 104.375% of the principal amount thereof on the Redemption Date, together with accrued and unpaid interest to, but excluding, such Redemption Date (subject to the rights of holders of record of the Notes on the relevant record date to receive payments of interest on the related interest payment date), with the Capital Stock Sale Proceeds of one or more public or private sales of Equity Interests of the Company (other than Disqualified Stock); provided, however that; at least 65% in aggregate principal amount of the Notes originally issued remains outstanding immediately after the occurrence of such redemption; and provided further, that, such redemption occurs no later than the 120th day following such sale of Equity Interests.

 

6.                                      Repurchase upon Change of Control.

 

Upon the occurrence of any Change of Control, each Holder shall have the right to require the Company to repurchase its Notes in cash pursuant to the offer described in the Indenture at the Change of Control Purchase Price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the Change of Control Purchase Date.

 

A notice of such Change of Control will be mailed within 30 days after any Change of Control occurs to each Holder by first-class mail or delivered in accordance with the applicable procedures of the depositary for the Notes at its last address as it appears in the Note Register.  Notes in original denominations larger than $2,000 may be sold to the Company in part (equal to $2,000 or an integral multiple of $1,000 in excess thereof).  On and after the Change of Control Purchase Date, interest shall cease to accrue on Notes or portions of Notes surrendered for purchase by the Company, unless the Company defaults in the payment of the Change of Control Purchase Price.

 

A-4











 

7.                                      Denominations; Transfer; Exchange.

 

The Notes are in registered form without coupons in minimum denominations of $2,000 of principal amount and multiples of $1,000 in excess thereof.  A Holder may register the transfer or exchange of Notes in accordance with the Indenture.  The Note Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.  The Note Registrar need not register the transfer or exchange of any Notes selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.  Also, it need not issue, register the transfer of or exchange any Notes during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of Notes selected for redemption.

 

8.                                      Persons Deemed Owners.

 

A Holder shall be treated as the owner of a Note for all purposes.

 

9.                                      Amendment; Supplement; Waiver.

 

Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of Outstanding Notes, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in principal amount of Outstanding Notes.  Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency and make any change that does not adversely affect the rights of any Holder.

 

10.                               Restrictive Covenants.

 

The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries, among other things, to Incur additional Debt, make Restricted Payments, suffer to exist restrictions on the ability of Restricted Subsidiaries to make certain payments to the Company, engage in transactions with Affiliates, suffer to exist or incur Liens, use the proceeds from Asset Sales, or merge, consolidate or transfer substantially all of their assets.  The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof an Officers’ Certificate (in which one of the two Officers signing such certificate is either a principal executive officer, principal financial officer or principal accounting officer of the Company), stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of the Indenture (without regard to any period of grace or requirement of notice provided hereunder), and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.  During a Suspension Period, the Company will not be subject to a majority of these restrictive covenants.

 

11.                               Successor Persons.

 

When a successor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations except in limited circumstances described in the Indenture.

 

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12.                               Defaults and Remedies.

 

The Indenture sets forth events that constitute an Event of Default under the Indenture.  If an Event of Default shall occur and be continuing, there may be declared due and payable the principal amount (together with accrued and unpaid interest) on the Notes in the manner and with the effect provided in the Indenture.  If certain bankruptcy or insolvency events occur and continue with respect to the Company or its Restricted Subsidiaries that individually or in the aggregate would constitute a Significant Subsidiary, the Notes shall automatically become due and payable in accordance with the terms of the Indenture.

 

13.                               Notes Guarantees.

 

The Company’s obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by the Notes Guarantors as such Notes Guarantors may change from time to time in accordance with the terms of the Indenture.  Notes Guarantees may be released in accordance with the terms set forth in the Indenture.

 

14.                               Security.

 

The Notes will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Security Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold the Collateral in trust for the benefit of the Holders, in each case pursuant to the Security Documents. Each Holder, by accepting this Note, consents and agrees to the terms of the Security Documents (including the provisions providing for the foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Notes Collateral Agent to enter into the Security Documents, and to perform its obligations and exercise its rights thereunder in accordance therewith.

 

15.                               Trustee Dealings with the Company.

 

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

 

16.                               No Recourse Against Others.

 

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

 

17.                               Authentication.

 

This Note shall not be valid until the Trustee or authenticating agent manually signs the certificate of authentication on the other side of this Note.

 

A-6











 

18.                               Abbreviations.

 

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

 

19.                               Governing Law.

 

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

 

The Company will furnish a copy of the Indenture to any Holder upon written request and without charge.  Requests may be made to Sanmina Corporation, 2700 North First Street, San Jose, California 95134, Attention:  Treasurer.

 

A-7











 

[FORM OF TRANSFER NOTICE]

 

FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

	
 
    	
 
    


 

Please print or typewrite name and address including zip code of assignee

 

	
 
    	
 
    


 

the within Note and all rights thereunder, hereby irrevocably constituting and appointing                                                          attorney to transfer said Note on the books of the Company with full power of substitution in the premises.

 

In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the effective date of any Registration Statement relating to the registration of the Notes or (ii) the end of the period referred to in Rule 144 under the Securities Act of 1933, as amended, the undersigned confirms that without utilizing any general solicitation or general advertising that:

 

[Check One]

 

o (a)                                          this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.

 

or

 

o (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 other Note 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 Section 305 of the Indenture shall have been satisfied.

 

	
Date:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
NOTICE: The signature to this assignment   must correspond with the name as written upon the face of the   within-mentioned instrument in every particular, without alteration or any   change whatsoever.
    


 

Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit union) with membership in an approved signature medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15).

 

TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.

 

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended,

 

A-8












 

and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

	
Date:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
NOTICE: To be executed by an executive   officer
    


 

A-9











 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE

 

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

 

	
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
   decrease
   (or increase)
    	
 
    	
Signature of
   authorized signatory
   of Trustee or
   Note Custodian
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

A-10











 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you wish to have this Note purchased by the Company pursuant to Section 1013 or 1015 of this Indenture, check the Box:  o

 

If you wish to have a portion of this Note purchased by the Company pursuant to Section 1013 or 1015 of the Indenture, state the principal amount:  $                                      .

 

Date:

 

	
Your Signature:
    	
 
    	
 
    
	
 
    	
(Sign exactly as your name appears on the   other side of this Note)
    	
 
    
	
 
    	
 
    	
 
    
	
Signature Notes Guarantee:
    	
 
    	
 
    
				


 

Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit union) with membership in an approved signature medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15).

 

A-11











 

EXHIBIT B — Form of
 Regulation S Certificate

 

REGULATION S CERTIFICATE

 

U.S. Bank National Association
 633 West Fifth Street, 24th Floor
 Los Angeles, CA  90071

 

Re:                             4.375% Senior Secured Notes due 2019 of Sanmina Corporation (the “Notes”)

 

Reference is hereby made to the Indenture, dated as of June 4, 2014 (the “Indenture”), among Sanmina Corporation, the Notes Guarantors named therein and U.S. Bank National Association, as Trustee and Notes Collateral Agent.  Terms used but not defined herein and defined in Regulation S or Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), or in the Indenture shall have the meanings given to them in Regulation S or Rule 144 or the Indenture, as the case may be.

 

This certificate relates to U.S. $                               principal amount of Notes, which are evidenced by the following certificate(s) (the “Specified Notes”):

 

CUSIP [ISIN] No(s).

 

CERTIFICATE No(s).

 

The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Notes or (ii) it is acting on behalf of all the beneficial owners of the Specified Notes and is duly authorized by them to do so.  Such beneficial owner or owners are referred to herein collectively as the “Owner.”  If the Specified Notes are represented by a Global Note, they are held through the Depositary or an Agent Member in the name of the Undersigned, as or on behalf of the Owner.  If the Specified Notes are not represented by a Global Note, they are registered in the name of the Undersigned, as or on behalf of the Owner.

 

The Owner has requested that the Specified Notes be transferred to a person (the “Transferee”) who will take delivery in the form of a Regulation S Note or an interest therein.  In connection with such transfer, the Owner hereby certifies that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, such transfer is being effected in accordance with Rule 904 of Regulation S or Rule 144 under the Securities Act and with all applicable securities laws of the states of the United States and other jurisdictions.  Accordingly, the Owner hereby further certifies as follows:

 

If the transfer is being effected in accordance with Rule 904:

 

(a)                                 the Owner is not a distributor of the Notes, an affiliate of the Company or any such distributor or a person acting on behalf of any of the foregoing;

 

(b)                                 the offer of the Specified Notes was not made to a U.S. person in the United States;

 

(c)                                  either:

 

B-1











 

(1)                                 at the time the buy order was originated, the Transferee was outside the United States or the Owner and any person acting on its behalf reasonably believed that the Transferee was outside the United States, or

 

(2)                                 the transaction is being executed in, on or through the facilities of the Eurobond market, as regulated by the Association of International Bond Dealers, or another designated offshore securities market and neither the Owner nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States;

 

(d)                                 no directed selling efforts in contravention of the requirements of Rule 904(a)(2) have been made in the United States by or on behalf of the Owner or any affiliate thereof;

 

(e)                                  if the Owner is a dealer in Notes or has received a selling conversion, fee or other remuneration in respect of the Specified Notes, and the transfer is to occur during the Distribution Compliance Period, then the requirements of Rule 904(b)(1) have been satisfied; and

 

(f)                                   the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

If the transfer is being effected pursuant to Rule 144:

 

the transfer is occurring:

 

(1)                                 after a holding period of at least one year (compute in accordance with paragraph (d) of Rule 144) has elapsed since the Specified Notes were last acquired from an Issuer or from an affiliate of the Company, whichever is later, and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144; or

 

(2)                                 after a holding period of at least two years has elapsed since the Specified Notes were last acquired from the Issuer or form an affiliate of the Company, whichever is later, and the Owner is not, and during the preceding three months has not been, an affiliate of the Company; and

 

(b)                                 the Specified Notes are being transferred in compliance with any applicable “blue sky” securities laws of all applicable states of the United States.

 

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This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the Purchasers under the Purchase Agreement.

 

	
Dated:
    	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
(Print the name of the Undersigned, as such   term is defined in the second subsection of this certificate.)
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
*
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
(If the Undersigned is a corporation,   partnership or fiduciary, the title of the person signing on behalf of the   Undersigned must be stated.)
    


 




	
 
    	
*
    	
Signature must be guaranteed by an eligible   Guarantor Institution (banks, stockbrokers, savings and loan associations and   credit unions) with membership in an approved signature medallion program   pursuant to Securities and Exchange Commission Rule 17Ad-15.
    


 

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EXHIBIT C — Form of
 Restricted Notes Certificate

 

RESTRICTED NOTES CERTIFICATE

 

U.S. Bank National Association
 633 West Fifth Street, 24th Floor
 Los Angeles, CA  90071

 

Re:                             4.375% Senior Secured Notes due 2019 of Sanmina Corporation (the “Notes”)

 

Reference is hereby made to the Indenture, dated as of June 4, 2014 (the “Indenture”), among Sanmina Corporation, the Notes Guarantors named therein and U.S. Bank National Association, as Trustee and Notes Collateral Agent.  Terms used but not defined herein and defined in Rule 144A or Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), or in the Indenture shall have the meanings given to them in Rule 144A or Rule 144 or the Indenture, as the case may be.

 

This certificate relates to U.S. $                               principal amount of Notes, which are evidenced by the following certificate(s) (the “Specified Notes”):

 

CUSIP [ISIN] No(s).

 

CERTIFICATE No(s).

 

The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Notes or (ii) it is acting on behalf of all the beneficial owners of the Specified Notes and is duly authorized by them to do so.  Such beneficial owner or owners are referred to herein collectively as the “Owner.”  If the Specified Notes are represented by a Global Note, they are held through the Depositary or an Agent Member in the name of the Undersigned, as or on behalf of the Owner.  If the Specified Notes are not represented by a Global Note, they are registered in the name of the Undersigned, as or on behalf of the Owner.

 

The Owner has requested that the Specified Notes be transferred to a person (the “Transferee”) who will take delivery in the form of a Restricted Note or an interest in a Restricted Global Note.  In connection with such transfer, the Owner hereby certifies that, unless such transfer is being effected pursuant to an effective Registration Statement under the Securities Act, (i) the Owner is not a U.S. person and (ii) such transfer is being effected in accordance with Rule 144A or Rule 144 under the Securities Act and all applicable securities laws of the states of the United States and other jurisdictions.  Accordingly, the Owner hereby further certifies as:

 

If the transfer is being effected in accordance with Rule 144A:

 

(a)                                 the Specified Notes are being transferred to a person that the Owner and any person acting on its behalf reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A, acquiring for its own account or for the account of a qualified institutional buyer;

 

(b)                                 the Owner and any person acting on its behalf have taken reasonable steps to ensure that the Transferee is aware that the Owner may be relying on Rule 144A in connection with the transfer; and

 

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(c)                                  the Specified Notes are being transferred in compliance with any applicable blue sky securities law of all applicable states of the United States.

 

If the transfer is being effected pursuant to Rule 144:

 

(a)                                 the transfer is occurring:

 

(i)                                     after a holding period of at least one year (computed in accordance with paragraph (d) of Rule 144) has elapsed since the Specified Notes were last acquired from the Company or from an affiliate of the Company, whichever is later, and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144; or

 

(ii)                                  after a holding period of at least two years has elapsed since the Specified Notes were last acquired from the Company or from an affiliate of the Company, whichever is later, and the Owner is not, and during the preceding three months has not been, an affiliate of the Company; and

 

(b)                                 the Specified Notes are being transferred in compliance with any applicable “blue sky” securities laws of all applicable states of the United States.

 

Upon giving effect to this request to exchange a beneficial interest in Regulation S Global Notes for a beneficial interest in the Restricted Global Note, the resulting beneficial interest shall be subject to the restrictions on transfer applicable to the Restricted Global Notes pursuant to the Indenture and the Securities Act.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the Purchasers under the Purchase Agreement.

 

	
Dated:
    	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
(Print the name of the Undersigned, as such   term is defined in the second subsection of this certificate.)
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
*
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
(If the Undersigned is a corporation,   partnership or fiduciary, the title of the person signing on behalf of the   Undersigned must be stated.)
    


 




	
 
    	
*
    	
Signature must be guaranteed by an eligible   Guarantor Institution (banks, stockbrokers, savings and loan associations and   credit unions) with membership in an approved signature medallion program   pursuant to Securities and Exchange Commission Rule 17Ad-15.
    


 

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EXHIBIT D — Form of
 Unrestricted Notes Certificate

 

UNRESTRICTED NOTES CERTIFICATE

 

(For transfers pursuant to Section 305(b) of the Indenture)

 

U.S. Bank National Association
 633 West Fifth Street, 24th Floor
 Los Angeles, CA  90071

 

Re:                             4.375% Senior Secured Notes due 2019 of Sanmina Corporation (the “Notes”)

 

Reference is made to the Indenture, dated as of June 4, 2014 (the “Indenture”), among Sanmina Corporation (the “Company”), the Note Guarantors named therein and U.S. Bank National Association, as Trustee and Notes Collateral Agent.  Terms used herein and defined in the Indenture or in Rule 144 under the U.S. Securities Act of 1933, as amended (the “Securities Act”), are used herein as so defined.

 

This certificate relates to U.S. $                           principal amount of Notes, which are evidenced by the following certificate(s) (the “Specified Notes”):

 

[CUSIP] [ISIN] No(s).

 

CERTIFICATE No(s).

 

The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Notes or (ii) it is acting on behalf of all the beneficial owners of the Specified Notes and is duly authorized by them to do so.  Such beneficial owner or owners are referred to herein collectively as the “Owner.”  If the Specified Notes are represented by a Global Note, they are held through the Depositary or an Agent Member in the name of the Undersigned, as or on behalf of the Owner.  If the Specified Notes are not represented by a Global Note, they are registered in the name of the undersigned, as or on behalf of the Owner.

 

The Owner has requested that the Specified Notes be exchanged for Notes bearing no Securities Act Legend pursuant to Section 305(c) of the Indenture.  In connection with such exchange, the Owner hereby certifies that the exchange is occurring after a holding period of at least two years (computed in accordance with paragraph (d) of Rule 144) has elapsed since the Specified Notes were last acquired from the Company or from an affiliate of the Company, whichever is later, and the Owner is not, and during the preceding three months has not been, an affiliate of the Company.  The Owner also acknowledges that any future transfers of the Specified Notes must comply with all applicable securities laws of the states of the United States and other jurisdictions.

 

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

 

	
Dated:
    	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
(Print the name of the Undersigned, as such   term is defined in the second subsection of this certificate.)
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
*
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
(If the Undersigned is a corporation,   partnership or fiduciary, the title of the person signing on behalf of the   Undersigned must be stated.)
    


 




	
 
    	
*
    	
Signature must be guaranteed by an eligible   Guarantor Institution (banks, stockbrokers, savings and loan associations and   credit unions) with membership in an approved signature medallion program   pursuant to Securities and Exchange Commission Rule 17Ad-15.
    


 

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EXHIBIT E — Form
 of Notes Guarantee

 

GUARANTEE

 

For good and valuable consideration received from the Company by the undersigned (hereinafter referred to as the “Notes Guarantors,” which term includes any successor or additional Notes Guarantors), the receipt and sufficiency of which is hereby acknowledged, subject to Section 1203 of the Indenture, each Notes Guarantor, jointly and severally, hereby unconditionally guarantees, irrespective of the validity or enforceability of the Indenture, the Notes or the obligations of any party under the Notes or the Indenture, (a) the due and punctual payment of the principal of (and premium, if any) and interest on, the Notes, whether at Stated Maturity or on an Interest Payment Date, by acceleration, call for redemption or otherwise (subject to any applicable grace period), (b) the due and punctual payment of interest on the overdue principal and premium, if any, of the interest on, the Notes, if lawful, (c) the due and punctual payment and performance (subject to any applicable grace period) of all other obligations of the Company under the Notes and the Indenture, all in accordance with the terms set forth therein and (d) in case of any extension of time of payment or renewal of any Notes or any of such other obligations under the Notes or the Indenture, the due and punctual payment or performance thereof (subject to any applicable grace period) in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption or otherwise.

 

No past, present or future director, officer, employee, incorporator, stockholder, members or controlling person of the Notes Guarantor (or any successor entity), as such, shall have any liability under this Notes Guarantee for any obligations of the Notes Guarantor under the Notes or the Indenture, or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting the Note to which this Notes Guarantee is attached waives and releases all such liability.

 

[Signatures on following pages]

 

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IN WITNESS WHEREOF, each of the Notes Guarantors has caused this Notes Guarantee to be signed by a duly authorized officer.

 

	
Date:
    	
[Notes Guarantors]
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

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