ex41-patkindenture2021ex






Execution Version    #95220814v17    PATRICK INDUSTRIES, INC., as Issuer  EACH OF THE GUARANTORS FROM TIME TO TIME PARTY HERETO,   as Subsidiary Guarantors        AND        U.S. BANK NATIONAL ASSOCIATION,        as Trustee        INDENTURE        Dated as of December 13, 2021  1.75% Convertible Senior Notes due 2028    





 






  i  #95220814v17  TABLE OF CONTENTS    PAGE  ARTICLE 1  DEFINITIONS  Section 1.01. Definitions ................................................................................................................. 1  Section 1.02. References to Interest .............................................................................................. 14  ARTICLE 2  ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES  Section 2.01. Designation and Amount......................................................................................... 14  Section 2.02. Form of Notes ......................................................................................................... 14  Section 2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts .. 15  Section 2.04. Execution, Authentication and Delivery of Notes ................................................... 16  Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;  Depositary ............................................................................................................. 17  Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes ............................................................ 23  Section 2.07. Temporary Notes ..................................................................................................... 24  Section 2.08. Cancellation of Notes Paid, Converted, Etc ........................................................... 24  Section 2.09. CUSIP Numbers ...................................................................................................... 24  Section 2.10. Additional Notes; Repurchases ............................................................................... 24  ARTICLE 3  SATISFACTION AND DISCHARGE  Section 3.01. Satisfaction and Discharge ..................................................................................... 25  ARTICLE 4  PARTICULAR COVENANTS OF THE COMPANY  Section 4.01. Payment of Principal and Interest .......................................................................... 25  Section 4.02. Maintenance of Office or Agency ........................................................................... 26  Section 4.03. Appointments to Fill Vacancies in Trustee’s Office ............................................... 26  Section 4.04. Provisions as to Paying Agent ................................................................................ 26  Section 4.05. Existence ................................................................................................................. 28  Section 4.06. Rule 144A Information Requirement and Annual Reports ..................................... 28  Section 4.07. Stay, Extension and Usury Laws ............................................................................. 30  Section 4.08. Compliance Certificate; Statements as to Defaults ................................................ 30  Section 4.09. Further Instruments and Acts ................................................................................. 30  





 






ii  #95220814v17  ARTICLE 5  LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE  Section 5.01. Lists of Holders ....................................................................................................... 31  Section 5.02. Preservation and Disclosure of Lists ...................................................................... 31  ARTICLE 6  DEFAULTS AND REMEDIES  Section 6.01. Events of Default ..................................................................................................... 31  Section 6.02. Acceleration; Rescission and Annulment ................................................................ 33  Section 6.03. Additional Interest .................................................................................................. 34  Section 6.04. Payments of Notes on Default; Suit Therefor ......................................................... 35  Section 6.05. Application of Monies Collected by Trustee ........................................................... 36  Section 6.06. Proceedings by Holders .......................................................................................... 37  Section 6.07. Proceedings by Trustee ........................................................................................... 38  Section 6.08. Remedies Cumulative and Continuing .................................................................... 38  Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders ............ 38  Section 6.10. Notice of Defaults ................................................................................................... 39  Section 6.11. Undertaking to Pay Costs ....................................................................................... 39  ARTICLE 7  CONCERNING THE TRUSTEE  Section 7.01. Duties and Responsibilities of Trustee .................................................................... 40  Section 7.02. Reliance on Documents, Opinions, Etc................................................................... 41  Section 7.03. No Responsibility for Recitals, Etc ......................................................................... 42  Section 7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note  Registrar May Own Notes ..................................................................................... 42  Section 7.05. Monies and Shares of Common Stock to Be Held in Trust ..................................... 43  Section 7.06. Compensation and Expenses of Trustee ................................................................. 43  Section 7.07. Officer’s Certificate as Evidence ............................................................................ 43  Section 7.08. Eligibility of Trustee ............................................................................................... 44  Section 7.09. Resignation or Removal of Trustee ......................................................................... 44  Section 7.10. Acceptance by Successor Trustee ........................................................................... 45  Section 7.11. Succession by Merger, Etc ...................................................................................... 46  Section 7.12. Trustee’s Application for Instructions from the Company ..................................... 46  ARTICLE 8  CONCERNING THE HOLDERS  Section 8.01. Action by Holders ................................................................................................... 46  Section 8.02. Proof of Execution by Holders ................................................................................ 47  Section 8.03. Who Are Deemed Absolute Owners ........................................................................ 47  Section 8.04. Company-Owned Notes Disregarded ..................................................................... 47  Section 8.05. Revocation of Consents; Future Holders Bound .................................................... 48  





 






iii  #95220814v17  ARTICLE 9  HOLDERS’ MEETINGS  Section 9.01. Purpose of Meetings ............................................................................................... 48  Section 9.02. Call of Meetings by Trustee .................................................................................... 48  Section 9.03. Call of Meetings by Company or Holders .............................................................. 49  Section 9.04. Qualifications for Voting ........................................................................................ 49  Section 9.05. Regulations ............................................................................................................. 49  Section 9.06. Voting ...................................................................................................................... 50  Section 9.07. No Delay of Rights by Meeting ............................................................................... 50  ARTICLE 10  SUPPLEMENTAL INDENTURES  Section 10.01. Supplemental Indentures Without Consent of Holders ......................................... 50  Section 10.02. Supplemental Indentures with Consent of Holders ............................................... 51  Section 10.03. Effect of Supplemental Indentures ........................................................................ 52  Section 10.04. Notation on Notes ................................................................................................. 53  Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee .... 53  ARTICLE 11  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE OF THE COMPANY  Section 11.01. Company May Consolidate, Etc. on Certain Terms ............................................. 53  Section 11.02. Successor Corporation to Be Substituted ............................................................. 53  Section 11.03. Opinion of Counsel to Be Given to Trustee .......................................................... 54  ARTICLE 12  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS  Section 12.01. Indenture and Notes Solely Corporate Obligations.............................................. 54  ARTICLE 13  GUARANTEES OF NOTES  Section 13.01. Subsidiary Guarantees .......................................................................................... 55  Section 13.02. Limitation on Subsidiary Guarantor Liability ...................................................... 56  Section 13.03. Execution and Delivery of Subsidiary Guarantee ................................................ 56  Section 13.04. Consolidation, Merger, Sale, Conveyance and Lease of the Subsidiary  Guarantors ............................................................................................................ 57  Section 13.05. Releases................................................................................................................. 58  Section 13.06. Additional Note Guarantees ................................................................................. 59  ARTICLE 14  CONVERSION OF NOTES  Section 14.01. Conversion Privilege ............................................................................................ 59  Section 14.02. Conversion Procedure; Settlement Upon Conversion. ......................................... 62  





 






iv  #95220814v17  Section 14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in  Connection with Make-Whole Fundamental Changes or a Notice of  Redemption ........................................................................................................... 65  Section 14.04. Adjustment of Conversion Rate ............................................................................. 68  Section 14.05. Adjustments of Prices ............................................................................................ 77  Section 14.06. Shares to Be Fully Paid ........................................................................................ 77  Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common  Stock ...................................................................................................................... 77  Section 14.08. Certain Covenants ................................................................................................ 80  Section 14.09. Responsibility of Trustee ....................................................................................... 80  Section 14.10. Notice to Holders Prior to Certain Actions .......................................................... 81  Section 14.11. Stockholder Rights Plans ...................................................................................... 81  Section 14.12. Exchange in Lieu of Conversion ........................................................................... 81  ARTICLE 15  REPURCHASE OF NOTES AT OPTION OF HOLDERS  Section 15.01. [Intentionally Omitted]. ........................................................................................ 82  Section 15.02. Repurchase at Option of Holders Upon a Fundamental Change ......................... 82  Section 15.03. Withdrawal of Fundamental Change Repurchase Notice .................................... 85  Section 15.04. Deposit of Fundamental Change Repurchase Price ............................................. 85  Section 15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes .............. 86  ARTICLE 16  OPTIONAL REDEMPTION  Section 16.01. Optional Redemption ............................................................................................ 87  Section 16.02. Notice of Optional Redemption; Selection of Notes ............................................. 87  Section 16.03. Payment of Notes Called for Redemption ............................................................. 88  Section 16.04. Restrictions on Redemption .................................................................................. 88  ARTICLE 17  MISCELLANEOUS PROVISIONS  Section 17.01. Provisions Binding on Company’s Successors ..................................................... 89  Section 17.02. Official Acts by Successor ..................................................................................... 89  Section 17.03. Addresses for Notices, Etc .................................................................................... 89  Section 17.04. Governing Law; Jurisdiction ................................................................................ 90  Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions  of Counsel to Trustee ............................................................................................ 90  Section 17.06. Legal Holidays ...................................................................................................... 91  Section 17.07. No Security Interest Created ................................................................................. 91  Section 17.08. Benefits of Indenture ............................................................................................. 91  Section 17.09. Table of Contents, Headings, Etc ......................................................................... 91  Section 17.10. Authenticating Agent ............................................................................................. 91  Section 17.11. Execution in Counterparts .................................................................................... 92  Section 17.12. Severability ........................................................................................................... 92  





 






v  #95220814v17  Section 17.13. Waiver of Jury Trial .............................................................................................. 92  Section 17.14. Force Majeure ...................................................................................................... 92  Section 17.15. Calculations .......................................................................................................... 93  Section 17.16. USA PATRIOT Act ................................................................................................ 93  Section 17.17. Electronic Signatures ............................................................................................ 93    EXHIBITS  Exhibit A Form of Note ....................................................................................................... A-1    Exhibit B Form of Supplemental Indenture to be Delivered by Subsequent Guarantors ....B-1      





 






    #95220814v17  INDENTURE dated as of December 13, 2021 among PATRICK INDUSTRIES, INC., an  Indiana corporation, as issuer (the “Company,” as more fully set forth in Section 1.01), the  Subsidiary Guarantors (as defined in Section 1.01), as guarantors hereunder, and U.S. BANK  NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee,” as more  fully set forth in Section 1.01).  W I T N E S E T H:  WHEREAS, for its lawful corporate purposes, the Company has duly authorized the  issuance of its 1.75% Convertible Senior Notes due 2028 (the “Notes”), initially in an aggregate  principal amount not to exceed $258,750,000, and in order to provide the terms and conditions  upon which the Notes are to be authenticated, issued and delivered, the Company has duly  authorized the execution and delivery of this Indenture; and  WHEREAS, the Subsidiary Guarantors have duly authorized the execution and delivery  of this Indenture and the Subsidiary Guarantees hereunder; and  WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note,  the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the  Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms  hereinafter provided; and  WHEREAS, all acts and things necessary to make the Notes, when executed by the  Company and authenticated and delivered by the Trustee or a duly authorized authenticating  agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and  this Indenture a valid agreement according to its terms, have been done and performed, and the  execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly  authorized.  NOW, THEREFORE, THIS INDENTURE WITNESSETH:  That in order to declare the terms and conditions upon which the Notes are, and are to be,  authenticated, issued and delivered, and in consideration of the premises and of the purchase and  acceptance of the Notes by the Holders thereof, each of the Company and each Subsidiary  Guarantor covenants and agrees with the Trustee for the equal and proportionate benefit of the  respective Holders from time to time of the Notes (except as otherwise provided below), as  follows:  ARTICLE 1  DEFINITIONS  Section 1.01 Definitions.  The terms defined in this Section 1.01 (except as herein  otherwise expressly provided or unless the context otherwise requires) for all purposes of this  Indenture and of any indenture supplemental hereto shall have the respective meanings specified  in this Section 1.01.  The words “herein,” “hereof,” “hereunder” and words of similar import  





 






2  #95220814v17  refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.   The terms defined in this Article include the plural as well as the singular.“Additional Interest”  means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section 6.03,  as applicable.  “Additional Shares” shall have the meaning specified in Section 14.03(a).  “Affiliate” of any specified Person means any other Person directly or indirectly  controlling or controlled by or under direct or indirect common control with such specified  Person.  For the purposes of this definition, “control,” when used with respect to any specified  Person means the power to direct or cause the direction of the management and policies of such  Person, directly or indirectly, whether through the ownership of voting securities, by contract or  otherwise; and the terms “controlling” and “controlled” have meanings correlative to the  foregoing.  Notwithstanding anything to the contrary herein, the determination of whether one  Person is an “Affiliate” of another Person for purposes of this Indenture shall be made based on  the facts at the time such determination is made or required to be made, as the case may be,  hereunder.  “Bid Solicitation Agent” means the Person appointed by the Company to solicit bids for  the Trading Price of the Notes in accordance with Section 14.01(b)(i).  The Company shall  initially act as the Bid Solicitation Agent.    “Board of Directors” means the board of directors of the Company or a committee of  such board duly authorized to act for it hereunder.  “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, with respect to any Note, any day other than a Saturday, a  Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by  law or executive order to close or be closed.    “Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,  warrants, options, participations or other equivalents of or interests in (however designated)  stock issued by that entity.  “Cash Percentage” shall have the meaning specified in Section 14.02(a)(i).  “Clause A Distribution” shall have the meaning specified in Section 14.04(c).  “Clause B Distribution” shall have the meaning specified in Section 14.04(c).  “Clause C Distribution” shall have the meaning specified in Section 14.04(c).  “close of business” means 5:00 p.m. (New York City time).  “Commission” means the U.S. Securities and Exchange Commission.  





 






3  #95220814v17  “Common Equity” of any Person means Capital Stock of such Person that is generally  entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a  corporation, to vote or otherwise participate in the selection of the governing body, partners,  managers or others that will control the management or policies of such Person.  “Common Stock” means the common stock of the Company, no par value per share, at  the date of this Indenture, subject to Section 14.07.  “Company” shall have the meaning specified in the first paragraph of this Indenture, and  subject to the provisions of Article 11, shall include its successors and assigns.  “Company Order” means a written order of the Company signed by at least one Officer  of the Company and delivered to the Trustee.  “Conversion Agent” shall have the meaning specified in Section 4.02.  “Conversion Consideration” shall have the meaning specified in Section 14.12(a).  “Conversion Date” shall have the meaning specified in Section 14.02(c).  “Conversion Obligation” shall have the meaning specified in Section 14.01(a).  “Conversion Price” means as of any time, $1,000, divided by the Conversion Rate as of  such time.  “Conversion Rate” shall have the meaning specified in Section 14.01(a).  “Corporate Trust Office” means the principal office of the Trustee at which at any time  its corporate trust business shall be administered, which office at the date hereof is located at 190  S. LaSalle Street, 10th Floor, Chicago IL 60603, or such other address as the Trustee may  designate from time to time by notice to the Holders and the Company, or the principal corporate  trust office of any successor trustee (or such other address as such successor trustee may  designate from time to time by notice to the Holders and the Company).  “Credit Facilities” means one or more debt facilities (including, without limitation, the  Company’s Fourth Amended and Restated Credit Agreement) or commercial paper facilities, in  each case, with banks or other institutional lenders providing for revolving credit loans, term  loans, receivables financing (including through the sale of receivables to such lenders or to  special purpose entities formed to borrow from such lenders against such receivables) or letters  of credit, in each case, that is designated from time to time by the Company as a “Credit Facility”  and as amended, modified, restated, renewed, increased, supplemented, refunded, replaced  (whether upon or after termination or otherwise) or refinanced (including by means of sales of  debt securities to institutional investors) in whole or in part from time to time. The Company’s  Fourth Amended and Restated Credit Agreement dated as of April 20, 2021 hereby is designated  by the Company as a Credit Facility.  “Custodian” means the Trustee, as custodian for The Depository Trust Company, with  respect to the Global Notes, or any successor entity thereto.  





 






4  #95220814v17  “Daily Conversion Value” means, for each of the 40 consecutive Trading Days during  the Observation Period, 2.5% of the product of (a) the Conversion Rate on such Trading Day and  (b) the Daily VWAP for such Trading Day.  “Daily Net Settlement Amount” means, for each of the 40 consecutive Trading Days  during the Observation Period:  (a) if the Company does not validly elect a Cash Percentage or the Company  validly elects (or is deemed to have elected) a Cash Percentage of 0% as set forth herein,  a number of shares of Common Stock equal to (i) the difference between the Daily  Conversion Value for such Trading Day and $25, divided by (ii) the Daily VWAP for  such Trading Day;  (b) if the Company validly elects a Cash Percentage of 100% as set forth  herein, cash in an amount equal to the difference between the Daily Conversion Value for  such Trading Day and $25; or  (c) if the Company validly elects a Cash Percentage of less than 100% but  greater than 0% as set forth herein, (i) cash equal to the product of (x) the difference  between the Daily Conversion Value for such Trading Day and $25 and (y) the Cash  Percentage, plus (ii) a number of shares of the Common Stock equal to the product of (x)  (A) the difference between the Daily Conversion Value for such Trading Day and $25,  divided by (B) the Daily VWAP for such Trading Day and (y) 100% minus the Cash  Percentage.  “Daily Settlement Amount,” for each of the 40 consecutive Trading Days during the  relevant Observation Period, shall consist of:  (a) cash equal to the lesser of (i) $25 and (ii) the Daily Conversion Value for  such Trading Day; and  (b) if the Daily Conversion Value for such Trading Day exceeds $25, the  Daily Net Settlement Amount for such Trading Day.  “Daily VWAP” means, for each of the 40 consecutive Trading Days during the relevant  Observation Period, the per share volume-weighted average price as displayed under the heading  “Bloomberg VWAP” on Bloomberg page “PATK <equity> AQR” (or its equivalent successor if  such page is not available) in respect of the period from the scheduled open of trading until the  scheduled close of trading of the primary trading session on such Trading Day (or if such  volume-weighted average price is unavailable, the market value of one share of the Common  Stock on such Trading Day determined, using a volume-weighted average method, by a  nationally recognized independent investment banking firm retained for this purpose by the  Company).  The “Daily VWAP” shall be determined without regard to after-hours trading or any  other trading outside of the regular trading session trading hours.  “Default” means any event that is, or after notice or passage of time, or both, would be,  an Event of Default.  





 






5  #95220814v17  “Defaulted Amounts” means any amounts on any Note (including, without limitation,  the Redemption Price, the Fundamental Change Repurchase Price, principal and interest) that are  payable but are not punctually paid or duly provided for.  “Depositary” means, with respect to each Global Note, the Person specified in Section  2.05(c) as the Depositary with respect to such Notes, until a successor shall have been appointed  and become such pursuant to the applicable provisions of this Indenture, and thereafter,  “Depositary” shall mean or include such successor.  “Designated Financial Institution” shall have the meaning specified in Section  14.12(a).  “Distributed Property” shall have the meaning specified in Section 14.04(c).  “Domestic Subsidiary” means any Subsidiary of the Company that was formed under  the laws of the United States or any state or commonwealth of the United States or under the  laws of the District of Columbia.  “Effective Date” shall have the meaning specified in Section 14.03(c), except that, as  used in Section 14.04 and Section 14.05, “Effective Date” means the first date on which shares  of the Common Stock trade on the applicable exchange or in the applicable market, regular way,  reflecting the relevant share split or share combination, as applicable (it being understood and  agreed, for the avoidance of doubt, that any alternative trading convention on such exchange or  such market in respect of shares of the Common Stock under a separate ticker symbol or CUSIP  number will not be considered “regular way” for this purpose).  “Event of Default” shall have the meaning specified in Section 6.01.  “Ex-Dividend Date” means the first date on which shares of the Common Stock trade on  the applicable exchange or in the applicable market, regular way, without the right to receive the  issuance, dividend or distribution in question, from the Company or, if applicable, from the seller  of Common Stock on such exchange or market (in the form of due bills or otherwise) as  determined by such exchange or market.  “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules  and regulations promulgated thereunder.  “Exchange Election” shall have the meaning specified in Section 14.12(a).  “Form of Assignment and Transfer” means the “Form of Assignment and Transfer”  attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.  “Form of Fundamental Change Repurchase Notice” means the “Form of Fundamental  Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as  Exhibit A.  “Form of Note” means the “Form of Note” attached hereto as Exhibit A.  





 






6  #95220814v17  “Form of Notice of Conversion” means the “Form of Notice of Conversion” attached as  Attachment 1 to the Form of Note attached hereto as Exhibit A.  “Fundamental Change” shall be deemed to have occurred at the time after the Notes are  originally issued if any of the following occurs:  (a) except in the case of a transaction described in clause (b) below, a  “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than  the Company, its Wholly Owned Subsidiaries and the employee benefit plans of the  Company and its Wholly Owned Subsidiaries, files any schedule, form or report under  the Exchange Act that discloses that such person or group has become the direct or  indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the  Common Stock representing more than 50% of the voting power of the Common Stock,  unless such beneficial ownership (i) arises solely as a result of a revocable proxy  delivered in response to a public proxy or consent solicitation made pursuant to the  applicable rules and regulations under the Exchange Act and (ii) is not also then  reportable on Schedule 13D or Schedule 13G (or any successor schedule) under the  Exchange Act as a result thereof; provided that no person or group shall be deemed to be  the beneficial owner of any securities tendered pursuant to a tender or exchange offer  made by or on behalf of such person or group until such tendered securities are accepted  for purchase or exchange under such offer;   (b) the consummation of (A) any recapitalization, reclassification or change of  the Common Stock (other than changes resulting from a subdivision or combination or a  change solely in par value) as a result of which the Common Stock would be converted  into, or exchanged for, stock, other securities, other property or assets; (B) any share  exchange, consolidation or merger of the Company pursuant to which the Common Stock  will be converted into cash, securities or other property or assets; or (C) any sale, lease or  other transfer in one transaction or a series of transactions of all or substantially all of the  consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person  other than one or more of the Company’s direct or indirect Wholly Owned Subsidiaries;  provided, however, that a transaction described in clause (A) or (B) in which the holders  of all classes of the Company’s Common Equity immediately prior to such transaction  own, directly or indirectly, more than 50% of all classes of Common Equity of the  continuing or surviving corporation or transferee or the parent thereof immediately after  such transaction in substantially the same proportions (relative to each other) as such  ownership immediately prior to such transaction shall not be a Fundamental Change  pursuant to this clause (b);  (c) the stockholders of the Company approve any plan or proposal for the  liquidation or dissolution of the Company; or  (d) the Common Stock (or other common stock underlying the Notes) ceases  to be listed or quoted on any of The New York Stock Exchange, The Nasdaq Global  Select Market or The Nasdaq Global Market (or any of their respective successors);  





 






7  #95220814v17  provided, however, that a transaction or transactions described in clause (a) or clause (b) above  shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be  received by the common stockholders of the Company, excluding cash payments for fractional  shares and cash payments made in respect of dissenters’ appraisal rights, in connection with such  transaction or transactions consists of shares of common stock that are listed or quoted on any of  The New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global  Market (or any of their respective successors) or will be so listed or quoted when issued or  exchanged in connection with such transaction or transactions and as a result of such transaction  or transactions the Notes become convertible into such consideration, excluding cash payments  for fractional shares and cash payments made in respect of dissenters’ appraisal rights (subject to  the provisions of Section 14.02(a)). In addition, it shall not constitute a Fundamental Change  pursuant to clause (d) if (x) the Common Stock (or other common stock underlying the Notes)  ceases to be listed or quoted on any of The New York Stock Exchange, The Nasdaq Global  Select Market or The Nasdaq Global Market (or any of their respective successors) solely after  the close of the regular trading session on any Scheduled Trading Day and (y) the Common  Stock (or other common stock underlying the Notes) is re-listed or re-quoted on one of The New  York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or any  of their respective successors) prior to open of the regular trading session on the immediately  succeeding Scheduled Trading Day. If any transaction in which the Common Stock is replaced  by capital stock of another entity occurs, following completion of any related Make-Whole  Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental  Change or a Make-Whole Fundamental Change but for the proviso immediately following clause  (d) of the definition thereof, following the effective date of such transaction) references to the  Company in this definition shall instead be references to such other entity.  “Fundamental Change Company Notice” shall have the meaning specified in Section  15.02(c).  “Fundamental Change Repurchase Date” shall have the meaning specified in Section  15.02(a).  “Fundamental Change Repurchase Notice” shall have the meaning specified in Section  15.02(b)(i).  “Fundamental Change Repurchase Price” shall have the meaning specified in Section  15.02(a).  “Global Note” shall have the meaning specified in Section 2.05(b).  “Holder,” as applied to any Note, or other similar terms (but excluding the term  “beneficial holder”), means any Person in whose name at the time a particular Note is registered  on the Note Register.  “Initial Dividend Threshold” shall have the meaning specified in Section 14.04(d).  “Indenture” means this instrument as originally executed or, if amended or  supplemented as herein provided, as so amended or supplemented.  





 






8  #95220814v17  “Interest Payment Date” means each June 1 and December 1 of each year, beginning on  June 1, 2022.  “Last Reported Sale Price” of the Common Stock on any date means the closing sale  price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if  more than one in either case, the average of the average bid and the average ask prices) on that  date as reported in composite transactions for the principal U.S. national or regional securities  exchange on which the Common Stock is traded.  If the Common Stock is not listed for trading  on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale  Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on  the relevant date as reported by OTC Markets Group Inc. or a similar organization.  If the  Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the  mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of  at least three nationally recognized independent investment banking firms selected by the  Company for this purpose. The “Last Reported Sale Price” shall be determined without regard  to after-hours trading or any other trading outside of regular trading session hours.   “LLC Division” means the division of a limited liability company into two or more  limited liability companies, with the dividing company continuing or terminating its existence as  a result, whether pursuant to the laws of any applicable jurisdiction or otherwise (including,  without limitation, any “plan of division” under Section 18-217 of the Delaware Limited  Liability Company Act or any similar statute or provision under applicable law or otherwise).  “Make-Whole Fundamental Change” means any transaction or event that constitutes a  Fundamental Change (as defined above and determined after giving effect to any exceptions to  or exclusions from such definition, but without regard to the proviso in clause (b) of the  definition thereof).  “Make-Whole Fundamental Change Period” means, for any Make-Whole  Fundamental Change, the period from, and including, the Effective Date of such Make-Whole  Fundamental Change up to, and including, the Business Day immediately prior to the related  Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change  that would have been a Fundamental Change but for the proviso in clause (b) of the definition  thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole  Fundamental Change).  “Market Disruption Event” means, for the purposes of determining amounts due upon  conversion (a) a failure by the primary U.S. national or regional securities exchange or market on  which the Common Stock is listed or admitted for trading to open for trading during its regular  trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any  Scheduled Trading Day for the Common Stock for more than one half-hour period in the  aggregate during regular trading hours of any suspension or limitation imposed on trading (by  reason of movements in price exceeding limits permitted by the relevant stock exchange or  otherwise) in the Common Stock or in any options contracts or futures contracts relating to the  Common Stock.  “Maturity Date” means December 1, 2028.  





 






9  #95220814v17  “Maximum Conversion Rate” shall have the meaning specified in Section 14.03(e).  “Measurement Period” shall have the meaning specified in Section 14.01(b)(i).  “Merger Common Stock” shall have the meaning specified in Section 14.07(e)(i).  “Merger Event” shall have the meaning specified in Section 14.07(a).  “Merger Valuation Percentage” for any Merger Event shall be equal to (x) the  arithmetic average of the Last Reported Sale Prices of one share of such Merger Common Stock  over the relevant Merger Valuation Period (determined as if references to “Common Stock” in  the definition of “Last Reported Sale Price” were references to the “Merger Common Stock” for  such Merger Event), divided by (y) the arithmetic average of the Last Reported Sale Prices of  one share of Common Stock over the relevant Merger Valuation Period.   “Merger Valuation Period” for any Merger Event means the five consecutive Trading  Day period immediately preceding, but excluding, the effective date for such Merger Event.  “Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals  of this Indenture.  “Note Register” shall have the meaning specified in Section 2.05(a).  “Note Registrar” shall have the meaning specified in Section 2.05(a).  “Notice” shall have the meaning specified in Section 17.17.  “Notice of Conversion” shall have the meaning specified in Section 14.02(b).  “Notice of Redemption” shall have the meaning specified in Section 16.02(a).  “Observation Period” with respect to any Note surrendered for conversion means: (i)  subject to clause (ii), if the relevant Conversion Date occurs prior to June 1, 2028, the 40  consecutive Trading Day period beginning on, and including, the second Trading Day  immediately succeeding such Conversion Date; (ii) if the relevant Conversion Date occurs on or  after the date of the Company’s issuance of a Notice of Redemption with respect to the Notes  pursuant to Section 16.02 and prior to the relevant Redemption Date, the 40 consecutive Trading  Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding such  Redemption Date and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or  after June 1, 2028, the 40 consecutive Trading Days beginning on, and including, the 41st  Scheduled Trading Day immediately preceding the Maturity Date.  “Offering Memorandum” means the preliminary offering memorandum dated  December 7, 2021, as supplemented by the related pricing term sheet dated December 7, 2021,  relating to the offering and sale of the Notes.  “Officer” means, with respect to the Company or any Subsidiary Guarantor, the  Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer,  





 






10  #95220814v17  any Vice President, the Controller, the Treasurer or the Secretary (a) of such Person or (b) if such  Person is owned or managed by a single entity, of such entity (or any other individual designated  as an “Officer” for the purposes of this Indenture by the Board of Directors).  “Officer’s Certificate,” means, with respect to the Company or any other obligor upon  the Notes, a certificate signed by one Officer of such Person that meets the requirements of  Section 17.05 hereof and delivered to the Trustee. Each such certificate shall include the  statements provided for in Section 17.05 if, and to the extent, required by the provisions of such  Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the  principal executive, financial or accounting officer of the Company.  “open of business” means 9:00 a.m. (New York City time).  “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be  an employee of or counsel to the Company, or other counsel reasonably acceptable to the  Trustee, that is delivered to the Trustee.  Each such opinion shall include the statements provided  for in Section 17.05 if and to the extent required by the provisions of such Section 17.05.  “Optional Redemption” shall have the meaning specified in Section 16.01.  “outstanding,” when used with reference to Notes, shall, subject to the provisions of  Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the  Trustee under this Indenture, except:  (a) Notes theretofore canceled by the Trustee or accepted by the Trustee for  cancellation;  (b) Notes, or portions thereof, that have become due and payable and in  respect of which monies in the necessary amount shall have been deposited in trust with  the Trustee or with any Paying Agent (other than the Company) or shall have been set  aside and segregated in trust by the Company (if the Company shall act as its own Paying  Agent);  (c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of  which, or in substitution for which, other Notes shall have been authenticated and  delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is  presented that any such Notes are held by protected purchasers in due course;   (d) Notes converted pursuant to Article 14 and required to be cancelled  pursuant to Section 2.08;  (e) Notes redeemed pursuant to Article 16; and    (f) Notes repurchased by the Company pursuant to the penultimate sentence  of Section 2.10.   “Paying Agent” shall have the meaning specified in Section 4.02.  





 






11  #95220814v17  “Person” means an individual, a corporation, a limited liability company, an association,  a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a  government or an agency or a political subdivision thereof.  “Physical Notes” means permanent certificated Notes in registered form issued in  denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof.  “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 2.06 in lieu of or in exchange for  a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the  mutilated, lost, destroyed or stolen Note that it replaces.  “Redemption Date” shall have the meaning specified in Section 16.02(a).  “Redemption Price” means, for any Notes to be redeemed pursuant to Section 16.01,  100% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to, but  excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date  but on or prior to the immediately succeeding Interest Payment Date, in which case interest  accrued to the Interest Payment Date will be paid to Holders of record of such Notes as of the  close of business on such Regular Record Date, and the Redemption Price will be equal to 100%  of the principal amount of such Notes).  “Reference Property” shall have the meaning specified in Section 14.07(a).  “Regular Record Date,” with respect to any Interest Payment Date, means the May 15  or November 15 (whether or not such day is a Business Day) immediately preceding the  applicable June 1 or December 1 Interest Payment Date, respectively.  “Resale Restriction Termination Date” shall have the meaning specified in Section  2.05(c).  “Responsible Officer” means, when used with respect to the Trustee, any officer within  the corporate trust department of the Trustee, having direct responsibility for the administration  of this Indenture, or to whom any corporate trust matter is referred because of such person's  knowledge of and familiarity with the particular subject.  “Restricted Securities” shall have the meaning specified in Section 2.05(c).  “Rule 144” means Rule 144 as promulgated under the Securities Act.  “Rule 144A” means Rule 144A as promulgated under the Securities Act.  “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the  principal U.S. national or regional securities exchange or market on which the Common Stock is  listed or admitted for trading.  If the Common Stock is not so listed or admitted for trading,  “Scheduled Trading Day” means a Business Day.  





 






12  #95220814v17  “Securities Act” means the Securities Act of 1933, as amended, and the rules and  regulations promulgated thereunder.  “Settlement Amount” has the meaning specified in Section 14.02(a)(iv).  “Settlement Notice” has the meaning specified in Section 14.02(a)(iii).  “Significant Subsidiary” means a Subsidiary of the Company that meets the definition  of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X promulgated by the  Commission.  “Spin-Off” shall have the meaning specified in Section 14.04(c).  “Stock Price” shall have the meaning specified in Section 14.03(c).  “Subsidiary” means, with respect to any Person, any corporation, association,  partnership or other business entity of which more than 50% of the total voting power of shares  of Capital Stock or other interests (including partnership interests) entitled (without regard to the  occurrence of any contingency) to vote in the election of directors, managers, general partners or  trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii)  such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of  such Person.  “Subsidiary Guarantee” means each guarantee by a Subsidiary Guarantor of the  Company’s obligations under this Indenture and the Notes, pursuant to Article 13 of this  Indenture.  “Subsidiary Guarantors” means each of:  (1) the Company’s Domestic Subsidiaries existing on the date of this Indenture that  guarantee the Company’s Credit Facilities; and  (2) any other Subsidiary of the Company that becomes a Subsidiary Guarantor  pursuant to Section 13.06 of this Indenture, and their respective successors and assigns;  in each case, until the Subsidiary Guarantee of such Person has been released in accordance with  the provisions of this Indenture.   “Successor Company” shall have the meaning specified in Section 11.01(a).  “Successor Subsidiary Guarantor” shall have the meaning specified in Section  13.04(a)(i).  “Trading Day” means, except for determining amounts due upon conversion, a day on  which (i) trading in the Common Stock (or other security for which a closing sale price must be  determined) generally occurs on The Nasdaq Global Select Market or, if the Common Stock (or  such other security) is not then listed on The Nasdaq Global Select Market, on the principal other  U.S. national or regional securities exchange on which the Common Stock (or such other  





 






13  #95220814v17  security) is then listed or, if the Common Stock (or such other security) is not then listed on a  U.S. national or regional securities exchange, on the principal other market on which the  Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the  Common Stock (or closing sale price for such other security) is available on such securities  exchange or market; provided that if the Common Stock (or such other security) is not so listed  or traded, “Trading Day” means a Business Day; and provided, further, that for purposes of  determining amounts due upon conversion only, “Trading Day” means a day on which (x) there  is no Market Disruption Event and (y) trading in the Common Stock generally occurs on The  Nasdaq Global Select Market or, if the Common Stock is not then listed on The Nasdaq Global  Select Market, on the principal other U.S. national or regional securities exchange on which the  Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or  regional securities exchange, on the principal other market on which the Common Stock is then  listed or admitted for trading, except that if the Common Stock is not so listed or admitted for  trading, “Trading Day” means a Business Day.  “Trading Price” of the Notes on any date of determination means the average of the  secondary market bid quotations obtained by the Bid Solicitation Agent for $5,000,000 principal  amount of Notes at approximately 3:30 p.m., New York City time, on such determination date  from three independent nationally recognized securities dealers the Company selects for this  purpose; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation  Agent but two such bids are obtained, then the average of the two bids shall be used, and if only  one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be  used.  If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000  principal amount of Notes from a nationally recognized securities dealer on any determination  date, then the Trading Price per $1,000 principal amount of Notes on such determination date  shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the  Common Stock and the Conversion Rate.  “transfer” shall have the meaning specified in Section 2.05(c).  “Trigger Event” shall have the meaning specified in Section 14.04(c).  “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in  force at the date of execution of this Indenture; provided, however, that in the event the Trust  Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall  mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so  amended.  “Trustee” means the Person named as the “Trustee” in the first paragraph of this  Indenture until a successor trustee shall have become such pursuant to the applicable provisions  of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a  Trustee hereunder.  “unit of Reference Property” shall have the meaning specified in Section 14.07(a).  “Valuation Period” shall have the meaning specified in Section 14.04(c).  





 






14  #95220814v17  “Wholly Owned Subsidiary” means, with respect to any Person, any Subsidiary of such  Person, except that, solely for purposes of this definition, the reference to “more than 50%” in  the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”.  Section 1.02 References to Interest.  Unless the context otherwise requires, any reference  to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional  Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of  Section 4.06(d), Section 4.06(e) and Section 6.03.  Unless the context otherwise requires, any  express mention of Additional Interest in any provision hereof shall not be construed as  excluding Additional Interest in those provisions hereof where such express mention is not made.  ARTICLE 2  ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES  Section 2.01 Designation and Amount.  The Notes shall be designated as the “1.75%  Convertible Senior Notes due 2028.” The aggregate principal amount of Notes that may be  authenticated and delivered under this Indenture is initially limited to $258,750,000, subject to  Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or  in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.  Section 2.02 Form of Notes.  The Notes and the Trustee’s certificate of authentication to  be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the  terms and provisions of which shall constitute, and are hereby expressly incorporated in and  made a part of this Indenture.  To the extent applicable, the Company, each Subsidiary Guarantor  and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms  and provisions and to be bound thereby.  Any Global Note may be endorsed with or have incorporated in the text thereof such  legends or recitals or changes not inconsistent with the provisions of this Indenture as may be  required by the Custodian or the Depositary, or as may be required to comply with any  applicable law or any regulation thereunder or with the rules and regulations of any securities  exchange or automated quotation system upon which the Notes may be listed or traded or  designated for issuance or to conform with any usage with respect thereto, or to indicate any  special limitations or restrictions to which any particular Notes are subject.  Any of the Notes may have such letters, numbers or other marks of identification and  such notations, legends or endorsements as the Officer executing the same may approve  (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with  the provisions of this Indenture, or as may be required to comply with any law or with any rule  or regulation made pursuant thereto or with any rule or regulation of any securities exchange or  automated quotation system on which the Notes may be listed or designated for issuance, or to  conform to usage or to indicate any special limitations or restrictions to which any particular  Notes are subject.  Each Global Note shall represent such principal amount of the outstanding Notes as shall  be specified therein and shall provide that it shall represent the aggregate principal amount of  outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of  





 






15  #95220814v17  outstanding Notes represented thereby may from time to time be increased or reduced to reflect  redemptions, repurchases, cancellations, conversions, transfers or exchanges permitted hereby.   Any endorsement of a Global Note to reflect the amount of any increase or decrease in the  amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian,  at the direction of the Trustee, in such manner and upon instructions given by the Holder of such  Notes in accordance with this Indenture.  Payment of principal (including the Redemption Price,  the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on,  a Global Note shall be made to the Holder of such Note on the date of payment, unless a record  date or other means of determining Holders eligible to receive payment is provided for herein.  Section 2.03 Date and Denomination of Notes; Payments of Interest and Defaulted  Amounts.  (a) The Notes shall be issuable in registered form without interest coupons in  denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof.   Each Note shall be dated the date of its authentication and shall bear interest from the date  specified on the face of such Note.  Accrued interest on the Notes shall be computed on the basis  of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the  number of days actually elapsed in a 30-day month.  (b) The Person in whose name any Note (or its Predecessor Note) is registered on the  Note Register at the close of business on any Regular Record Date with respect to any Interest  Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.   The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the  office or agency of the Company maintained by the Company for such purposes in the  continental United States, which shall initially be the Corporate Trust Office and (y) in the case  of any Global Note, shall be payable by wire transfer of immediately available funds to the  account of the Depositary or its nominee.  The Company shall pay interest (i) on any Physical  Notes (A) to Holders holding Physical Notes having an aggregate principal amount of  $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in  the Note Register and (B) to Holders holding Physical Notes having an aggregate principal  amount of more than $5,000,000, either by check mailed to each Holder or, upon application by  such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire  transfer in immediately available funds to that Holder’s account within the United States if such  Holder has provided the Company, the Trustee or the Paying Agent with the requisite  information necessary to make such wire transfer, which application shall remain in effect until  the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by  wire transfer of immediately available funds to the account of the Depositary or its nominee.    (c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the  relevant payment date but shall accrue interest per annum at the rate borne by the Notes, subject  to the enforceability thereof under applicable law, from, and including, such relevant payment  date, and such Defaulted Amounts together with such interest thereon shall be paid by the  Company, at its election in each case, as provided in clause (i) or (ii) below:  (i) The Company may elect to make payment of any Defaulted Amounts 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 Amounts, which shall be fixed in the following manner.  The Company shall  





 






16  #95220814v17  notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid  on each Note and the date of the proposed payment (which shall be not less than 25 days  after the receipt by the Trustee of such notice, unless the Trustee shall consent to an  earlier date), and at the same time the Company shall deposit with the Trustee an amount  of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts  or shall make arrangements satisfactory to the Trustee for such deposit on or 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 Amounts as in this clause provided.   Thereupon the Company shall fix a special record date for the payment of such Defaulted  Amounts 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 Company shall promptly notify the Trustee of such  special record date and the Trustee, in the name and at the expense of the Company, shall  cause notice of the proposed payment of such Defaulted Amounts and the special record  date therefor to be delivered to each Holder not less than 10 days prior to such special  record date.  Notice of the proposed payment of such Defaulted Amounts and the special  record date therefor having been so delivered, such Defaulted Amounts 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 the following clause (ii) of this Section 2.03(c).  (ii) The Company may make payment of any Defaulted Amounts in any other  lawful manner not inconsistent with the requirements of any securities exchange or  automated quotation system on which the Notes may be listed or designated for issuance,  and upon such notice as may be required by such exchange or automated quotation  system, 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.  Section 2.04 Execution, Authentication and Delivery of Notes.  The Notes shall be signed  in the name and on behalf of the Company by the manual or electronic signature of its Chief  Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its  Executive or Senior Vice Presidents.  At any time and from time to time after the execution and delivery of this Indenture, the  Company may deliver Notes executed by the Company to the Trustee for authentication, together  with a Company Order for the authentication and delivery of such Notes, and the Trustee in  accordance with such Company Order shall authenticate and deliver such Notes, without any  further action by the Company hereunder.  Only such Notes as shall bear thereon a certificate of authentication substantially in the  form set forth on the Form of Note attached as Exhibit A hereto, executed manually or  electronically by an authorized officer of the Trustee (or an authenticating agent appointed by the  Trustee as provided by Section 17.10), shall be entitled to the benefits of this Indenture or be  valid or obligatory for any purpose.  Such certificate by the Trustee (or such an authenticating  agent) upon any Note executed by the Company shall be conclusive evidence that the Note so  





 






17  #95220814v17  authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled  to the benefits of this Indenture.  In case any Officer of the Company who shall have signed any of the Notes shall cease to  be such Officer before the Notes so signed shall have been authenticated and delivered by the  Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and  delivered or disposed of as though the person who signed such Notes had not ceased to be such  Officer of the Company; and any Note may be signed on behalf of the Company by such persons  as, at the actual date of the execution of such Note, shall be the Officers of the Company,  although at the date of the execution of this Indenture any such person was not such an Officer.  Section 2.05 Exchange and Registration of Transfer of Notes; Restrictions on Transfer;  Depositary.  (a) The Company shall cause to be kept at the Corporate Trust Office a register (the  register maintained in such office or in any other office or agency of the Company designated  pursuant to Section 4.02, 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 of  Notes.  Such register shall be in written form or in any form capable of being converted into  written form within a reasonable period of time.  The Trustee is hereby initially appointed the  “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided.   The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.  Upon surrender for registration of transfer of any Note to the Note Registrar or any co- Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section  2.05, the Company shall execute, and the Trustee 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 and bearing such restrictive legends as may be required  by this Indenture.  Notes may be exchanged for other Notes of any authorized denominations and of a like  aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or  agency maintained by the Company pursuant to Section 4.02.  Whenever any Notes are so  surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and  deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration  numbers not contemporaneously outstanding.  All Notes presented or surrendered for registration of transfer or for exchange,  repurchase, redemption or conversion shall (if so required by the Company, the Trustee, the Note  Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument  or instruments of transfer in form satisfactory to the Company and duly executed, by the Holder  thereof or its attorney-in-fact duly authorized in writing.  No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any  co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but  the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or  similar issue or transfer tax required in connection therewith as a result of the name of the Holder  of new Notes issued upon such exchange or registration of transfer being different from the name  of the Holder of the old Notes surrendered for exchange or registration of transfer.  





 






18  #95220814v17  None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be  required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a  portion of any Note is surrendered for conversion, such portion thereof surrendered for  conversion, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not  withdrawn) in accordance with Article 15 or (iii) any Notes selected for redemption in  accordance with Article 16, except the unredeemed portion of any Note being redeemed in part.    All Notes issued upon any registration of transfer or exchange of Notes in accordance  with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and  entitled to the same benefits under this Indenture as the Notes surrendered upon such registration  of transfer or exchange.  (b) So long as the Notes are eligible for book-entry settlement with the Depositary,  unless otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c)  all Notes shall be represented by one or more Notes in global form (each, a “Global Note”)  registered in the name of the Depositary or the nominee of the Depositary.  The transfer and  exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical  Note shall be effected through the Depositary (but not the Trustee or the Custodian) in  accordance with this Indenture (including the restrictions on transfer set forth herein) and the  procedures of the Depositary therefor.  (c) Every Note that bears or is required under this Section 2.05(c) to bear the legend  set forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the  Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted  Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c)  (including the legend set forth below), unless such restrictions on transfer shall be eliminated or  otherwise waived by written consent of the Company, and the Holder of each such Restricted  Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on  transfer.  As used in this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses  any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.  Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the  date that is one year after the last date of original issuance of the Notes, or such shorter period of  time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any,  as may be required by applicable law, any certificate evidencing such Note (and all securities  issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued  upon conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable)  shall bear a legend in substantially the following form (unless such Notes have been transferred  pursuant to a registration statement that has become or been declared effective under the  Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to  the exemption from registration provided by Rule 144 or any similar provision then in force  under the Securities Act, or unless otherwise agreed by the Company in writing, with notice  thereof to the Trustee):  THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON  CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE  SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT  





 






19  #95220814v17  BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN  ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF  OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:  (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS  ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING  OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE  INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND  (2) AGREES FOR THE BENEFIT OF PATRICK INDUSTRIES, INC. (THE  “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE  TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR  TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST  ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS  PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR  PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE  REQUIRED BY APPLICABLE LAW, EXCEPT:  (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR  (B) PURSUANT TO A REGISTRATION STATEMENT WHICH  HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR  (C) TO A PERSON REASONABLY BELIEVED TO BE A  QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE  144A UNDER THE SECURITIES ACT, OR  (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION  PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER  AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS  OF THE SECURITIES ACT.  PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH  CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT  TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR  OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO  DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE  WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO  REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM  THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  No transfer of any Note prior to the Resale Restriction Termination Date will be  registered by the Note Registrar unless the applicable box on the Form of Assignment and  Transfer has been checked.  Any Note (or security issued in exchange or substitution therefor) (i) as to which such  restrictions on transfer shall have expired in accordance with their terms, (ii) that has been  





 






20  #95220814v17  transferred pursuant to a registration statement that has become effective or been declared  effective under the Securities Act and that continues to be effective at the time of such transfer or  (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any  similar provision then in force under the Securities Act, may, upon surrender of such Note for  exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be  exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall  not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a  restricted CUSIP number.  The Company shall be entitled to instruct the Custodian in writing to  so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii)  of the immediately preceding sentence have been satisfied, and, upon such instruction, the  Custodian shall so surrender such Global Note for exchange; and any new Global Note so  exchanged therefor shall not bear the restrictive legend specified in this Section 2.05(c) and shall  not be assigned a restricted CUSIP number.  The Company shall promptly notify the Trustee  upon the occurrence of the Resale Restriction Termination Date and promptly after a registration  statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the  Notes has been declared effective under the Securities Act.  Notwithstanding any other provisions of this Indenture (other than the provisions set forth  in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by  the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the  Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a  successor Depositary or a nominee of such successor Depositary and (ii) for exchange of a  Global Note or a portion thereof for one or more Physical Notes in accordance with the second  immediately succeeding paragraph.  The Depositary shall be a clearing agency registered under the Exchange Act.  The  Company initially appoints The Depository Trust Company to act as Depositary with respect to  each Global Note.  Initially, each Global Note shall be issued to the Depositary, registered in the  name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as  custodian for Cede & Co.  If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or  unable to continue as depositary for the Global Notes and a successor depositary is not appointed  within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the  Exchange Act and a successor depositary is not appointed within 90 days or (iii) an Event of  Default with respect to the Notes has occurred and is continuing and a beneficial owner of any  Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall  execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the  authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii),  a Physical Note to such beneficial owner in a principal amount equal to the principal amount of  such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of  clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a  portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such  Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the  Trustee such Global Notes shall be canceled.  





 






21  #95220814v17  Physical Notes issued in exchange for all or a part of the Global Note pursuant to this  Section 2.05(c) shall be registered in such names and in such authorized denominations as the  Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the  case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall  instruct the Trustee.  Upon execution and authentication, the Trustee shall deliver such Physical  Notes to the Persons in whose names such Physical Notes are so registered.  At such time as all interests in a Global Note have been converted, canceled, repurchased,  redeemed or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee  in accordance with standing procedures and existing instructions between the Depositary and the  Custodian.  At any time prior to such cancellation, if any interest in a Global Note is exchanged  for Physical Notes, converted, canceled, repurchased, redeemed or transferred to a transferee  who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of  such Global Note, the principal amount of such Global Note shall, in accordance with the  standing procedures and instructions existing between the Depositary and the Custodian, be  appropriately reduced or increased, as the case may be, and an endorsement shall be made on  such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such  reduction or increase.  None of the Company, the Trustee or any agent of the Company 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 Global Note or maintaining, supervising or  reviewing any records relating to such beneficial ownership interests.  (d) Until the Resale Restriction Termination Date, any stock certificate representing  Common Stock issued upon conversion of a Note shall bear a legend in substantially the  following form (unless such Common Stock has been transferred pursuant to a registration  statement that has become or been declared effective under the Securities Act and that continues  to be effective at the time of such transfer, or pursuant to the exemption from registration  provided by Rule 144 or any similar provision then in force under the Securities Act, or such  Common Stock has been issued upon conversion of a Note that has transferred pursuant to a  registration statement that has become or been declared effective under the Securities Act and  that continues to be effective at the time of such transfer, or pursuant to the exemption from  registration provided by Rule 144 or any similar provision then in force under the Securities Act,  or unless otherwise agreed by the Company with written notice thereof to the Trustee and any  transfer agent for the Common Stock):  THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT  OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED,  SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH  THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL  INTEREST HEREIN, THE ACQUIRER:  (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS  ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING  OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE  INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND   





 






22  #95220814v17  (2) AGREES FOR THE BENEFIT OF PATRICK INDUSTRIES, INC. (THE  “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE  TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR  TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST  ORIGINAL ISSUE DATE OF THE SERIES OF NOTES UPON THE CONVERSION  OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF  TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY  SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS  MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:  (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR  (B) PURSUANT TO A REGISTRATION STATEMENT WHICH  HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR  (C) TO A PERSON REASONABLY BELIEVED TO BE A  QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE  144A UNDER THE SECURITIES ACT, OR  (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION  PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER  AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS  OF THE SECURITIES ACT.  PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH  CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE  COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY  OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY  REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED  TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND  APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE  AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS  OF THE SECURITIES ACT.  Any such Common Stock (i) as to which such restrictions on transfer shall have expired  in accordance with their terms, (ii) that has been transferred pursuant to a registration statement  that has become or been declared effective under the Securities Act and that continues to be  effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from  registration provided by Rule 144 or any similar provision then in force under the Securities Act,  may, upon surrender of the certificates representing such shares of Common Stock for exchange  in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for  a new certificate or certificates for a like aggregate number of shares of Common Stock, which  shall not bear the restrictive legend required by this Section 2.05(d).  (e) Any Note or Common Stock issued upon the conversion or exchange of a Note that  is repurchased or owned by any Affiliate of the Company (or any Person who was an Affiliate of  the Company at any time during the three months immediately preceding) may not be resold by  





 






23  #95220814v17  such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or  resold pursuant to an exemption from the registration requirements of the Securities Act in a  transaction that results in such Note or Common Stock, as the case may be, no longer being a  “restricted security” (as defined under Rule 144).  The Company shall cause any Note that is  repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with  Section 2.08.    Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes.  In case any Note shall become  mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its  written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate  and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in  exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so  destroyed, lost or stolen.  In every case the applicant for a substituted Note shall furnish to the  Company, to the Trustee and, if applicable, to such authenticating agent such security or  indemnity as may be required by them to save each of them harmless from any loss, liability,  cost or expense caused by or connected with such substitution, and, in every case of destruction,  loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to  such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such  Note and of the ownership thereof.  The Trustee or such authenticating agent may authenticate any such substituted Note and  deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and,  if applicable, such authenticating agent may require.  No service charge shall be imposed by the  Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the  issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient to  cover any documentary, stamp or similar issue or transfer tax required in connection therewith as  a result of the name of the Holder of the new substitute Note being different from the name of  the Holder of the old Note that became mutilated or was destroyed, lost or stolen.  In case any  Note that has matured or is about to mature or has been surrendered for required repurchase or  redemption or is about to be converted in accordance with Article 14 shall become mutilated or  be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a  substitute Note, pay or authorize the payment of or convert or authorize the conversion of the  same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the  applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if  applicable, to such authenticating agent such security or indemnity as may be required by them  to save each of them harmless for any loss, liability, cost or expense caused by or connected with  such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the  Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of  their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.  Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of  the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual  obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at  any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set  forth in) this Indenture equally and proportionately with any and all other Notes duly issued  hereunder.  To the extent permitted by law, all Notes shall be held and owned upon the express  condition that the foregoing provisions are exclusive with respect to the replacement, payment,  





 






24  #95220814v17  redemption, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall  preclude any and all other rights or remedies notwithstanding any law or statute existing or  hereafter enacted to the contrary with respect to the replacement, payment, redemption,  conversion or repurchase of negotiable instruments or other securities without their surrender.  Section 2.07 Temporary Notes.  Pending the preparation of Physical Notes, the Company  may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon  written request of the Company, authenticate and deliver temporary Notes (printed or  lithographed).  Temporary Notes shall be issuable in any authorized denomination, and  substantially in the form of the Physical Notes but with such omissions, insertions and variations  as may be appropriate for temporary Notes, all as may be determined by the Company.  Every  such temporary Note shall be executed by the Company and authenticated by the Trustee or such  authenticating agent upon the same conditions and in substantially the same manner, and with  the same effect, as the Physical Notes.  Without unreasonable delay, the Company shall execute  and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global  Note) and thereupon any or all temporary Notes (other than any Global Note) may be  surrendered in exchange therefor, at each office or agency maintained by the Company pursuant  to Section 4.02 and the Trustee or such authenticating agent shall authenticate and deliver in  exchange for such temporary Notes an equal aggregate principal amount of Physical Notes.   Such exchange shall be made by the Company at its own expense and without any charge  therefor.  Until so exchanged, the temporary Notes shall in all respects be entitled to the same  benefits and subject to the same limitations under this Indenture as Physical Notes authenticated  and delivered hereunder.  Section 2.08 Cancellation of Notes Paid, Converted, Etc.  The Company shall cause all  Notes surrendered for the purpose of payment, repurchase, redemption, registration of transfer or  exchange or conversion (other than Notes exchanged pursuant to Section 14.12), if surrendered  to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or  Affiliates), to be surrendered to the Trustee for cancellation.  All Notes delivered to the Trustee  shall be canceled promptly by it.  Except for any Notes surrendered for registration of transfer or  exchange, or as otherwise expressly permitted by any of the provisions of this Indenture, no  Notes shall be authenticated in exchange for any Notes surrendered to the Trustee for  cancellation.  The Trustee shall dispose of canceled Notes in accordance with its customary  procedures and, after such disposition, shall deliver a certificate of such disposition to the  Company, at the Company’s written request in a Company Order.    Section 2.09 CUSIP Numbers.  The Company in issuing the Notes may use “CUSIP”  numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all  notices issued to Holders as a convenience to such Holders; provided 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 on such notice and that reliance may be placed only on the other identification numbers  printed on the Notes.  The Company shall promptly notify the Trustee in writing of any change  in the “CUSIP” numbers.    Section 2.10 Additional Notes; Repurchases.  The Company may, without the consent of,  or notice to, the Holders and notwithstanding Section 2.01, reopen this Indenture and issue  additional Notes hereunder with the same terms as the Notes initially issued hereunder (other  





 






25  #95220814v17  than differences in the issue date, the issue price and interest accrued prior to the issue date of  such additional Notes) in an unlimited aggregate principal amount; provided that if any such  additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal  income tax  or securities law purposes, such additional Notes shall have one or more separate  CUSIP numbers.  Prior to the issuance of any such additional Notes, the Company shall deliver  to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such  Officer’s Certificate and Opinion of Counsel to cover such matters, in addition to those required  by Section 17.05, as the Trustee shall reasonably request.  In addition, the Company may, to the  extent permitted by law, and directly or indirectly (regardless of whether such Notes are  surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the  Company or its Subsidiaries or through a private or public tender or exchange offer or through  counterparties to private agreements, including by cash-settled swaps or other derivatives, in  each case, without prior notice to the Holders of the Notes.  The Company shall cause any Notes  so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives)  to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and such Notes  shall no longer be considered outstanding under this Indenture upon their repurchase.  ARTICLE 3  SATISFACTION AND DISCHARGE  Section 3.01 Satisfaction and Discharge.  This Indenture shall upon request of the  Company contained in an Officer’s Certificate cease to be of further effect, and the Trustee, at  the expense of the Company, shall execute proper instruments acknowledging satisfaction and  discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other  than Notes which have been destroyed, lost or stolen and which have been replaced, paid or  converted as provided in Section 2.06) have been delivered to the Trustee for cancellation; or (ii)  the Company has deposited with the Trustee or delivered to Holders, as applicable, after the  Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any  Fundamental Change Repurchase Date, upon conversion or otherwise, cash or cash and shares of  Common Stock, if any (solely to satisfy the Company’s Conversion Obligation, if applicable),  sufficient to pay all of the outstanding Notes and all other sums due and payable under this  Indenture by the Company; and (b) the Company has delivered to the Trustee an Officer’s  Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided  for relating to the satisfaction and discharge of this Indenture have been complied with.   Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company  to the Trustee under Section 7.06 shall survive.  ARTICLE 4  PARTICULAR COVENANTS OF THE COMPANY  Section 4.01 Payment of Principal and Interest.  The Company covenants and agrees that  it will cause to be paid the principal (including the Redemption Price and the Fundamental  Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the  Notes at the places, at the respective times and in the manner provided herein and in the Notes.    





 






26  #95220814v17  Section 4.02 Maintenance of Office or Agency.  The Company will maintain in the  continental United States an office or agency where the Notes may be surrendered for  registration of transfer or exchange or for presentation for payment or repurchase (“Paying  Agent”) or for conversion (“Conversion Agent”) 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 or the  office or agency of the Trustee in the continental United States.  The Company may also from time to time designate as co-Note Registrars one or more  other offices or agencies where the Notes may be presented or surrendered for any or all such  purposes and may from time to time rescind such designations; provided that no such designation  or rescission shall in any manner relieve the Company of its obligation to maintain an office or  agency in the continental 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.  The terms “Paying Agent” and “Conversion  Agent” include any such additional or other offices or agencies, as applicable.  The Company hereby initially designates the Trustee as the Paying Agent, Note  Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or  agency in the continental United States where Notes may be surrendered for registration of  transfer or exchange or for presentation for payment or repurchase or for conversion and where  notices and demands to or upon the Company in respect of the Notes and this Indenture may be  served.    Section 4.03 Appointments to Fill Vacancies in Trustee’s Office.  The Company,  whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner  provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.  Section 4.04 Provisions as to Paying Agent.  (a) If the Company shall appoint a Paying  Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver  to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the  provisions of this Section 4.04:  (i) that it will hold all sums held by it as such agent for the payment of the  principal (including the Redemption Price and the Fundamental Change Repurchase  Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the  benefit of the Holders of the Notes;  (ii) that it will give the Trustee prompt notice of any failure by the Company  to make any payment of the principal (including the Redemption Price and the  Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest  on, the Notes when the same shall be due and payable; and  





 






27  #95220814v17  (iii) that at any time during the continuance of an Event of Default, upon  request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.  The Company shall, on or before each due date of the principal (including the  Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued  and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such  principal (including the Redemption Price and the Fundamental Change Repurchase Price, if  applicable) or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the  Company will promptly notify the Trustee of any failure to take such action; provided that if  such deposit is made on the due date, such deposit must be received by the Paying Agent by  11:00 a.m., New York City time, on such date.  (b) If the Company shall act as its own Paying Agent, it will, on or before each due  date of the principal (including the Redemption Price and the Fundamental Change Repurchase  Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and  hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal  (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable)  and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing  of any failure to take such action and of any failure by the Company to make any payment of the  principal (including the Redemption Price and the Fundamental Change Repurchase Price, if  applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and  payable.  (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at  any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any  other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by  the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or  amounts to be held by the Trustee upon the trusts herein contained and upon such payment or  delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying  Agent shall be released from all further liability but only with respect to such sums or amounts.  (d) Subject to applicable escheatment laws, any money and shares of Common Stock  deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the  payment of the principal (including the Redemption Price and the Fundamental Change  Repurchase Price, if applicable) of, accrued and unpaid interest on and the consideration due  upon conversion of any Note and remaining unclaimed for two years after such principal  (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable),  interest or consideration due upon conversion has become due and payable shall be paid to the  Company on request of the Company contained in an Officer’s Certificate, 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 shares of Common Stock,  and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that  the Trustee or such Paying Agent, before being required to make any such repayment, may at the  expense of the Company cause to be published once, in a newspaper published in the English  language, customarily published on each Business Day and of general circulation in The  Borough of Manhattan, The City of New York, notice that such money and shares of Common  





 






28  #95220814v17  Stock remain unclaimed and that, after a date specified therein, which shall not be less than 30  days from the date of such publication, any unclaimed balance of such money and shares of  Common Stock then remaining will be repaid or delivered to the Company.  Section 4.05 Existence.  Subject to Article 11, the Company shall do or cause to be done  all things necessary to preserve and keep in full force and effect its corporate existence.  Section 4.06 Rule 144A Information Requirement and Annual Reports.  (a) At any time  the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so  long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall,  at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the  Securities Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial  owner or prospective purchaser of such Notes or any shares of Common Stock issuable upon  conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4)  under the Securities Act to facilitate the resale of such Notes or shares of Common Stock  pursuant to Rule 144A. At any time any Subsidiary Guarantor is not subject to Section 13 or  15(d) of the Exchange Act, such Subsidiary Guarantor shall, so long as any of the Notes shall, at  such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the  Securities Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial  owner or prospective purchaser of such Notes, the information required to be delivered pursuant  to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes pursuant to  Rule 144A.  (b) The Company shall file with the Trustee, within 15 days after the same are required  to be filed with the Commission, copies of any documents or reports that the Company is  required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act  (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act (or any  successor rule) and excluding any such information, documents or reports, or portions thereof,  subject to confidential treatment and any correspondence with the Commission).  Any such  document or report that the Company files with the Commission via the Commission’s EDGAR  system (or any successor system) shall be deemed to be filed with the Trustee for purposes of  this Section 4.06(b) at the time such documents are filed via the EDGAR system, it being  understood that the Trustee shall have no responsibility to determine if any documents have been  filed.  For the avoidance of doubt, any failure to comply with this Section 4.06(b) will not  constitute an Event of Default pursuant to Section 6.01(f) unless (i) the Company has received  written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes  then outstanding of such failure and (ii) the Company has not cured such failure during the 60  consecutive days after receipt of such notice.  (c) Delivery of the reports and documents described in subsection (b) above to the  Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute  constructive notice of any information contained therein or determinable from information  contained therein, including the Company’s compliance with any of its covenants hereunder (as  to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).  (d) If, at any time during the six-month period beginning on, and including, the date  that is six months after the last date of original issuance of the Notes, the Company fails to  





 






29  #95220814v17  timely file any document or report that it is required to file with the Commission pursuant to  Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace  periods thereunder and other than reports on Form 8-K), or the Notes are not otherwise freely  tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders that  were the Company’s Affiliates at any time during the three months immediately preceding (as a  result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes),  the Company shall pay Additional Interest on the Notes.  Such Additional Interest shall accrue  on the Notes at the rate of (i) 0.25% per annum of the principal amount of the Notes outstanding  for each day during the first 90 days of such period for which the Company’s failure to file has  occurred and is continuing or the Notes are not otherwise freely tradable as described above by  Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at  any time during the three months immediately preceding) and (ii) 0.50% per annum of the  principal amount of Notes outstanding for each day after the first 90 days of such period for  which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise  freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders  that were the Company’s Affiliates at any time during the three months immediately preceding).   As used in this Section 4.06(d), documents or reports that the Company is required to “file” with  the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include  documents or reports that the Company furnishes to the Commission pursuant to Section 13 or  15(d) of the Exchange Act.    (e) If, and for so long as, the restrictive legend on the Notes specified in Section  2.05(c) has not been removed, the Notes are assigned a restricted CUSIP or the Notes are not  otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or  Holders that were the Company’s Affiliates at any time during the three months immediately  preceding (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or  the Notes) as of the 385th day after the last date of original issuance of the Notes, the Company  shall pay Additional Interest on the Notes at a rate equal to (i) 0.25% per annum of the principal  amount of Notes outstanding for the first 90 days after such 385th day until the restrictive legend  has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted  CUSIP and the Notes are freely tradable as described above by Holders other than the  Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the  three months immediately preceding) and (ii) 0.50% per annum of the principal amount of Notes  outstanding after the first 90 days after such 385th day until the restrictive legend on the Notes  has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted  CUSIP and the Notes are freely tradable pursuant to Rule 144 by Holders other than the  Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the  three months immediately preceding) without restrictions pursuant to U.S. securities laws or the  terms of this Indenture or the Notes.    (f) Additional Interest will be payable in arrears on each Interest Payment Date  following accrual in the same manner as regular interest on the Notes.    (g) The Additional Interest that is payable in accordance with Section 4.06(d) or  Section 4.06(e) shall be in addition to, and not in lieu of, any Additional Interest that may be  payable as a result of the Company’s election pursuant to Section 6.03; provided that in no event  shall Additional Interest payable as a result of the Company’s failure to timely file any document  





 






30  #95220814v17  or report that the Company is required to file with the Commission pursuant to Section 13 or  15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods  thereunder and other than reports on Form 8-K) as set forth in Section 4.06(d), together with any  Additional Interest payable at the Company’s election pursuant to Section 6.03 for failure to  comply with the Company’s obligations as set forth in Section 4.06(b), accrue at a rate in excess  of 0.50% per annum pursuant to this Indenture, regardless of the number of events or  circumstances giving rise to the requirement to pay such Additional Interest.  (h) If Additional Interest is payable by the Company pursuant to Section 4.06(d) or  Section 4.06(e), the Company shall deliver to the Trustee an Officer’s Certificate to that effect  stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such  Additional Interest is payable.  Unless and until a Responsible Officer of the Trustee receives at  the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no  such Additional Interest is payable.  If the Company has paid Additional Interest directly to the  Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting  forth the particulars of such payment.  Section 4.07 Stay, Extension and Usury Laws.  The Company and each of the Subsidiary  Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist  upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay,  extension or usury law or other law that would prohibit or forgive the Company or such  Subsidiary Guarantor from paying all or any portion of the principal of or interest on the Notes  as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may  affect the covenants or the performance of this Indenture; and the Company and each of the  Subsidiary Guarantors (to the extent it may lawfully do so) hereby expressly waives all benefit or  advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay  or impede the execution of any power herein granted to the Trustee, but will suffer and permit  the execution of every such power as though no such law had been enacted.  Section 4.08 Compliance Certificate; Statements as to Defaults.  The Company shall  deliver to the Trustee within 120 days after the end of each fiscal year of the Company  (beginning with the fiscal year ending on December 31, 2021) an Officer’s Certificate stating  whether the signers thereof have knowledge of any Event of Default under this Indenture and, if  so, specifying each such Event of Default.  In addition, the Company shall deliver to the Trustee, within 30 days after obtaining  knowledge of the occurrence of any Event of Default or Default, an Officer’s Certificate setting  forth the details of such Event of Default or Default, its status and the action that the Company is  taking or proposing to take in respect thereof; provided that the Company is not required to  deliver such notice if such Default has been cured.  Section 4.09 Further Instruments and Acts.  Upon request of the Trustee, the Company  will execute and deliver such further instruments and do such further acts as may be reasonably  necessary or proper to carry out more effectively the purposes of this Indenture.  





 






31  #95220814v17  ARTICLE 5  LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE  Section 5.01 Lists of Holders.  The Company covenants and agrees that it will furnish or  cause to be furnished to the Trustee, semi-annually, not more than 15 days after each May 15 and  November 15 in each year beginning with May 15, 2022, and at such other times as the Trustee  may request in writing, within 30 days after receipt by the Company of any such request (or such  lesser time as the Trustee may reasonably request in order to enable it to timely provide any  notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require  of the names and addresses of the Holders as of a date not more than 15 days (or such other date  as the Trustee may reasonably request in order to so provide any such notices) prior to the time  such information is furnished, except that no such list need be furnished so long as the Trustee is  acting as Note Registrar.  Section 5.02 Preservation and Disclosure of Lists.  The Trustee shall preserve, in as  current a form as is reasonably practicable, all information as to the names and addresses of the  Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained  by the Trustee in its capacity as Note Registrar, if so acting.  The Trustee may destroy any list  furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.  ARTICLE 6  DEFAULTS AND REMEDIES  Section 6.01 Events of Default.  Each of the following events shall be an “Event of  Default” with respect to the Notes:  (a) default in any payment of interest on any Note when due and payable, and the  default continues for a period of 30 days;  (b) default in the payment of principal of any Note when due and payable on the  Maturity Date, upon Optional Redemption, upon any required repurchase, upon declaration of  acceleration or otherwise;  (c) failure by the Company to comply with its obligation to convert the Notes in  accordance with this Indenture upon exercise of a Holder’s conversion right and such failure  continues for five (5) Business Days;  (d) failure by the Company to issue a Fundamental Change Company Notice in  accordance with Section 15.02(c) or notice of a specified corporate event in accordance with  Section 14.01(b)(ii) or 14.01(b)(iii), in each case when due;  (e) failure by the Company to comply with its obligations under Article 11;  (f) failure by the Company for 60 consecutive days after written notice from the  Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding has  been received by the Company to comply with any of its other agreements contained in the Notes  or this Indenture;  





 






32  #95220814v17  (g) default by the Company or any Significant Subsidiary of the Company with respect  to any mortgage, agreement or other instrument under which there is outstanding, or by which  there is secured or evidenced, any indebtedness for money borrowed in excess of $50,000,000  (or its foreign currency equivalent) in the aggregate of the Company and/or any such Subsidiary,  whether such indebtedness exists as of the date of this Indenture or is thereafter created, where  such default (i) results in such indebtedness becoming or being declared due and payable prior to  its stated maturity date or (ii) constitutes a failure to pay the principal or interest of any such debt  when due and payable (after the expiration of all applicable grace periods) at its stated maturity,  upon required repurchase, upon declaration of acceleration or otherwise, and in the cases of  clauses (i) and (ii), such acceleration shall not have been rescinded or annulled or such failure to  pay or default shall not have been cured or waived, or such indebtedness is not paid or  discharged, as the case may be, within 30 days after written notice to the Company by the  Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal  amount of Notes then outstanding in accordance with this Indenture;  (h) a final judgment or judgments for the payment of $50,000,000 (or its foreign  currency equivalent) or more (excluding any amounts covered by insurance) in the aggregate  rendered against the Company or any Significant Subsidiary of the Company, which judgment is  not discharged, bonded, paid, waived or stayed within 60 days after (i) the date on which the  right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all  rights to appeal have been extinguished;  (i) the Company, any Significant Subsidiary or any group of Subsidiary Guarantors  that, taken together, would constitute a Significant Subsidiary, shall commence a voluntary case  or other proceeding seeking liquidation, reorganization or other relief with respect to the  Company, such Significant Subsidiary or such group of Subsidiary Guarantors or its respective  debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking  the appointment of a trustee, receiver, liquidator, custodian or other similar official of the  Company, such Significant Subsidiary or such group of Subsidiary Guarantors or any substantial  part of its respective property, or shall consent to any such relief or to the appointment of or  taking possession by any such official in an involuntary case or other proceeding commenced  against it, or shall make a general assignment for the benefit of creditors or shall admit in writing  its inability to pay its debts as they become due;   (j) an involuntary case or other proceeding shall be commenced against the Company,  any Significant Subsidiary or any group of Subsidiary Guarantors that, taken together, would  constitute a Significant Subsidiary seeking liquidation, reorganization or other relief with respect  to the Company, such Significant Subsidiary or such group of Subsidiary Guarantors or its  respective debts under any bankruptcy, insolvency or other similar law now or hereafter in effect  or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of  the Company, such Significant Subsidiary or such group of Subsidiary Guarantors or any  substantial part of its respective property, and such involuntary case or other proceeding shall  remain undismissed and unstayed for a period of 60 consecutive days; or   (k) except as permitted in this Indenture, any Subsidiary Guarantee of a Subsidiary  Guarantor that is a Significant Subsidiary, or the Subsidiary Guarantees of any group of  Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary shall be  





 






33  #95220814v17  held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be  in full force and effect, or any Subsidiary Guarantor that is a Significant Subsidiary, or any group  of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary, or any  Person acting on behalf of any such Subsidiary Guarantor’s or such groups’ behalf, shall deny or  disaffirm such Subsidiary Guarantor’s or Subsidiary Guarantors’ obligations under its or their  Subsidiary Guarantee(s).  The Trustee shall not be deemed to have notice of any Default or Event of Default (other  than a payment Default) unless written notice of any event which is in fact such Default or Event  of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of  the Trustee and such notice references the Notes and this Indenture.  Section 6.02 Acceleration; Rescission and Annulment.  If one or more Events of Default  shall have occurred and be continuing (whatever the reason for such Event of Default and  whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any  judgment, decree or order of any court or any order, rule or regulation of any administrative or  governmental body), then, and in each and every such case (other than an Event of Default  specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or a Subsidiary  Guarantor (and not with respect to any other Subsidiary of the Company)), unless the principal of  all of the Notes shall have already become due and payable, either the Trustee or the Holders of  at least 25% in aggregate principal amount of the Notes then outstanding determined in  accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given  by Holders), may (and the Trustee, at the written request of such Holders, shall) declare 100% of  the principal of, and accrued and unpaid interest on, all the Notes to be due and payable  immediately, and upon any such declaration the same shall become and shall automatically be  immediately due and payable, anything contained in this Indenture or in the Notes to the contrary  notwithstanding.  If an Event of Default specified in Section 6.01(i) or Section 6.01(j) with  respect to the Company or a Subsidiary Guarantor (and not with respect to any other Subsidiary  of the Company) occurs and is continuing, 100% of the principal of, and accrued and unpaid  interest, if any, on, all Notes shall become and shall automatically be immediately due and  payable.    The immediately preceding paragraph, however, is subject to the conditions that if, at any  time after the principal of the Notes shall have been so declared due and payable (or have  become immediately due and payable), and before any judgment or decree for the payment of the  monies due shall have been obtained or entered as hereinafter provided, the Company shall pay  or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid  interest upon all Notes and the principal of any and all Notes that shall have become due  otherwise than by acceleration (with interest on overdue installments of accrued and unpaid  interest to the extent that payment of such interest is enforceable under applicable law, and on  such principal at the rate borne by the Notes at such time) and amounts due to the Trustee  pursuant to Section 7.06, and if (1) rescission would not conflict with any judgment or decree of  a court of competent jurisdiction, (2) any and all existing Events of Default under this Indenture,  other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes  that shall have become due solely by such acceleration, shall have been cured, remedied or  waived pursuant to Section 6.09 and (3) the Company has paid to the Trustee a sum sufficient to  pay for all sums paid or advanced by the Trustee and the reasonable compensation, expenses,  





 






34  #95220814v17  disbursements and advances of the Trustee, its agents and its counsel incurred in connection with  such Default or Event of Default, then and in every such case (except as provided in the  immediately succeeding sentence) the Holders of a majority in aggregate principal amount of the  Notes then outstanding, by written notice to the Company and to the Trustee, may waive all  Defaults or Events of Default with respect to the Notes and rescind and annul such declaration  and its consequences and such Default shall cease to exist, and any Event of Default arising  therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such  waiver or rescission and annulment shall extend to or shall affect any subsequent Default or  Event of Default, or shall impair any right consequent thereon.  Notwithstanding anything to the  contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any  Default or Event of Default resulting from (i) the nonpayment of the principal (including the  Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued  and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required or (iii) a  failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.  Section 6.03 Additional Interest.  Notwithstanding anything in this Indenture or in the  Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default  relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b)  shall for the first 365 days after the occurrence of such an Event of Default consist exclusively of  the right to receive Additional Interest on the Notes at a rate equal to (i) 0.25% per annum of the  principal amount of the Notes outstanding for each day on which such Event of Default is  continuing during the 180-day period beginning on, and including, the date on which such Event  of Default first occurs and (ii) 0.50% per annum of the principal amount of the Notes outstanding  for each day on which such Event of Default is continuing from the 181st day until the 365th day  after the occurrence of such Event of Default; provided that in no event shall Additional Interest  payable at the Company’s election pursuant to this Section 6.03 for failure to comply with the  Company’s obligations set forth in Section 4.06(b), together with any Additional Interest payable  as a result of the Company’s failure to timely file any document or report that the Company is  required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as  applicable (after giving effect to all applicable grace periods thereunder and other than reports on  Form 8-K) as set forth in Section 4.06(d), accrue at a rate in excess of 0.50% per annum pursuant  to this Indenture, regardless of the number of events or circumstances giving rise to the  requirement to pay such Additional Interest. Additional Interest payable pursuant to this Section  6.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section  4.06(d) or Section 4.06(e). If the Company so elects, such Additional Interest shall be payable in  the same manner and on the same dates as the stated interest payable on the Notes.  On the 366th  day after such Event of Default (if the Event of Default relating to the Company’s failure to file  is not cured or waived prior to such 366th day), the Notes shall be immediately subject to  acceleration as provided in Section 6.02.  The provisions of this paragraph will not affect the  rights of Holders of Notes in the event of the occurrence of any Event of Default other than the  Company’s failure to comply with its obligations as set forth in Section 4.06(b).  In the event the  Company does not elect to pay Additional Interest following an Event of Default in accordance  with this Section 6.03 or the Company elected to make such payment but does not pay the  Additional Interest when due, the Notes shall be immediately subject to acceleration as provided  in Section 6.02.  





 






35  #95220814v17  In order to elect to pay Additional Interest as the sole remedy during the first 365 days  after the occurrence of any Event of Default described in the immediately preceding paragraph,  the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such  election prior to the beginning of such 365-day period.  Upon the failure to timely give such  notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02.  Section 6.04 Payments of Notes on Default; Suit Therefor.  If an Event of Default  described in clause (a) or (b) of Section 6.01 shall have occurred and is continuing, the Company  shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes,  the whole amount then due and payable on the Notes for principal and interest, if any, with, to  the extent lawful, interest on any overdue principal and interest, if any, at the rate borne by the  Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover  any amounts due to the Trustee under Section 7.06.  If the Company shall fail to pay such  amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express  trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may  prosecute such proceeding to judgment or final decree and may enforce the same against the  Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be  payable in the manner provided by law out of the property of the Company or any other obligor  upon the Notes, wherever situated.  In the event there shall be pending proceedings for the bankruptcy or for the  reorganization of the Company or any other obligor on the Notes under Title 11 of the United  States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy  or reorganization, liquidator, sequestrator or similar official shall have been appointed for or  taken possession of the Company or such other obligor, the property of the Company or such  other obligor, or in the event of any other judicial proceedings relative to the Company or such  other obligor upon the Notes, or to the creditors or property of the Company or such other  obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and  payable as therein expressed or by declaration or otherwise and irrespective of whether the  Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be  entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a  claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in  respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and  other papers or documents and to take such other actions as it may deem necessary or advisable  in order to have the claims of the Trustee (including any claim for the reasonable compensation,  expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders  allowed in such judicial proceedings relative to the Company or any other obligor on the Notes,  its or their creditors, or its or their property, and to collect and receive any monies or other  property payable or deliverable on any such claims, and to distribute the same after the deduction  of any amounts due to the Trustee under Section 7.06; and any receiver, assignee or trustee in  bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by  each of the Holders to make such payments to the Trustee, as administrative expenses, 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 reasonable compensation, expenses, advances and  disbursements, including agents and counsel fees, and including any other amounts due to the  Trustee under Section 7.06, incurred by it up to the date of such distribution.  To the extent that  





 






36  #95220814v17  such payment of reasonable compensation, expenses, advances and disbursements out of the  estate in any such proceedings shall be denied for any reason, payment of the same shall be  secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies,  securities and other property that the Holders of the Notes may be entitled to receive in such  proceedings, whether in liquidation or under any plan of reorganization or arrangement or  otherwise.  Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent  to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,  adjustment or composition affecting such Holder 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.  All rights of action and of asserting claims under this Indenture, or under any of the  Notes, may be enforced by the Trustee without the possession of any of the Notes, or the  production thereof at any trial or other proceeding relative thereto, and any such suit or  proceeding instituted by the Trustee shall be brought in its own name as trustee of an express  trust, and any recovery of judgment shall, after provision for the payment of the reasonable  compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be  for the ratable benefit of the Holders of the Notes.  In any proceedings brought by the Trustee (and in any proceedings involving the  interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee  shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any  Holders of the Notes parties to any such proceedings.  In case the Trustee shall have proceeded to enforce any right under this Indenture and  such proceedings shall have been discontinued or abandoned because of any waiver pursuant to  Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or  shall have been determined adversely to the Trustee, then and in every such case the Company,  the Holders and the Trustee shall, subject to any determination in such proceeding, be restored  respectively to their several positions and rights hereunder, and all rights, remedies and powers  of the Company, the Holders and the Trustee shall continue as though no such proceeding had  been instituted.  Section 6.05 Application of Monies Collected by Trustee.  Any monies collected by the  Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following  order, at the date or dates fixed by the Trustee for the distribution of such monies, upon  presentation of the several Notes, and stamping thereon the payment, if only partially paid, and  upon surrender thereof, if fully paid:  First, to the payment of all amounts due the Trustee under Section 7.06;  Second, in case the principal of the outstanding Notes shall not have become due and be  unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default  in the order of the date due of the payments of such interest and cash due upon conversion, as the  case may be, with interest (to the extent that such interest has been collected by the Trustee)  





 






37  #95220814v17  upon such overdue payments at the rate borne by the Notes at such time, such payments to be  made ratably to the Persons entitled thereto;  Third, in case the principal of the outstanding Notes shall have become due, by  declaration or otherwise, and be unpaid to the payment of the whole amount (including, if  applicable, the payment of the Redemption Price, the Fundamental Change Repurchase Price and  any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest,  if any, with interest on the overdue principal and, to the extent that such interest has been  collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at  such time, and in case such monies shall be insufficient to pay in full the whole amounts so due  and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the  Redemption Price, the Fundamental Change Repurchase Price and any cash due upon  conversion) and interest without preference or priority of principal over interest, or of interest  over principal or of any installment of interest over any other installment of interest, or of any  Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the  Redemption Price, the Fundamental Change Repurchase Price and any cash due upon  conversion) and accrued and unpaid interest; and   Fourth, to the payment of the remainder, if any, to the Company.  Section 6.06 Proceedings by Holders.  Except to enforce the right to receive payment of  principal (including, if applicable, the Redemption Price and the Fundamental Change  Repurchase Price) or interest when due, or the right to receive payment or delivery of the  consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by  availing of any provision of this Indenture to institute any suit, action or proceeding in equity or  at law upon or under or with respect to this Indenture, or for the appointment of a receiver,  trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:   (a) such Holder previously shall have given to the Trustee written notice of an Event of  Default and of the continuance thereof, as herein provided;  (b) Holders of at least 25% in aggregate principal amount of the Notes then  outstanding shall have made written request upon the Trustee to institute such action, suit or  proceeding in its own name as Trustee hereunder;  (c) such Holders shall have offered to the Trustee such security or indemnity  reasonably satisfactory to it against any loss, liability or expense to be incurred therein or  thereby;  (d) the Trustee for 60 days after its receipt of such notice, request and offer of such  security or indemnity, shall have neglected or refused to institute any such action, suit or  proceeding; and   (e) no direction that, in the opinion of the Trustee, is inconsistent with such written  request shall have been given to the Trustee by the Holders of a majority of the aggregate  principal amount of the Notes then outstanding within such 60-day period pursuant to Section  6.09,   





 






38  #95220814v17  it being understood and intended, and being expressly covenanted by the taker and Holder of  every Note with every other taker and Holder and the Trustee that no one or more Holders 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 Holder, or to obtain or seek to  obtain priority over or preference to any other such Holder, or to enforce any right under this  Indenture, except in the manner herein provided and for the equal, ratable and common benefit  of all Holders (except as otherwise provided herein).  For the protection and enforcement of this  Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be  given either at law or in equity.  Notwithstanding any other provision of this Indenture and any provision of any Note,  each Holder shall have the right to receive payment or delivery, as the case may be, of (x) the  principal (including the Redemption Price and the Fundamental Change Repurchase Price, if  applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon  conversion of, such Note, on or after the respective due dates expressed or provided for in such  Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery,  as the case may be.  Section 6.07 Proceedings by Trustee.  In case of an Event of Default, the Trustee may in  its discretion proceed to protect and enforce the rights vested in it by this Indenture by such  appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either  by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the  specific enforcement of any covenant or agreement contained in this Indenture or in aid of the  exercise of any power granted in this Indenture, or to enforce any other legal or equitable right  vested in the Trustee by this Indenture or by law.  Section 6.08 Remedies Cumulative and Continuing.  Except as provided in the last  paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to  the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any  thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes,  by judicial proceedings or otherwise, to enforce the performance or observance of the covenants  and agreements contained in this Indenture, and no delay or omission of the Trustee or of any  Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of  Default shall impair any such right or power, or shall be construed to be a waiver of any such  Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section  6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders  may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or  by the Holders.  Section 6.09 Direction of Proceedings and Waiver of Defaults by Majority of Holders.   The Holders of a majority of the aggregate principal amount of the Notes at the time outstanding  determined in accordance with Section 8.04 shall have the right to direct the time, method and  place of conducting any proceeding for any remedy available to the Trustee or exercising any  trust or power conferred on the Trustee with respect to the Notes; provided, however, that (a)  such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the  Trustee may take any other action deemed proper by the Trustee that is not inconsistent with  such direction.  The Trustee may refuse to follow any direction that it determines is unduly  





 






39  #95220814v17  prejudicial to the rights of any other Holder or that would involve the Trustee in personal  liability.  The Holders of a majority in aggregate principal amount of the Notes at the time  outstanding determined in accordance with Section 8.04 may on behalf of the Holders of all of  the Notes waive (including consents to such waiver obtained in connection with a repurchase of,  or tender or exchange offer for, Notes) any or all existing or past Defaults or Events of Default  hereunder and its consequences except (i) a default in the payment of accrued and unpaid  interest, if any, on, or the principal (including any Redemption Price and any Fundamental  Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the  provisions of Section 6.01, (ii) a failure by the Company to pay or deliver, as the case may be,  the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or  provision hereof which under Article 10 cannot be modified or amended without the consent of  each Holder of an outstanding Note affected.  Upon any such waiver the Company, the Trustee  and the Holders of the Notes shall be restored to their former positions and rights hereunder; but  no such waiver shall extend to any subsequent or other Default or Event of Default or impair any  right consequent thereon.  Whenever any Default or Event of Default hereunder shall have been  waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes  of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no  such waiver shall extend to any subsequent or other Default or Event of Default or impair any  right consequent thereon.  Section 6.10 Notice of Defaults.  The Trustee shall, within 90 days after the occurrence  and continuance of a Default of which a Responsible Officer has received written notice of such  Default, deliver to all Holders notice of all Defaults known to a Responsible Officer, unless such  Defaults shall have been cured or waived before the giving of such notice; provided that, except  in the case of a Default in the payment of the principal of (including the Redemption Price and  the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid interest on, any  of the Notes or a Default in the payment or delivery of the consideration due upon conversion,  the Trustee shall be protected in withholding such notice if it in good faith determines that the  withholding of such notice is in the interests of the Holders.  Section 6.11 Undertaking to Pay Costs.  All parties to this Indenture agree, and each  Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may,  in its discretion, require, in any suit for the enforcement of any right or remedy under this  Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the  filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that  such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and  expenses, against any party litigant in such suit, having due regard to the merits and good faith of  the claims or defenses made by such party litigant; provided that the provisions of this Section  6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any  suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in  principal amount of the Notes at the time outstanding determined in accordance with Section  8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal  of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the  Redemption Price and the Fundamental Change Repurchase Price, if applicable) on or after the  due date expressed or provided for in such Note or to any suit for the enforcement of the right to  





 






40  #95220814v17  convert any Note, or receive the consideration due upon conversion, in accordance with the  provisions of Article 14.  ARTICLE 7  CONCERNING THE TRUSTEE  Section 7.01 Duties and Responsibilities of Trustee.  The Trustee, prior to the occurrence  of an Event of Default and after the curing or waiver of all Events of Default that may have  occurred, undertakes to perform such duties and only such duties as are specifically set forth in  this Indenture.  In the event an Event of Default has occurred and is continuing, the Trustee shall  exercise such of the rights and powers vested in it by this Indenture, and use the same degree of  care and skill in its exercise, as a prudent person would exercise or use under the circumstances  in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is  continuing, the Trustee will be under no obligation to exercise any of the rights or powers under  this Indenture at the request or direction of any of the Holders unless such Holders have offered  to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or  expense that might be incurred by it in compliance with such request or direction.  No provision of this Indenture shall be construed to relieve the Trustee from liability for  its own grossly negligent action, its own grossly negligent failure to act or its own willful  misconduct, except that:  (a) prior to the occurrence of an Event of Default and after the curing or waiving of all  Events of Default that may have occurred:  (i) the duties and obligations of the Trustee shall be determined solely by the  express provisions of this Indenture, and the Trustee shall not be liable except for the  performance of such duties and obligations as are specifically set forth in this Indenture  and no implied covenants or obligations shall be read into this Indenture against the  Trustee; and  (ii) in the absence of bad faith and willful misconduct on the part of the  Trustee, the Trustee may conclusively rely, as to the truth of the statements and the  correctness of the opinions expressed therein, upon any certificates or opinions furnished  to the Trustee and conforming to the requirements of this Indenture; but, in the case of  any such certificates or opinions that by any provisions hereof are specifically required to  be furnished to the Trustee, the Trustee shall be under a duty to examine the same to  determine whether or not they conform to the requirements of this Indenture (but need  not confirm or investigate the accuracy of any mathematical calculations or other facts  stated therein);  (b) the Trustee shall not be liable for any error of judgment made in good faith by a  Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was  grossly negligent in ascertaining the pertinent facts;  (c) the Trustee shall not be liable with respect to any action taken or omitted to be  taken by it in good faith in accordance with the direction of the Holders of not less than a  





 






41  #95220814v17  majority of the aggregate principal amount of the Notes at the time outstanding determined as  provided in Section 8.04 relating to the time, method and place of conducting any proceeding for  any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee,  under this Indenture;  (d) whether or not therein provided, every provision of this Indenture relating to the  conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the  provisions of this Section;  (e) the Trustee shall not be liable in respect of any payment (as to the correctness of  amount, entitlement to receive or any other matters relating to payment) or notice effected by the  Company or any Paying Agent or any records maintained by any co-Note Registrar with respect  to the Notes;  (f) if any party fails to deliver a notice relating to an event the fact of which, pursuant  to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on  its failure to receive such notice as reason to act as if no such event occurred, unless a   Responsible Officer of the Trustee had actual knowledge of such event;  (g) in the absence of written investment direction from the Company, all cash received  by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the  Trustee be liable for the selection of investments or for investment losses incurred thereon or for  losses incurred as a result of the liquidation of any such investment prior to its maturity date or  the failure of the party directing such investments prior to its maturity date or the failure of the  party directing such investment to provide timely written investment direction, and the Trustee  shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such  written investment direction from the Company; and  (h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying  Agent, Conversion Agent, Bid Solicitation Agent or transfer agent hereunder, the rights and  protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such  Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer  agent.  None of the provisions contained in this Indenture shall require the Trustee to expend or  risk its own funds or otherwise incur personal financial liability in the performance of any of its  duties or in the exercise of any of its rights or powers.  Section 7.02 Reliance on Documents, Opinions, Etc.  Except as otherwise provided in  Section 7.01:  (a) the Trustee may conclusively rely and shall be fully protected in acting upon any  resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,  bond, note, coupon or other paper or document believed by it in good faith to be genuine and to  have been signed or presented by the proper party or parties;  





 






42  #95220814v17  (b) any request, direction, order or demand of the Company mentioned herein shall be  sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be  herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a  copy thereof certified by the Secretary or an Assistant Secretary of the Company;  (c) the Trustee may consult with counsel and require an Opinion of Counsel and any  advice of such counsel or Opinion of Counsel shall be full and complete authorization and  protection in respect of any action taken or omitted by it hereunder in good faith and in  accordance with such advice or Opinion of Counsel;  (d) the Trustee shall not be bound to make any investigation into the facts or matters  stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,  direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its  discretion, may make such further inquiry or investigation into such facts or matters as it may see  fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be  entitled, at a reasonable time on any Business Day, to examine the books, records and premises  of the Company, personally or by agent or attorney at the expense of the Company and shall  incur no liability of any kind by reason of such inquiry or investigation;   (e) the Trustee may execute any of the trusts or powers hereunder or perform any  duties hereunder either directly or by or through agents, custodians, nominees or attorneys and  the Trustee shall not be responsible for any misconduct or negligence on the part of any agent,  custodian, nominee or attorney appointed by it with due care hereunder;   (f) the permissive rights of the Trustee enumerated herein shall not be construed as  duties; and  (g) in no event shall the Trustee be liable for any special, indirect, consequential or  punitive loss or damage of any kind whatsoever (including but not limited to lost profits), even if  the Trustee has been advised of the likelihood of such loss or damage and regardless of the form  of action other than any such loss or damage caused by the Trustee’s willful misconduct or gross  negligence.  Section 7.03 No Responsibility for Recitals, Etc.  The recitals contained herein and in the  Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the  Company, and the Trustee assumes no responsibility for the correctness of the same.  The  Trustee makes no representations as to the validity or sufficiency of this Indenture or of the  Notes.  The Trustee shall not be accountable for the use or application by the Company of any  Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity  with the provisions of this Indenture.  Section 7.04 Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note  Registrar May Own Notes.  The Trustee, any Paying Agent, any Conversion Agent, Bid  Solicitation Agent (if other than the Company or any Affiliate thereof) or Note Registrar, in its  individual or any other capacity, may become the owner or pledgee of Notes with the same rights  it would have if it were not the Trustee, Paying Agent, Conversion Agent, Bid Solicitation Agent  or Note Registrar.  





 






43  #95220814v17  Section 7.05 Monies and Shares of Common Stock to Be Held in Trust.  All monies and  shares of Common Stock received by the Trustee shall, until used or applied as herein provided,  be held in trust for the purposes for which they were received.  Money and shares of Common  Stock 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 or  shares of Common Stock received by it hereunder except as may be agreed from time to time by  the Company and the Trustee.  Section 7.06 Compensation and Expenses of Trustee.  The Company covenants and  agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable  compensation for all services rendered by it hereunder in any capacity (which shall not be  limited by any provision of law in regard to the compensation of a trustee of an express trust) as  mutually agreed to in writing between the Trustee and the Company, and the Company will pay  or reimburse the Trustee upon its request for all reasonable expenses, disbursements and  advances reasonably incurred or made by the Trustee in accordance with any of the provisions of  this Indenture in any capacity thereunder (including the reasonable compensation and the  expenses and disbursements of its agents and counsel and of all Persons not regularly in its  employ) except any such expense, disbursement or advance as shall have been caused by its  gross negligence, willful misconduct or bad faith.  The Company also covenants to indemnify the  Trustee in any capacity under this Indenture and any other document or transaction entered into  in connection herewith and its agents and any authenticating agent for, and to hold them  harmless against, any loss, claim, damage, liability or expense incurred without gross negligence,  willful misconduct or bad faith on the part of the Trustee, its officers, directors, agents or  employees, or such agent or authenticating agent, as the case may be, and arising out of or in  connection with the acceptance or administration of this Indenture or in any other capacity  hereunder, including the costs and expenses of defending themselves against any claim of  liability in the premises.  The obligations of the Company under this Section 7.06 to compensate  or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and  advances shall be secured by a senior claim to which the Notes are hereby made subordinate on  all money or property held or collected by the Trustee, except, subject to the effect of Section  6.05, funds held in trust herewith for the benefit of the Holders of particular Notes.  The  Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be  subordinate to any other liability or indebtedness of the Company.  The obligation of the  Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture  and the earlier resignation or removal of the Trustee.  The Company need not pay for any  settlement made without its consent, which consent shall not be unreasonably withheld.  The  indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and  employees of the Trustee.  Without prejudice to any other rights available to the Trustee under applicable law, when  the Trustee and its agents and any authenticating agent incur expenses or render services after an  Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the expenses and the  compensation for the services are intended to constitute expenses of administration under any  bankruptcy, insolvency or similar laws.  Section 7.07 Officer’s Certificate as Evidence.  Except as otherwise provided in Section  7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it  





 






44  #95220814v17  necessary or desirable that a matter be proved or established prior to taking or omitting any  action hereunder, such matter (unless other evidence in respect thereof be herein specifically  prescribed) may, in the absence of gross negligence, willful misconduct and bad faith on the part  of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate  delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence,  willful misconduct and bad faith on the part of the Trustee, shall be full warrant to the Trustee  for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.  Section 7.08 Eligibility of Trustee.  There shall at all times be a Trustee hereunder which  shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act  were applicable hereto) to act as such and 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 any supervising or examining authority, then for the purposes of this  Section, the combined capital and surplus of such Person shall be deemed to be its combined  capital and surplus as set forth in its most recent report of condition so published.  If at any time  the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall  resign immediately in the manner and with the effect hereinafter specified in this Article.  Section 7.09 Resignation or Removal of Trustee.  (a) The Trustee may at any time resign  by giving written notice of such resignation to the Company and by delivering notice thereof to  the Holders.  Upon receiving such notice of resignation, the Company shall promptly appoint a  successor trustee by written instrument, in duplicate, executed by order of the Board of  Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy  to the successor trustee.  If no successor trustee shall have been so appointed and have accepted  appointment within 60 days after the giving of such notice of resignation to the Holders, the  resigning Trustee may, upon ten Business Days’ notice to the Company and the Holders, at the  expense of the Company, petition any court of competent jurisdiction for the appointment of a  successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least  six months (or since the date of this Indenture) may, subject to the provisions of Section 6.11, on  behalf of himself or herself and all others similarly situated, petition any such court for the  appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it  may deem proper and prescribe, appoint a successor trustee.  (b) In case at any time any of the following shall occur:  (i) the Trustee shall cease to be eligible in accordance with the provisions of  Section 7.08 and shall fail to resign after written request therefor by the Company or by  any such Holder, or  (ii) the Trustee shall become incapable of acting, or shall be adjudged a  bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or  any public officer shall take charge or control of the Trustee or of its property or affairs  for the purpose of rehabilitation, conservation or liquidation,  then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a  successor trustee by written instrument, in duplicate, executed by order of the Board of  Directors, one copy of which instrument shall be delivered to the Trustee so removed and one  





 






45  #95220814v17  copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has  been a bona fide holder of a Note or Notes for at least six months (or since the date of this  Indenture) may, on behalf of himself or herself and all others similarly situated, petition any  court of competent jurisdiction for the removal of the Trustee and the appointment of a successor  trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and  prescribe, remove the Trustee and appoint a successor trustee.  (c) The Holders of a majority in aggregate principal amount of the Notes at the time  outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee  and nominate a successor trustee that shall be deemed appointed as successor trustee unless  within ten days after notice to the Company of such nomination the Company objects thereto, in  which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise  as in Section 7.09(a) provided, may petition any court of competent jurisdiction for an  appointment of a successor trustee.  (d) Any resignation or removal of the Trustee and appointment of a successor trustee  pursuant to any of the provisions of this Section 7.09 shall become effective upon acceptance of  appointment by the successor trustee as provided in Section 7.10.  Section 7.10 Acceptance by Successor Trustee.  Any successor trustee appointed as  provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its  predecessor trustee an instrument accepting such appointment hereunder, and thereupon the  resignation or removal of the predecessor trustee shall become effective and such successor  trustee, without any further act, deed or conveyance, shall become vested with all the rights,  powers, duties and obligations of its predecessor hereunder, with like effect as if originally  named as Trustee herein; but, nevertheless, on the written request of the Company or of the  successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it  pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such  successor trustee all the rights and powers of the trustee so ceasing to act.  Upon request of any  such successor trustee, the Company shall execute any and all instruments in writing for more  fully and certainly vesting in and confirming to such successor trustee all such rights and powers.   Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby  made subordinate on all money or property held or collected by such trustee as such, except for  funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due  it pursuant to the provisions of Section 7.06.  No successor trustee shall accept appointment as provided in this Section 7.10 unless at  the time of such acceptance such successor trustee shall be eligible under the provisions of  Section 7.08.  Upon acceptance of appointment by a successor trustee as provided in this Section 7.10,  each of the Company and the successor trustee, at the written direction and at the expense of the  Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder  to the Holders.  If the Company fails to deliver such notice within ten days after acceptance of  appointment by the successor trustee, the successor trustee shall cause such notice to be  delivered at the expense of the Company.  





 






46  #95220814v17  Section 7.11 Succession by Merger, Etc.  Any corporation or other entity into which the  Trustee may be merged or converted or with which it may be consolidated, or any corporation or  other entity resulting from any merger, conversion or consolidation to which the Trustee shall be  a party, or any corporation or other entity succeeding to all or substantially all of the corporate  trust business of the Trustee (including the administration of this Indenture), shall be the  successor to the Trustee hereunder without the execution or filing of any paper or any further act  on the part of any of the parties hereto; provided that in the case of any corporation or other  entity succeeding to all or substantially all of the corporate trust business of the Trustee such  corporation or other entity shall be eligible under the provisions of Section 7.08.  In case at the time such successor to the Trustee shall succeed to the trusts created by this  Indenture, any of the Notes shall have been authenticated but not delivered, any such successor  to the Trustee may adopt the certificate of authentication of any predecessor trustee or  authenticating agent appointed by such predecessor trustee, and deliver such Notes so  authenticated; and in case at that time any of the Notes shall not have been authenticated, any  successor to the Trustee or an authenticating agent appointed by such successor trustee may  authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of  the successor trustee; and in all such cases such certificates shall have the full force which it is  anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have;  provided, however, that the right to adopt the certificate of authentication of any predecessor  trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its  successor or successors by merger, conversion or consolidation.  Section 7.12 Trustee’s Application for Instructions from the Company.  Any application  by the Trustee for written instructions from the Company (other than with regard to any action  proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders  of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any  action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or  after which such action shall be taken or such omission shall be effective.  The Trustee shall not  be liable to the Company for any action taken by, or omission of, the Trustee in accordance with  a proposal included in such application on or after the date specified in such application (which  date shall not be less than three Business Days after the date any officer that the Company has  indicated to the Trustee should receive such application actually receives such application, unless  any such officer shall have consented in writing to any earlier date), unless, prior to taking any  such action (or the effective date in the case of any omission), the Trustee shall have received  written instructions in accordance with this Indenture in response to such application specifying  the action to be taken or omitted.  ARTICLE 8  CONCERNING THE HOLDERS  Section 8.01 Action by Holders.  Whenever in this Indenture it is provided that the  Holders of a specified percentage of the aggregate principal amount of the Notes may take any  action (including the making of any demand or request, the giving of any notice, consent or  waiver or the taking of any other action), the fact that at the time of taking any such action, the  Holders of such specified percentage have joined therein may be evidenced (a) by any instrument  





 






47  #95220814v17  or any number of instruments of similar tenor executed by Holders in person or by agent or  proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any  meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by  a combination of such instrument or instruments and any such record of such a meeting of  Holders.  Whenever the Company or the Trustee solicits the taking of any action by the Holders  of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of  such solicitation, a date as the record date for determining Holders entitled to take such action.   The record date if one is selected shall be not more than fifteen days prior to the date of  commencement of solicitation of such action.  Section 8.02 Proof of Execution by Holders.  Subject to the provisions of Section 7.01,  Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent  or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as  may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.  The  holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.   The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.  Section 8.03 Who Are Deemed Absolute Owners.  The Company, the Trustee, any  authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may  deem the Person in whose name a Note shall be registered upon the Note Register to be, and may  treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and  notwithstanding any notation of ownership or other writing thereon made by any Person other  than the Company or any Note Registrar) for the purpose of receiving payment of or on account  of the principal (including any Redemption Price and any Fundamental Change Repurchase  Price) of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion  of such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying  Agent nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the  contrary.  All such payments or deliveries so made to any Holder for the time being, or upon its  order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or  delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable  upon any such Note.  Notwithstanding anything to the contrary in this Indenture or the Notes  following an Event of Default, any holder of a beneficial interest in a Global Note may directly  enforce against the Company, without the consent, solicitation, proxy, authorization or any other  action of the Depositary or any other Person, such holder’s right to exchange such beneficial  interest for a Note in certificated form in accordance with the provisions of this Indenture.  Section 8.04 Company-Owned Notes Disregarded.  In determining whether the Holders  of the requisite aggregate principal amount of Notes have concurred in any direction, consent,  waiver or other action under this Indenture, Notes that are owned by the Company, by any  Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof shall be  disregarded and deemed not to be outstanding for the purpose of any such determination;  provided that for the purposes of determining whether the Trustee shall be protected in relying  on any such direction, consent, waiver or other action only Notes that a Responsible Officer  knows are so owned shall be so disregarded.  Notes so owned that have been pledged in good  faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall  establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes  and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of the Company or  





 






48  #95220814v17  a Subsidiary thereof.  In the case of a dispute as to such right, any decision by the Trustee taken  upon the advice of counsel shall be full protection to the Trustee.  Upon request of the Trustee,  the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying  all Notes, if any, known by the Company to be owned or held by or for the account of any of the  above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such  Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all  Notes not listed therein are outstanding for the purpose of any such determination.  Section 8.05 Revocation of Consents; Future Holders Bound.  At any time prior to (but  not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action  by the Holders of the percentage of the aggregate principal amount of the Notes specified in this  Indenture in connection with such action, any Holder of a Note that is shown by the evidence to  be included in the Notes the Holders of which have consented to such action may, by filing  written notice with the Trustee at its Corporate Trust Office and upon proof of holding as  provided in Section 8.02, revoke such action so far as concerns such Note.  Except as aforesaid,  any such action taken by the Holder of any Note shall be conclusive and binding upon such  Holder and upon all future Holders and owners of such Note and of any Notes issued in  exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether  any notation in regard thereto is made upon such Note or any Note issued in exchange or  substitution therefor or upon registration of transfer thereof.  ARTICLE 9  HOLDERS’ MEETINGS  Section 9.01 Purpose of Meetings.  A meeting of Holders may be called at any time and  from time to time pursuant to the provisions of this Article 9 for any of the following purposes:  (a) to give any notice to the Company or to the Trustee or to give any directions to the  Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of  Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to  take any other action authorized to be taken by Holders pursuant to any of the provisions of  Article 6;  (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions  of Article 7;  (c) to consent to the execution of an indenture or indentures supplemental hereto  pursuant to the provisions of Section 10.02; or  (d) to take any other action authorized to be taken by or on behalf of the Holders of any  specified aggregate principal amount of the Notes under any other provision of this Indenture or  under applicable law.  Section 9.02 Call of Meetings by Trustee.  The Trustee may at any time call a meeting of  Holders to take any action specified in Section 9.01, to be held at such time and at such place as  the Trustee shall determine.  Notice of every meeting of the Holders, setting forth the time and  the place of such meeting and in general terms the action proposed to be taken at such meeting  





 






49  #95220814v17  and the establishment of any record date pursuant to Section 8.01, shall be delivered to Holders  of such Notes.  Such notice shall also be delivered to the Company.  Such notices shall be  delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.  Any meeting of Holders shall be valid without notice if the Holders of all Notes then  outstanding are present in person or by proxy or if notice is waived before or after the meeting by  the Holders of all Notes then outstanding, and if the Company and the Trustee are either present  by duly authorized representatives or have, before or after the meeting, waived notice.  Section 9.03 Call of Meetings by Company or Holders.  In case at any time the Company,  pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount  of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by  written request setting forth in reasonable detail the action proposed to be taken at the meeting,  and the Trustee shall not have delivered the notice of such meeting within 20 days after receipt  of such request, then the Company or such Holders may determine the time and the place for  such meeting and may call such meeting to take any action authorized in Section 9.01, by  delivering notice thereof as provided in Section 9.02.  Section 9.04 Qualifications for Voting.  To be entitled to vote at any meeting of Holders a  Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting  or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more  Notes on the record date pertaining to such meeting.  The only Persons who shall be entitled to  be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such  meeting and their counsel and any representatives of the Trustee and its counsel and any  representatives of the Company and its counsel.  Section 9.05 Regulations.  Notwithstanding any other provisions of this Indenture, the  Trustee may make such reasonable regulations as it may deem advisable for any meeting of  Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in  regard to the appointment and duties of inspectors of votes, the submission and examination of  proxies, certificates and other evidence of the right to vote, and such other matters concerning  the conduct of the meeting as it shall think fit.  The Trustee shall, by an instrument in writing, appoint a temporary chairman of the  meeting, unless the meeting shall have been called by the Company or by Holders as provided in  Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be,  shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent  secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate  principal amount of the Notes represented at the meeting and entitled to vote at the meeting.  Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or  proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or  represented by him or her; provided, however, that no vote shall be cast or counted at any  meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the  meeting to be not outstanding.  The chairman of the meeting shall have no right to vote other  than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the  proxy to vote on behalf of other Holders.  Any meeting of Holders duly called pursuant to the  





 






50  #95220814v17  provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of  a majority of the aggregate principal amount of Notes represented at the meeting, whether or not  constituting a quorum, and the meeting may be held as so adjourned without further notice.  Section 9.06 Voting.  The vote upon any resolution submitted to any meeting of Holders  shall be by written ballot on which shall be subscribed the signatures of the Holders or of their  representatives by proxy and the outstanding aggregate principal amount of the Notes held or  represented by them.  The permanent chairman of the meeting shall appoint two inspectors of  votes who shall count all votes cast at the meeting for or against any resolution and who shall  make and file with the secretary of the meeting their verified written reports in duplicate of all  votes cast at the meeting.  A record in duplicate of the proceedings of each meeting of Holders  shall be prepared by the secretary of the meeting and there shall be attached to said record the  original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by  one or more Persons having knowledge of the facts setting forth a copy of the notice of the  meeting and showing that said notice was delivered as provided in Section 9.02.  The record  shall show the aggregate principal amount of the Notes voting in favor of or against any  resolution.  The record shall be signed and verified by the affidavits of the permanent chairman  and secretary of the meeting and one of the duplicates shall be delivered to the Company and the  other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots  voted at the meeting.  Any record so signed and verified shall be conclusive evidence of the matters therein  stated.  Section 9.07 No Delay of Rights by Meeting.  Nothing contained in this Article 9 shall be  deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any  rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in  the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders  under any of the provisions of this Indenture or of the Notes.  ARTICLE 10  SUPPLEMENTAL INDENTURES  Section 10.01 Supplemental Indentures Without Consent of Holders.  The Company,  when authorized by the resolutions of the Board of Directors, the Trustee and each Subsidiary  Guarantor (if any), at the Company’s expense, may from time to time and at any time enter into  an indenture or indentures supplemental hereto for one or more of the following purposes:  (a) to cure any ambiguity, omission, defect or inconsistency;  (b) to provide for the assumption by a Successor Company of the obligations of the  Company under this Indenture pursuant to Article 11 or for the assumption by a successor  Subsidiary Guarantor of the obligations of any of the existing Subsidiary Guarantor under its  Subsidiary Guarantees pursuant to Section 13.04;  (c) to add guarantees with respect to the Notes;  





 






51  #95220814v17  (d) to secure the Notes;  (e) to add to the covenants or Events of Default of the Company for the benefit of the  Holders or surrender any right or power conferred upon the Company;  (f) to make any change that does not adversely affect the rights of any Holder in any  material respect;  (g) in connection with any Merger Event, to provide that the notes are convertible into  Reference Property, subject to the provisions of Section 14.02, and make such related changes to  the terms of the Notes to the extent expressly required by Section 14.07;   (h) to conform the provisions of this Indenture or the Notes to the “Description of  notes” section of the Offering Memorandum;  (i) to comply with the rules of any applicable securities depositary, including DTC, so  long as such amendment does not adversely affect the rights of any Holder in any material  respect;   (j) to increase the Conversion Rate;  (k) to provide for the issuance of additional Notes in accordance with the terms of this  Indenture; or  (l) to appoint a successor Trustee with respect to the Notes.  Upon the written request of the Company, each of the Trustee and each Subsidiary  Guarantor (if any) is hereby authorized to join with the Company in the execution of any such  supplemental indenture, to make any further appropriate agreements and stipulations that may be  therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into  any supplemental indenture that affects the Trustee’s own rights, duties or immunities under this  Indenture or otherwise.  Any supplemental indenture authorized by the provisions of this Section 10.01 may be  executed by the Company, the Subsidiary Guarantors (if any) and the Trustee without the  consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the  provisions of Section 10.02.  Section 10.02 Supplemental Indentures with Consent of Holders.  With the consent  (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate  principal amount of the Notes then outstanding (determined in accordance with Article 8 and  including, without limitation, consents obtained in connection with a repurchase of, or tender or  exchange offer for, Notes), the Company, when authorized by the resolutions of the Board of  Directors, each Subsidiary Guarantor (if any) and the Trustee, at the Company’s expense, may  from time to time and at any time enter into an indenture or indentures supplemental hereto for  the purpose of adding any provisions to or changing in any manner or eliminating any of the  provisions of this Indenture or any supplemental indenture or of modifying in any manner the  





 






52  #95220814v17  rights of the Holders; provided, however, that, without the consent of each Holder of an  outstanding Note affected, no such supplemental indenture shall:  (a) reduce the principal amount of Notes whose Holders must consent to an  amendment;  (b) reduce the rate of or extend the stated time for payment of interest on any Note;  (c) reduce the principal of or extend the Maturity Date of any Note;  (d) make any change that adversely affects the conversion rights of any Notes;  (e) reduce the Redemption Price or the Fundamental Change Repurchase Price of any  Note or amend or modify in any manner adverse to the Holders the Company’s obligation to  make such payments, whether through an amendment or waiver of provisions in the covenants,  definitions or otherwise;  (f) make any Note payable in a currency, or at a place of payment, other than that  stated in the Note;  (g) change the ranking of the Notes;   (h) make any change in this Article 10 that requires each Holder’s consent or in the  waiver provisions in Section 6.02 or Section 6.09; or   (k) other than in accordance with the provisions of this Indenture, eliminate or release  any Subsidiary Guarantee.  Upon the written request of the Company, and upon the filing with the Trustee of  evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee and the  Subsidiary Guarantors (if any) shall join with the Company in the execution of such  supplemental indenture unless such supplemental indenture affects the Trustee’s own rights,  duties or immunities under this Indenture or otherwise, in which case the Trustee may in its  discretion, but shall not be obligated to, enter into such supplemental indenture.  Holders do not need under this Section 10.02 to approve the particular form of any  proposed supplemental indenture.  It shall be sufficient if such Holders approve the substance  thereof.  After any such supplemental indenture becomes effective, the Company shall deliver to  the Holders a notice briefly describing such supplemental indenture. However, the failure to give  such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of  the supplemental indenture.  Section 10.03 Effect of Supplemental Indentures.  Upon the execution of any  supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and  be deemed to be modified and amended in accordance therewith and the respective rights,  limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the  Company, the Subsidiary Guarantors and the Holders shall thereafter be determined, exercised  and enforced hereunder subject in all respects to such modifications and amendments and all the  





 






53  #95220814v17  terms and conditions of any such supplemental indenture shall be and be deemed to be part of the  terms and conditions of this Indenture for any and all purposes.  Section 10.04 Notation on Notes.  Notes authenticated and delivered after the execution  of any supplemental indenture pursuant to the provisions of this Article 10 may, at the  Company’s expense, bear a notation in form approved by the Trustee as to any matter provided  for in such supplemental indenture.  If the Company or the Trustee shall so determine, new Notes  so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any  modification of this Indenture contained in any such supplemental indenture may, at the  Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or  an authenticating agent duly appointed by the Trustee pursuant to Section 17.10) and delivered in  exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.  Section 10.05 Evidence of Compliance of Supplemental Indenture to Be Furnished  Trustee.  In addition to the documents required by Section 17.05, the Trustee shall receive an  Officer’s Certificate and an Opinion of Counsel as conclusive evidence, and each stating, that  any supplemental indenture executed pursuant hereto complies with the requirements of this  Article 10 and is permitted or authorized by this Indenture.  ARTICLE 11  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE OF THE COMPANY  Section 11.01 Company May Consolidate, Etc. on Certain Terms.  Subject to the  provisions of Section 11.02, the Company shall not consolidate with, merge with or into, or sell,  convey, transfer or lease all or substantially all of its properties and assets to another Person,  unless:  (a) the resulting, surviving or transferee Person (the “Successor Company”), if not the  Company, shall be a corporation organized and existing under the laws of the United States of  America, any State thereof or the District of Columbia, and the Successor Company (if not the  Company) shall expressly assume, by supplemental indenture all of the obligations of the  Company under the Notes and this Indenture; and  (b) immediately after giving effect to such transaction, no Default or Event of Default  shall have occurred and be continuing under this Indenture.  For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or  substantially all of the properties and assets of one or more Subsidiaries of the Company to  another Person, which properties and assets, if held by the Company instead of such  Subsidiaries, would constitute all or substantially all of the properties and assets of the Company  on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or  substantially all of the properties and assets of the Company to another Person.  Section 11.02 Successor Corporation to Be Substituted.  In case of any such  consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the  Successor Company, by supplemental indenture, executed and delivered to the Trustee and  satisfactory in form to the Trustee, of the due and punctual payment of the principal of and  





 






54  #95220814v17  accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the  case may be, of any consideration due upon conversion of the Notes and the due and punctual  performance of all of the covenants and conditions of this Indenture to be performed by the  Company, such Successor Company (if not the Company) shall succeed to and, except in the  case of a lease of all or substantially all of the Company’s properties and assets, shall be  substituted for the Company, with the same effect as if it had been named herein as the party of  the first part.  Such Successor Company thereupon may cause to be signed, and may issue either  in its own name or in the name of the Company any or all of the Notes issuable hereunder which  theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon  the order of such Successor Company instead of the Company and subject to all the terms,  conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall  deliver, or cause to be authenticated and delivered, any Notes that previously shall have been  signed and delivered by the Officers of the Company to the Trustee for authentication, and any  Notes that such Successor Company thereafter shall cause to be signed and delivered to the  Trustee for that purpose.  All the Notes so issued shall in all respects have the same legal rank  and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with  the terms of this Indenture as though all of such Notes had been issued at the date of the  execution hereof.  In the event of any such consolidation, merger, sale, conveyance or transfer  (but not in the case of a lease), upon compliance with this Article 11 the Person named as the  “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have  become such in the manner prescribed in this Article 11) may be dissolved, wound up and  liquidated at any time thereafter and, except in the case of a lease, such Person shall be released  from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture  and the Notes.  In case of any such consolidation, merger, sale, conveyance, transfer or lease, such  changes in phraseology and form (but not in substance) may be made in the Notes thereafter to  be issued as may be appropriate.  Section 11.03 Opinion of Counsel to Be Given to Trustee.  No such consolidation,  merger, sale, conveyance, transfer or lease shall be effective unless the Trustee shall receive an  Officer’s Certificate and an Opinion of Counsel as conclusive evidence, and each stating, that  any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption and,  if a supplemental indenture is required in connection with such transaction, such supplemental  indenture, complies with the provisions of this Article 11.  ARTICLE 12  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS  Section 12.01 Indenture and Notes Solely Corporate Obligations.  No recourse for the  payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based  thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant  or agreement of the Company in this Indenture or in any supplemental indenture or in any Note,  nor because of the creation of any indebtedness represented thereby, shall be had against any  incorporator, stockholder, employee, agent, Officer or director or Subsidiary (other than the  Subsidiary Guarantors), as such, past, present or future, of the Company or of any successor  





 






55  #95220814v17  corporation, either directly or through the Company or any successor corporation, whether by  virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or  penalty or otherwise; it being expressly understood that all such liability is hereby expressly  waived and released as a condition of, and as a consideration for, the execution of this Indenture  and the issue of the Notes.  ARTICLE 13  GUARANTEES OF NOTES  Section 13.01 Subsidiary Guarantees.  (a) Subject to this Article 13, each of the  Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder  of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and  assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the  obligations of the Company hereunder or thereunder, that:  (i) the principal of (including the Fundamental Change Repurchase Price or  the Redemption Price, if applicable), premium and interest on, the Notes, and the  payment and, if applicable, delivery of any consideration due upon conversion of the  Notes, shall be promptly paid and, if applicable, delivered in full when due, whether at  maturity, by acceleration, upon repurchase, upon redemption, upon conversion or  otherwise, and interest on the overdue principal of (including the Fundamental Change  Repurchase Price or the Redemption Price, if applicable) and interest on the Notes, if  any, if lawful, and all other obligations of the Company to the Holders or the Trustee  hereunder or thereunder shall be promptly paid and, if applicable, delivered in full or  performed, all in accordance with the terms hereof and thereof; and  (ii) in case of any extension of time of payment or, if applicable, delivery or  renewal of any Notes or any of such other obligations, that same shall be promptly paid  and, if applicable, delivered in full when due or performed in accordance with the terms  of the extension or renewal, whether at stated maturity, by acceleration, upon conversion  or otherwise.  Failing payment or, if applicable, delivery when due of any amount so guaranteed or any  performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and  severally obligated to pay and, if applicable, deliver the same immediately. Each Subsidiary  Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.  (b) The Subsidiary Guarantors hereby agree that their obligations hereunder are  unconditional, irrespective of the validity, regularity or enforceability of the Notes or this  Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of  the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against  the Company, any action to enforce the same or any other circumstance which might otherwise  constitute a legal or equitable discharge or defense of a guarantor. Subject to Section 6.06, each  Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims  with a court in the event of insolvency or bankruptcy of the Company, any right to require a  proceeding first against the Company, protest, notice and all demands whatsoever and covenant  





 






56  #95220814v17  that this Subsidiary Guarantee shall not be discharged except by complete performance of the  obligations contained in the Notes and this Indenture.  (c) If any Holder or the Trustee is required by any court or otherwise to return to the  Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official  acting in relation to either the Company or the Subsidiary Guarantors, any amount paid or, if  applicable, delivered by either to the Trustee or such Holder, this Subsidiary Guarantee, to the  extent theretofore discharged, shall be reinstated in full force and effect.   (d) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of  subrogation in relation to the Holders in respect of any obligations guaranteed hereby until  payment and, if applicable, delivery in full of all obligations guaranteed hereby. Each Subsidiary  Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the  Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby  may be accelerated as provided in Article 6 for the purposes of this Subsidiary Guarantee,  notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect  of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of  such obligations as provided in Article 6, such obligations (whether or not due and payable) shall  forthwith become due and payable by the Subsidiary Guarantors for the purpose of this  Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from  any non-paying or, if applicable, non-delivering Subsidiary Guarantor so long as the exercise of  such right does not impair the rights of the Holders under the Subsidiary Guarantee.  Section 13.02 Limitation on Subsidiary Guarantor Liability.  Each Subsidiary Guarantor,  and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such  parties that the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent  transfer or conveyance for purposes of Title 11, U.S. Code or any similar federal or state law for  the relief of debtors, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer  Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To  effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby  irrevocably agree that the obligations of such Subsidiary Guarantor shall be limited to the  maximum amount that shall, after giving effect to such maximum amount and all other  contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws,  and after giving effect to any collections from, rights to receive contribution from or payments  and, if applicable, deliveries made by or on behalf of any other Subsidiary Guarantor in respect  of the obligations of such other Subsidiary Guarantor under this Article 13, result in the  obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a  fraudulent transfer or conveyance.  Section 13.03 Execution and Delivery of Subsidiary Guarantee.  Each Subsidiary  Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 13.01 shall remain in  full force and effect notwithstanding any failure to endorse on each Note a notation of such  Subsidiary Guarantee.  If an Officer whose signature is on this Indenture or on the Subsidiary Guarantee no  longer holds that office at the time the Trustee authenticates the Note on which a Subsidiary  Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless.   





 






57  #95220814v17  The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall  constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the  Subsidiary Guarantors.   In the event that the Company or any of its Subsidiaries creates or acquires any Domestic  Subsidiary after the date of this Indenture, if required by Section 13.06, the Company shall cause  such Domestic Subsidiary to comply with the provisions of  Section 13.06 and this Article 13  more generally, to the extent applicable.  Section 13.04 Consolidation, Merger, Sale, Conveyance and Lease of the Subsidiary  Guarantors.  (a) Subsidiary Guarantors May Consolidate, etc., on Certain Terms.  Subject to the  provisions of Section 13.04(b), none of the Subsidiary Guarantors shall consolidate with, merge  with or into, or sell, convey, transfer or lease all or substantially all of their properties and assets  to another Person, unless:  (i) the resulting, surviving or transferee Person (the “Successor Subsidiary  Guarantor”), if not the Company or a Subsidiary Guarantor, shall be a corporation  organized and existing under the laws of the United States of America, any State thereof  or the District of Columbia, and such Successor Subsidiary Guarantor (if not the  Company or a Subsidiary Guarantor) shall expressly assume, by supplemental indenture  all of the obligations of such Subsidiary Guarantor under the relevant Subsidiary  Guarantee, the Notes and this Indenture; and   (ii) immediately after giving effect to such transaction, no Default or Event of  Default shall have occurred and be continuing under this Indenture.  For purposes of this Section 13.04(a), the sale, conveyance, transfer or lease of all or  substantially all of the properties and assets of one or more Subsidiaries of a Subsidiary  Guarantor to another Person, which properties and assets, if held by such Subsidiary Guarantor  instead of such Subsidiaries, would constitute all or substantially all of the properties and assets  of such Subsidiary Guarantor on a consolidated basis, shall be deemed to be the sale,  conveyance, transfer or lease of all or substantially all of the properties and assets of such  Subsidiary Guarantor to another Person.   (b) Successor Corporation to Be Substituted.  In case of any such consolidation,  merger, sale, conveyance, transfer or lease and upon the assumption by a Successor Subsidiary  Guarantor, by supplemental indenture, executed and delivered to the Trustee and satisfactory in  form to the Trustee, of its guarantee of the due and punctual payment of the principal of and  accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the  case may be, of any consideration due upon conversion of the Notes and the due and punctual  performance of all of the covenants and conditions of this Indenture to be performed by such  Subsidiary Guarantor, such Successor Subsidiary Guarantor (if not the Company or a Subsidiary  Guarantor) shall succeed to and, except in the case of a lease of all or substantially all of such  Subsidiary Guarantor’s properties and assets, shall be substituted for such Subsidiary Guarantor,  with the same effect as if it had been named herein as the party of the first part. In the event of  





 






58  #95220814v17  any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon  compliance with this Section 13.04 the Person named as the “Subsidiary Guarantor” in the  definition of such term in Section 1.01 (or any successor that shall thereafter have become such  in the manner prescribed in this Section 13.04) may be dissolved, wound up and liquidated at any  time thereafter and, except in the case of a lease, such Person shall be released from its liabilities  as obligor and from its obligations under this Indenture and the Notes.  In case of any such consolidation, merger, sale, conveyance, transfer or lease, such  changes in phraseology and form (but not in substance) may be made in the Notes thereafter to  be issued as may be appropriate.  (c) Opinion of Counsel to Be Given to Trustee.  No such consolidation, merger, sale,  conveyance, transfer or lease shall be effective unless the Trustee shall receive an Officer’s  Certificate and an Opinion of Counsel as conclusive evidence, and each stating, that any such  consolidation, merger, sale, conveyance, transfer or lease and any such assumption and, if a  supplemental indenture is required in connection with such transaction, such supplemental  indenture, complies with the provisions of this Section 13.04.  Section 13.05 Releases.  (a) The Subsidiary Guarantee of a Subsidiary Guarantor shall be  unconditionally and automatically released:  (i) in connection with any sale or other disposition of all or substantially all  of the assets of that Subsidiary Guarantor (including by way of merger, consolidation or  LLC Division) to a Person that is not (either before or after giving effect to such  transaction) a Subsidiary of the Company if the sale or other disposition does not violate   Section 13.04;  (ii) in connection with any sale or other disposition of the Capital Stock of  that Subsidiary Guarantor following which the applicable Subsidiary Guarantor is no  longer a Subsidiary of the Company to a Person that is not (either before or after giving  effect to such transaction) a Subsidiary of the Company if the sale or other disposition  does not violate Section 13.04;  (iii) in connection with the release of such Subsidiary Guarantor from all  guarantee obligations of such Subsidiary Guarantor with respect to any Credit Facility  that gave rise to the obligation to provide such Subsidiary Guarantee; or  (iv) upon satisfaction and discharge of this Indenture in accordance with  Article 3 hereof; and  (b) upon the Company delivering to the Trustee an Officer’s Certificate and an  Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture  relating to such transaction have been complied with. Upon request, the Trustee shall execute an  instrument evidencing the release of such Subsidiary Guarantor (in form and substance  reasonably satisfactory to the Trustee).  





 






59  #95220814v17  Any Subsidiary Guarantor not released from its obligations under its Subsidiary  Guarantee as provided in this Section 13.05 shall remain liable for the full amount of principal  (including the Fundamental Change Repurchase Price or the Redemption Price, if applicable) of  and interest and premium, if any, on the Notes, the full amount of consideration due upon  Conversion of the Notes and for the other obligations of any Subsidiary Guarantor under this  Indenture as provided in this Article 13.  Section 13.06 Additional Note Guarantees.  The Company shall cause each Subsidiary of  the Company that guarantees borrowings of the Company under any Credit Facility to become a  Subsidiary Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel  within 30 days of the date on which it became a guarantor of borrowings of the Company under  such Credit Facility. The form of such supplemental indenture is attached as Exhibit B hereto.   ARTICLE 14  CONVERSION OF NOTES  Section 14.01 Conversion Privilege.  (a) Subject to and upon compliance with the  provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option,  to convert all or any portion (if the portion to be converted is $1,000 principal amount or an  integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in  Section 14.01(b), at any time prior to the close of business on the Business Day immediately  preceding June 1, 2028 under the circumstances and during the periods set forth in Section  14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after June 1,  2028 and prior to the close of business on the second Scheduled Trading Day immediately  preceding the Maturity Date, in each case, at an initial conversion rate of 9.9887 shares of  Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”)  per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement  provisions of Section 14.02, the “Conversion Obligation”).  (b) (i) Prior to the close of business on the Business Day immediately preceding June  1, 2028, a Holder may surrender all or any portion of its Notes for conversion at any time during  the five Business Day period immediately after any ten consecutive Trading Day period (the  “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as  determined following a request by a Holder of Notes in accordance with this subsection (b)(i),  for each Trading Day of the Measurement Period was less than 98% of the product of the Last  Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate  on each such Trading Day.  The Trading Prices shall be determined by the Bid Solicitation Agent  pursuant to this subsection (b)(i) and the definition of Trading Price set forth in this Indenture.   The Company shall provide written notice to the Bid Solicitation Agent (if other than the  Company) of the three independent nationally recognized securities dealers selected by the  Company pursuant to the definition of Trading Price, along with appropriate contact information  for each.  The Bid Solicitation Agent (if other than the Company) shall have no obligation to  determine the Trading Price per $1,000 principal amount of Notes unless the Company has  requested such determination, and the Company shall have no obligation to make such request  (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to  determine the Trading Price per $1,000 principal amount of Notes) unless Holders of at least  





 






60  #95220814v17  $5,000,000 principal amount of Notes provide the Company with a written request and  reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading  Day would be less than 98% of the product of the Last Reported Sale Price of the Common  Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the  Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine, or if  the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price  per $1,000 principal amount of Notes (in accordance with the procedures described above)  beginning on the next Trading Day and on each successive Trading Day until the Trading Price  per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last  Reported Sale Price of the Common Stock and the Conversion Rate.  If (x) the Company is not  acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to  determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in  the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and  the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid  Solicitation Agent and the Company fails to make such determination when obligated as  provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal  amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale  Price of the Common Stock and the Conversion Rate on each Trading Day of such failure.  If the  Trading Price condition set forth above has been met, the Company shall so notify the Holders,  the Trustee and the Conversion Agent (if other than the Trustee) in writing.  Any such  determination shall be conclusive absent manifest error.  If, at any time after the Trading Price  condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes  is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common  Stock and the Conversion Rate for such date, the Company shall so notify the Holders of the  Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing.  The  Company may replace the Bid Solicitation Agent with any Person (other than the Company) by  notice to the Trustee and the Holders.  (ii) If, prior to the close of business on the Business Day immediately  preceding June 1, 2028, the Company elects to:  (A) issue to all or substantially all holders of the Common Stock any  rights, options or warrants (other than in connection with a stockholder rights  plan prior to the separation of such rights from the Common Stock) entitling  them, for a period of not more than 45 calendar days after the announcement date  of such issuance, to subscribe for or purchase shares of the Common Stock at a  price per share that is less than the average of the Last Reported Sale Prices of  the Common Stock for the 10 consecutive Trading Day period ending on, and  including, the Trading Day immediately preceding the date of announcement of  such issuance; or  (B) distribute to all or substantially all holders of the Common Stock  the Company’s assets, securities or rights to purchase securities of the Company  (other than in connection with a stockholder rights plan prior to the separation of  such rights from the Common Stock), which distribution has a per share value, as  reasonably determined by the Board of Directors, exceeding 10% of the Last  





 






61  #95220814v17  Reported Sale Price of the Common Stock on the Trading Day preceding the date  of announcement for such distribution,  then, in either case, the Company shall notify all Holders of the Notes, the Trustee and the  Conversion Agent (if other than the Trustee) at least 45 Scheduled Trading Days prior to the Ex- Dividend Date for such issuance or distribution (or, if later in the case of any such separation of  rights issued pursuant to a stockholder rights plan, as soon as reasonably practicable after the  Company becomes aware that such separation or relevant triggering event has occurred or will  occur). Once the Company has given such notice, a Holder may surrender all or any portion of  its Notes for conversion at any time until the earlier of (1) the close of business on the Business  Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the  Company’s announcement that such issuance or distribution will not take place, in each case,  even if the Notes are not otherwise convertible at such time.  A Holder of the Notes may not  exercise its conversion right under this Section 14.01(b)(ii) if such Holder participates, at the  same time and upon the same terms as holders of the Common Stock and solely as a result of  holding the Notes, in any such issuance or distribution without having to convert its Notes as if  such Holder held a number of shares of Common Stock equal to the Conversion Rate, multiplied  by the principal amount (expressed in thousands) of Notes held by such Holder.  (iii) If a transaction or event that constitutes a Fundamental Change or a Make- Whole Fundamental Change occurs prior to the close of business on the Business Day  immediately preceding June 1, 2028, regardless of whether a Holder has the right to  require the Company to repurchase the Notes pursuant to Section 15.02, or if the  Company is a party to a consolidation, merger, binding share exchange, or transfer or  lease of all or substantially all of its assets (other than a transaction that is solely for the  purpose of changing the Company’s jurisdiction of organization that (1) does not  constitute a Fundamental Change or a Make-Whole Fundamental Change and (2) results  in a reclassification, conversion or exchange of outstanding shares of the Common Stock  solely into shares of common stock of the surviving entity and such common stock  becomes Reference Property for the Notes) that occurs prior to the close of business on  the Business Day immediately preceding June 1, 2028, in each case, pursuant to which  the Common Stock would be converted into cash, securities or other assets, all or any  portion of a Holder’s Notes may be surrendered for conversion at any time from or after  the effective date of such transaction until the earlier of (i) 35 Trading Days after the  actual effective date of such transaction (or, if the Company gives notice after the actual  effective date of such transaction, 35 Trading Days after the date the Company gives  notice of such transaction) or, if such transaction also constitutes a Fundamental Change,  until the related Fundamental Change Repurchase Date or (ii) the close of business on the  second Scheduled Trading Day immediately preceding the Maturity Date. The Company  shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) as  promptly as practicable but in any event no later than two Business Days after the  effective date of such transaction.  (iv) Prior to the close of business on the Business Day immediately preceding  June 1, 2028, a Holder may surrender all or any portion of its Notes for conversion at any  time during any calendar quarter commencing after the calendar quarter ending on March  31, 2022 (and only during such calendar quarter), if the Last Reported Sale Price of the  





 






62  #95220814v17  Common Stock for at least 20 Trading Days (whether or not consecutive) during the  period of 30 consecutive Trading Days ending on, and including, the last Trading Day of  the immediately preceding calendar quarter is greater than or equal to 130% of the  Conversion Price on each applicable Trading Day.  The Company shall determine at the  beginning of each calendar quarter commencing after March 31, 2022 whether the Notes  may be surrendered for conversion in accordance with this clause (iv) and shall notify the  Holders, the Trustee and the Conversion Agent (if other than the Trustee) if the Notes  become convertible in accordance with this clause (iv).  (v) If the Company calls any or all of the Notes for redemption pursuant to  Article 16, then a Holder may surrender all or any portion of its Notes for conversion at  any time prior to the close of business on the Scheduled Trading Day prior to the  Redemption Date, even if the Notes are not otherwise convertible at such time.  After that  time, the right to convert shall expire, unless the Company defaults in the payment of the  Redemption Price, in which case a Holder of Notes may convert its Notes until the  Redemption Price has been paid or duly provided for.  Section 14.02 Conversion Procedure; Settlement Upon Conversion.    (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon  conversion of any Note, the Company shall pay and, if applicable, deliver, as the case may be, to  the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a  “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 40  Trading Days during the relevant Observation Period, together with cash, if applicable, in lieu of  delivering any fractional share of Common Stock in accordance with subsection (j) of this  Section 14.02.    (i) All conversions for which the relevant Conversion Date occurs after the  Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the  related Redemption Date, and all conversions for which the relevant Conversion Date  occurs on or after June 1, 2028, shall be settled using the same Cash Percentage.  Except  for any conversions for which the relevant Conversion Date occurs after the Company’s  issuance of a Notice of Redemption with respect to the Notes but prior to the related  Redemption Date and any conversions for which the relevant Conversion Date occurs on  or after June 1, 2028, the Company shall use the same Cash Percentage for all  conversions with the same Conversion Date, but the Company shall not have any  obligation to use the same Cash Percentage with respect to conversions with different  Conversion Dates.  If, in respect of any Conversion Date (or one of the periods described  in the third immediately succeeding set of parentheses, as the case may be), the Company  elects to settle all or a portion of its Conversion Obligation in excess of the principal  amount of the Notes being converted in cash in respect of such Conversion Date (or such  period, as the case may be), the Company shall inform converting Holders through the  Trustee of such election (the “Settlement Notice”) no later than the close of business on  the Trading Day immediately following the related Conversion Date (or, in the case of  any conversions for which the relevant Conversion Date occurs (i) after the date of  issuance of a Notice of Redemption with respect to the Notes and prior to the related  Redemption Date, in such Notice of Redemption or (ii) on or after June 1, 2028, no later  





 






63  #95220814v17  than June 1, 2028) and the Company shall indicate in such Settlement Notice the  percentage of the consideration due upon conversion in excess of the principal portion of  the Notes being converted that will be paid in cash (the “Cash Percentage”).  If the  Company does not elect a Cash Percentage prior to the deadline set forth in the  immediately preceding sentence, the Company shall no longer have the right to elect a  Cash Percentage, the Company shall be deemed to have elected a Cash Percentage of 0%  and the Company shall settle its Conversion Obligation by paying cash in respect of the  principal portion of the converted Notes and delivering shares of Common Stock in  respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate  principal portion of the Notes being converted as set forth herein (subject to Section  14.02(j)).  (ii) For any conversion of Notes, the Daily Settlement Amounts, the Daily Net  Settlement Amounts, the Daily Conversion Values and the Settlement Amount shall be  determined by the Company promptly following the last day of the relevant Observation  Period.  Promptly after such determination of the Daily Settlement Amounts, the Daily  Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, as the  case may be, and the amount of cash payable in lieu of delivering any fractional share of  Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other  than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts,  the Daily Conversion Values and the Settlement Amount, as the case may be, and the  amount of cash payable in lieu of delivering fractional shares of Common Stock.  The  Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility  for any such determination.  (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert  a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the  procedures of the Depositary in effect at that time and, if required, pay funds equal to interest  payable on the next Interest Payment Date to which such Holder is not entitled as set forth in  Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver  an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion  (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the  office of the Conversion Agent and state in writing therein the principal amount of Notes to be  converted and the name or names (with addresses) in which such Holder wishes the certificate or  certificates for any shares of Common Stock to be delivered upon settlement of the Conversion  Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank  (and accompanied by appropriate endorsement and transfer documents), at the office of the  Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and  (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which  such Holder is not entitled as set forth in Section 14.02(h).  The Trustee (and if different, the  Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the  Conversion Date for such conversion.  No Notice of Conversion with respect to any Notes may  be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change  Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such  Fundamental Change Repurchase Notice in accordance with Section 15.03.  





 






64  #95220814v17  If more than one Note shall be surrendered for conversion at one time by the same  Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of  the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted  thereby) so surrendered.  (c) A Note shall be deemed to have been converted immediately prior to the close of  business on the date (the “Conversion Date”) that the Holder has complied with the  requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and  Section 14.07(a), the Company shall pay and deliver, as the case may be, the consideration due  in respect of the Conversion Obligation on the second Business Day immediately following the  last Trading Day of the relevant Observation Period.  If any shares of Common Stock are due to  a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to  the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number  of shares of Common Stock to which such Holder shall be entitled, in book-entry format through  the Depositary, in satisfaction of the Company’s Conversion Obligation.  (d) In case any Note shall be surrendered for partial conversion, the Company shall  execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder  of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate  principal amount equal to the unconverted portion of the surrendered Note, without payment of  any service charge by the converting Holder but, if required by the Company or Trustee, with  payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or  similar governmental charge required by law or that may be imposed in connection therewith as  a result of the name of the Holder of the new Notes issued upon such conversion being different  from the name of the Holder of the old Notes surrendered for such conversion.  (e) If a Holder submits a Note for conversion, the Company shall pay any  documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common  Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued  in a name other than the Holder’s name, in which case the Holder shall pay that tax.  The  Conversion Agent may refuse to deliver the certificates representing the shares of Common  Stock being issued in a name other than the Holder’s name until the Trustee receives a sum  sufficient to pay any tax that is due by such Holder in accordance with the immediately  preceding sentence.    (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on  any shares of Common Stock issued upon the conversion of any Note as provided in this Article  14.  (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian  at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in  the principal amount represented thereby.  The Company shall notify the Trustee in writing of  any conversion of Notes effected through any Conversion Agent other than the Trustee.  (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued  and unpaid interest, if any, except as set forth below.  The Company’s settlement of the full  Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal  





 






65  #95220814v17  amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant  Conversion Date.  As a result, accrued and unpaid interest, if any, to, but not including, the  relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished  or forfeited.  Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid  first out of the cash paid upon such conversion.  Notwithstanding the foregoing, if Notes are  converted after the close of business on a Regular Record Date, Holders of such Notes as of the  close of business on such Regular Record Date will receive the full amount of interest payable on  such Notes on the corresponding Interest Payment Date notwithstanding the conversion.  Notes  surrendered for conversion during the period from the close of business on any Regular Record  Date to the open of business on the immediately following Interest Payment Date must be  accompanied by funds equal to the amount of interest payable on the Notes so converted;  provided that no such payment shall be required (1) for conversions following the Regular  Record Date immediately preceding the Maturity Date; (2) if the Company has specified a  Redemption Date that is after a Regular Record Date and on or prior to the Business Day  immediately following the corresponding Interest Payment Date; (3) if the Company has  specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or  prior to the Business Day immediately following the corresponding Interest Payment Date; or (4)  to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of  conversion with respect to such Note.  Therefore, for the avoidance of doubt, all Holders of  record on the Regular Record Date immediately preceding the Maturity Date shall receive the  full interest payment due on the Maturity Date in cash regardless of whether their Notes have  been converted following such Regular Record Date.  (i) The Person in whose name the shares of Common Stock shall be issuable upon  conversion shall be treated as a stockholder of record as of the close of business on the last  Trading Day of the related Observation Period.  Upon a conversion of Notes, such Person shall  no longer be a Holder of such Notes surrendered for conversion.  (j) The Company shall not issue any fractional share of Common Stock upon  conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of  Common Stock issuable upon conversion based on the Daily VWAP for the last Trading Day of  the relevant Observation Period.  For each Note surrendered for conversion, the full number of  shares that shall be issued upon conversion thereof shall be computed on the basis of the  aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional  shares remaining after such computation shall be paid in cash.    Section 14.03 Increased Conversion Rate Applicable to Certain Notes Surrendered in  Connection with Make-Whole Fundamental Changes or a Notice of Redemption.  (a) If (x) the  Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (y)  the Company gives a Notice of Redemption with respect to any or all of the Notes in accordance  with Section 16.02 and, in each case, a Holder elects to convert its Notes in connection with such  Make-Whole Fundamental Change or Notice of Redemption, as the case may be, the Company  shall, under the circumstances described below, increase the Conversion Rate for the Notes so  surrendered for conversion by a number of additional shares of Common Stock (the “Additional  Shares”), as described below.  A conversion of Notes shall be deemed for these purposes to be  “in connection with” such Make-Whole Fundamental Change if the relevant Notice of  Conversion is received by the Conversion Agent during the related Make-Whole Fundamental  





 






66  #95220814v17  Change Period.  A conversion of Notes shall be deemed for these purposes to be “in connection  with” a Notice of Redemption if the relevant Conversion Date occurs during the period from, and  including, the date of the Notice of Redemption with respect to such Notes until the close of  business on the Scheduled Trading Day immediately preceding the Redemption Date.   (b) Upon surrender of Notes for conversion in connection with a Make-Whole  Fundamental Change or Notice of Redemption, the Company shall satisfy the related Conversion  Obligation in accordance with Section 14.02 based on the Conversion Rate as increased to reflect  the Additional Shares pursuant to the table set forth in Section 14.03(e) below; provided,  however, that if, at the effective time of a Make-Whole Fundamental Change described in clause  (b) of the definition of Fundamental Change, the Reference Property following such Make- Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following  the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall  be calculated based solely on the Stock Price for the transaction and shall be deemed to be an  amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate  (including any adjustment for Additional Shares), multiplied by such Stock Price.  In such event,  the Conversion Obligation will be determined and paid to Holders in cash on the second  Business Day following the Conversion Date.  The Company shall notify the Holders of Notes of  the Effective Date of any Make-Whole Fundamental Change and issue a press release  announcing such Effective Date no later than five Business Days after such Effective Date. If a  conversion of Notes “in connection with” a Notice of Redemption shall also be deemed to be a  conversion “in connection with” a Make-Whole Fundamental Change, a Holder of any such  Notes to be converted shall be entitled to a single increase to the Conversion Rate with respect to  the first to occur of the Effective Date of the Notice of Redemption or the Effective Date of the  Make-Whole Fundamental Change, as applicable, and the later event shall be deemed not to have  occurred.  (c) The number of Additional Shares, if any, by which the Conversion Rate shall be  increased for conversions “in connection with” a Make-Whole Fundamental Change or a Notice  of Redemption shall be determined by reference to the table below, based on the date on which  the Make-Whole Fundamental Change occurs or becomes effective or the date of the Notice of  Redemption, as the case may be, (in each case, the “Effective Date”) and the price (the “Stock  Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole  Fundamental Change or with respect to the Optional Redemption, as the case may be.  If the  holders of the Common Stock receive in exchange for their Common Stock only cash in a Make- Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the  Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the  average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period  ending on, and including, the Trading Day immediately preceding the Effective Date of the  Make-Whole Fundamental Change or the date of the Notice of Redemption, as the case may be.   The Board of Directors shall make appropriate adjustments to the Stock Price, in its good faith  determination, to account for any adjustment to the Conversion Rate that becomes effective, or  any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective  Date (as such term is used in Section 14.04) or expiration date of the event occurs during such  five consecutive Trading Day period.  





 






67  #95220814v17  (d) The Stock Prices set forth in the column headings of the table below shall be  adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted.  The  adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such  adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately  prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which  is the Conversion Rate as so adjusted.  The number of Additional Shares set forth in the table  below shall be adjusted in the same manner and at the same time as the Conversion Rate as set  forth in Section 14.04.  (e) The following table sets forth the number of Additional Shares of Common Stock  by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant  to this Section 14.03 for each Stock Price and Effective Date set forth below:   Stock Price  Effective Date $77.01 $80.00 $85.00 $95.00 $100.11 $115.00 $130.15 $140.00 $150.00 $160.00 $175.00 $200.00 $250.00 $325.00  December 13, 2021 2.9966 2.7436 2.3752 1.7985 1.5674 1.0641 0.7283 0.5719 0.4483 0.3515 0.2431 0.1278 0.0258 0.0000  December 1, 2022 2.9966 2.7053 2.3284 1.7418 1.5081 1.0040 0.6729 0.5209 0.4022 0.3103 0.2089 0.1041 0.0171 0.0000  December 1, 2023 2.9966 2.7053 2.3154 1.7077 1.4675 0.9545 0.6238 0.4747 0.3598 0.2722 0.1774 0.0826 0.0097 0.0000  December 1, 2024 2.9966 2.7053 2.3044 1.6678 1.4185 0.8938 0.5642 0.4191 0.3096 0.2278 0.1418 0.0596 0.0036 0.0000  December 1, 2025 2.9966 2.7040 2.2626 1.5919 1.3330 0.7997 0.4778 0.3416 0.2421 0.1703 0.0980 0.0342 0.0001 0.0000  December 1, 2026 2.9966 2.6498 2.1715 1.4564 1.1868 0.6521 0.3527 0.2349 0.1540 0.0993 0.0486 0.0105 0.0000 0.0000  December 1, 2027 2.9966 2.5450 2.0001 1.2072 0.9230 0.4101 0.1738 0.0972 0.0521 0.0261 0.0069 0.0000 0.0000 0.0000  December 1, 2028 2.9966 2.5113 1.7760 0.5376 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000    The exact Stock Price and Effective Date may not be set forth in the table above, in  which case:  (i) if the Stock Price is between two Stock Prices in the table above or the  Effective Date is between two Effective Dates in the table, the number of Additional  Shares shall be determined by a straight-line interpolation between the number of  Additional Shares set forth for the higher and lower Stock Prices and the earlier and later  Effective Dates, as applicable, based on a 365-day year;  (ii) if the Stock Price is greater than $325.00 per share (subject to adjustment  in the same manner as the Stock Prices set forth in the column headings of the table  above pursuant to subsection (d) above), no Additional Shares shall be added to the  Conversion Rate; and   (iii) if the Stock Price is less than $77.01 per share (subject to adjustment in  the same manner as the Stock Prices set forth in the column headings of the table above  pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion  Rate.  Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal  amount of Notes exceed 12.9853 shares of Common Stock, subject to adjustment in the same  manner as the Conversion Rate pursuant to Section 14.04 (the “Maximum Conversion Rate”).  





 






68  #95220814v17  (f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate  pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.  Section 14.04 Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted  from time to time by the Company if any of the following events occurs, except that the  Company shall not make any adjustments to the Conversion Rate if Holders of the Notes  participate (other than in the case of (x) a share split or share combination or (y) a tender or  exchange offer), at the same time and upon the same terms as holders of the Common Stock and  solely as a result of holding the Notes, in any of the transactions described in this Section 14.04,  without having to convert their Notes, as if they held a number of shares of Common Stock equal  to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes  held by such Holder.  (a) If the Company exclusively issues shares of Common Stock as a dividend or  distribution on shares of the Common Stock, or if the Company effects a share split or share  combination, the Conversion Rate shall be adjusted based on the following formula:  0 0 OS OS'CRCR' ×=   where,  CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date of such dividend or distribution, or immediately prior to the open of  business on the Effective Date of such share split or share combination, as  applicable;  CR' = the Conversion Rate in effect immediately after the open of business on such Ex- Dividend Date or Effective Date;  OS0 = the number of shares of Common Stock outstanding immediately prior to the open  of business on such Ex-Dividend Date or Effective Date (before giving effect to  any such dividend, distribution, split or combination); and  OS' = the number of shares of Common Stock outstanding immediately after giving  effect to such dividend, distribution, share split or share combination.  Any adjustment made under this Section 14.04(a) shall become effective immediately after the  open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after  the open of business on the Effective Date for such share split or share combination, as  applicable.  If any dividend or distribution of the type described in this Section 14.04(a) is  declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective  as of the date the Board of Directors determines not to pay such dividend or distribution, to the  Conversion Rate that would then be in effect if such dividend or distribution had not been  declared.  





 






69  #95220814v17  (b) If the Company issues to all or substantially all holders of the Common Stock any  rights, options or warrants (other than pursuant to a stockholder rights plan) entitling them, for a  period of not more than 45 calendar days after the announcement date of such issuance, to  subscribe for or purchase shares of the Common Stock at a price per share that is less than the  average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading  Day period ending on, and including, the Trading Day immediately preceding the date of  announcement of such issuance, the Conversion Rate shall be increased based on the following  formula:  YOS XOSCRCR' 0 0 0 + + ×=   where,  CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date for such issuance;  CR' = the Conversion Rate in effect immediately after the open of business on such Ex- Dividend Date;  OS0 = the number of shares of Common Stock outstanding immediately prior to the open  of business on such Ex-Dividend Date;  X = the total number of shares of Common Stock issuable pursuant to such rights,  options or warrants; and  Y = the number of shares of Common Stock equal to the aggregate price payable to  exercise such rights, options or warrants, divided by the average of the Last  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day  period ending on, and including, the Trading Day immediately preceding the date  of announcement of the issuance of such rights, options or warrants.  Any increase made under this Section 14.04(b) shall be made successively whenever any such  rights, options or warrants are issued and shall become effective immediately after the open of  business on the Ex-Dividend Date for such issuance.  To the extent that shares of the Common  Stock are not delivered after the expiration of such rights, options or warrants, the Conversion  Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with  respect to the issuance of such rights, options or warrants been made on the basis of delivery of  only the number of shares of Common Stock actually delivered.  If such rights, options or  warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that  would then be in effect if such Ex-Dividend Date for such issuance had not occurred.  For purposes of this Section 14.04(b) and for the purpose of Section 14.01(b)(ii)(A), in  determining whether any rights, options or warrants entitle the holders to subscribe for or  purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices  of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the  Trading Day immediately preceding the date of announcement for such issuance, and in  





 






70  #95220814v17  determining the aggregate offering price of such shares of Common Stock, there shall be taken  into account any consideration received by the Company for such rights, options or warrants and  any amount payable on exercise or conversion thereof, the value of such consideration, if other  than cash, to be determined by the Board of Directors.    (c) If the Company distributes shares of its Capital Stock, evidences of its  indebtedness, other assets or property of the Company or rights, options or warrants to acquire its  Capital Stock or other securities, to all or substantially all holders of the Common Stock,  excluding (i) dividends, distributions or issuances as to which an adjustment was effected  pursuant to Section 14.04(a) or Section 14.04(b), (ii) dividends or distributions paid exclusively  in cash as to which the provisions set forth in Section 14.04(d) shall apply, and (iii) Spin-Offs as  to which the provisions set forth below in this Section 14.04(c) shall apply (any of such shares of  Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants  to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion  Rate shall be increased based on the following formula:  FMVSP SPCRCR' 0 0 0 − ×=   where,  CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date for such distribution;  CR' = the Conversion Rate in effect immediately after the open of business on such Ex- Dividend Date;  SP0 = the average of the Last Reported Sale Prices of the Common Stock over the 10  consecutive Trading Day period ending on, and including, the Trading Day  immediately preceding the Ex-Dividend Date for such distribution; and  FMV = the fair market value (as determined by the Board of Directors) of the Distributed  Property with respect to each outstanding share of the Common Stock on the Ex- Dividend Date for such distribution.  Any increase made under the portion of this Section 14.04(c) above shall become effective  immediately after the open of business on the Ex-Dividend Date for such distribution.  If such  distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion  Rate that would then be in effect if such distribution had not been declared.  Notwithstanding the  foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in  lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000  principal amount thereof, at the same time and upon the same terms as holders of the Common  Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder  would have received if such Holder owned a number of shares of Common Stock equal to the  Conversion Rate in effect on the Ex-Dividend Date for the distribution.  If the Board of Directors  determines the “FMV” (as defined above) of any distribution for purposes of this Section  14.04(c) by reference to the actual or when-issued trading market for any securities, it shall in  





 






71  #95220814v17  doing so consider the prices in such market over the same period used in computing the Last  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending  on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such  distribution.    With respect to an adjustment pursuant to this Section 14.04(c) where there has been a  payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of  any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit  of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S.  national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the  following formula:  0 00 0 MP MPFMVCRCR' + ×=   where,  CR0 = the Conversion Rate in effect immediately prior to the end of the Valuation Period;  CR' = the Conversion Rate in effect immediately after the end of the Valuation Period;  FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity  interest distributed to holders of the Common Stock applicable to one share of the  Common Stock (determined by reference to the definition of Last Reported Sale  Price as set forth in Section 1.01 as if references therein to Common Stock were to  such Capital Stock or similar equity interest) over the first 10 consecutive Trading  Day period after, and including, the Ex-Dividend Date of the Spin-Off (the  “Valuation Period”); and  MP0 = the average of the Last Reported Sale Prices of the Common Stock over the  Valuation Period.  The increase to the Conversion Rate under the preceding paragraph shall occur at the  close of business on the last Trading Day of the Valuation Period; provided that for any Trading  Day that falls within the relevant Observation Period for such conversion and within the  Valuation Period, the references to “10” in the preceding paragraph shall be deemed to be  replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex- Dividend Date of such Spin-Off to, and including, such Trading Day in determining the  Conversion Rate as of such Trading Day.  For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights,  options or warrants distributed by the Company to all holders of the Common Stock entitling  them to subscribe for or purchase shares of the Company’s Capital Stock, including Common  Stock (either initially or under certain circumstances), which rights, options or warrants, until the  occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred  with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in  respect of future issuances of the Common Stock, shall be deemed not to have been distributed  





 






72  #95220814v17  for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this  Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon  such rights, options or warrants shall be deemed to have been distributed and an appropriate  adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.04(c).   If any such right, option or warrant, including any such existing rights, options or warrants  distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which  such rights, options or warrants become exercisable to purchase different securities, evidences of  indebtedness or other assets, then the date of the occurrence of any and each such event shall be  deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options  or warrants with such rights (in which case the existing rights, options or warrants shall be  deemed to terminate and expire on such date without exercise by any of the holders thereof).  In  addition, in the event of any distribution (or deemed distribution) of rights, options or warrants,  or any Trigger Event or other event (of the type described in the immediately preceding  sentence) with respect thereto that was counted for purposes of calculating a distribution amount  for which an adjustment to the Conversion Rate under this Section 14.04(c) was made, (1) in the  case of any such rights, options or warrants that shall all have been redeemed or purchased  without exercise by any holders thereof, upon such final redemption or purchase (x) the  Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and  (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed  distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to  the per share redemption or purchase price received by a holder or holders of Common Stock  with respect to such rights, options or warrants (assuming such holder had retained such rights,  options or warrants), made to all holders of Common Stock as of the date of such redemption or  purchase, and (2) in the case of such rights, options or warrants that shall have expired or been  terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if  such rights, options and warrants had not been issued.  For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any  dividend or distribution to which this Section 14.04(c) is applicable also includes one or both of:   (A) a dividend or distribution of shares of Common Stock to which Section 14.04(a)  is applicable (the “Clause A Distribution”); or  (B) a dividend or distribution of rights, options or warrants to which Section 14.04(b)  is applicable (the “Clause B Distribution”),  then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and  the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section  14.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment  required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made,  and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately  follow the Clause C Distribution and any Conversion Rate adjustment required by Section  14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined  by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B  Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II)  any shares of Common Stock included in the Clause A Distribution or Clause B Distribution  shall be deemed not to be “outstanding immediately prior to the open of business on such Ex- 





 






73  #95220814v17  Dividend Date or Effective Date” within the meaning of Section 14.04(a) or “outstanding  immediately prior to the open of business on such Ex-Dividend Date” within the meaning of  Section 14.04(b).  (d) If any cash dividend or distribution is made to all or substantially all holders of the  Common Stock, other than a regular, quarterly cash dividend that does not exceed $0.33 per  share (the “Initial Dividend Threshold”) the Conversion Rate shall be adjusted based on the  following formula:    where,  CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex- Dividend Date for such dividend or distribution;  CR' = the Conversion Rate in effect immediately after the open of business on the Ex- Dividend Date for such dividend or distribution;  SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day  immediately preceding the Ex-Dividend Date for such dividend or distribution;   T   = the Initial Dividend Threshold; provided that if the dividend or distribution is not a  regular quarterly cash dividend, the Initial Dividend Threshold will be deemed to  be zero; and  C = the amount in cash per share the Company distributes to all or substantially all  holders of the Common Stock.  The Initial Dividend Threshold shall be subject to adjustment in a manner inversely proportional  to adjustments to the Conversion Rate; provided that no adjustment shall be made to the Initial  Dividend Threshold for any adjustment to the Conversion Rate pursuant to this clause (d).  Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open  of business on the Ex-Dividend Date for such dividend or distribution.  If such dividend or  distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the  Board of Directors determines not to make or pay such dividend or distribution, to be the  Conversion Rate that would then be in effect if such dividend or distribution had not been  declared.  Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than  “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive,  for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders  of shares of the Common Stock, the amount of cash that such Holder would have received if  such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the  Ex-Dividend Date for such cash dividend or distribution.    (e) If the Company or any of its Subsidiaries make a payment in respect of a tender or  exchange offer for the Common Stock that is subject to then-applicable tender offer rules under  CCCC1 = CCCC0 xx   SSSS0 ― TT   SSSS0 ― CC      





 






74  #95220814v17  the Exchange Act (other than any odd-lot tender offer), to the extent that the cash and value of  any other consideration included in the payment per share of the Common Stock exceeds the  average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading  Day period commencing on, and including, the Trading Day next succeeding the last date on  which tenders or exchanges may be made pursuant to such tender or exchange offer, the  Conversion Rate shall be increased based on the following formula:  ( ) SP'OS OS'SP'  ACCRCR' 0 0 × ×+ ×=   where,  CR0 = the Conversion Rate in effect immediately prior to the close of business on the 10th  Trading Day immediately following, and including, the Trading Day next  succeeding the date such tender or exchange offer expires;  CR' = the Conversion Rate in effect immediately after the close of business on the 10th  Trading Day immediately following, and including, the Trading Day next  succeeding the date such tender or exchange offer expires;  AC = the aggregate value of all cash and any other consideration (as determined by the  Board of Directors) paid or payable for shares of Common Stock purchased in such  tender or exchange offer;  OS0 = the number of shares of Common Stock outstanding immediately prior to the date  such tender or exchange offer expires (prior to giving effect to the purchase of all  shares of Common Stock accepted for purchase or exchange in such tender or  exchange offer);  OS' = the number of shares of Common Stock outstanding immediately after the date  such tender or exchange offer expires (after giving effect to the purchase of all  shares of Common Stock accepted for purchase or exchange in such tender or  exchange offer); and  SP' = the average of the Last Reported Sale Prices of the Common Stock over the 10  consecutive Trading Day period commencing on, and including, the Trading Day  next succeeding the date such tender or exchange offer expires.  The increase to the Conversion Rate under this Section 14.04(e) shall occur at the close  of business on the 10th Trading Day immediately following, and including, the Trading Day next  succeeding the date such tender or exchange offer expires; provided that for any Trading Day  that falls within the relevant Observation Period for such conversion and within the 10 Trading  Days immediately following, and including, the Trading Day next succeeding the expiration date  of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be  deemed replaced with such lesser number of Trading Days as have elapsed from, and including,  the Trading Day next succeeding the expiration date of such tender or exchange offer to, and  including, such Trading Day in determining the Conversion Rate as of such Trading Day.  





 






75  #95220814v17  If the Company is obligated to purchase shares of their Common Stock pursuant to any  such tender or exchange offer described in Section 14.04(e) but are permanently prevented by  applicable law from effecting any such purchase or all such purchases are rescinded, the  applicable Conversion Rate will be readjusted to be the Conversion Rate that would then be in  effect if such tender or exchange offer had not been made or had been made only in respect of  the purchases that have been made.  (f) [Reserved].   (g) Except as stated herein, the Company shall not adjust the Conversion Rate for the  issuance of shares of the Common Stock or any securities convertible into or exchangeable for  shares of the Common Stock or the right to purchase shares of the Common Stock or such  convertible or exchangeable securities.  (h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this  Section 14.04, and to the extent permitted by law and the rules of The Nasdaq Global Select  Market and any other securities exchange on which any of the Company’s securities are then  listed, the Company from time to time may increase the Conversion Rate by any amount for a  period of at least 20 Business Days if the Company determines that such increase would be in the  Company’s best interest.  In addition, to the extent permitted by applicable law and subject to the  applicable rules of The Nasdaq Global Select Market and any other securities exchange on which  any of the Company’s securities are then listed, the Company may (but is not required to)  increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock  or rights to purchase Common Stock in connection with a dividend or distribution of shares of  Common Stock (or rights to acquire shares of Common Stock) or similar event.  Whenever the  Conversion Rate is increased pursuant to either of the preceding two sentences, the Company  shall deliver to the Holder of each Note a notice of the increase at least 15 days prior to the date  the increased Conversion Rate takes effect, and such notice shall state the increased Conversion  Rate and the period during which it will be in effect.  (i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate  shall not be adjusted:  (i) upon the issuance of any shares of Common Stock at a price below the  Conversion Price, other than as described in Sections 14.04(a), (b) and (c);   (ii) upon the issuance of any shares of Common Stock pursuant to any present  or future plan providing for the reinvestment of dividends or interest payable on the  Company’s securities and the investment of additional optional amounts in shares of  Common Stock under any plan;  (iii) upon the repurchase of any shares of the Company’s Common Stock  pursuant to an open-market share repurchase program or other buy-back transaction,  including structured or derivative transactions, that is not a tender offer or exchange offer  of the kind described in Section 14.04(e);   





 






76  #95220814v17  (iv) upon the issuance of any shares of Common Stock, restricted stock units  or options or rights to purchase those shares pursuant to any present or future employee,  director or consultant benefit plan, incentive plan or program of or assumed by the  Company or any of the Company’s Subsidiaries;  (v) upon the issuance of any shares of the Common Stock pursuant to any  option, warrant, right or exercisable, exchangeable or convertible security not described  in clause (iv) of this subsection and outstanding as of the date the Notes were first issued  (other than a rights plan as described in Section 14.11);  (vi) for a third party tender offer by any party other than a tender offer by one  or more of the Subsidiaries of the Company;  (vii) solely for a change in the par value of the Common Stock or a change in  the Company’s jurisdiction of incorporation; or  (viii) for accrued and unpaid interest, if any.  (j) All calculations and other determinations under this Article 14 shall be made by the  Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a share.  If an  adjustment to the Conversion Rate otherwise required by the provisions described above would  result in a change of less than 1% to the Conversion Rate, then, notwithstanding the foregoing,  the Company may, at its election by written notice to the Holders, the Trustee and the  Conversion Agent (if other than the Trustee) promptly after the date such adjustment is otherwise  required to be made, defer and carry forward such adjustment, except that all such deferred  adjustments must be given effect immediately upon the earliest to occur of the following: (i)  when all such deferred adjustments would result in an aggregate change of at least 1% to the  Conversion Rate, (ii) the Conversion Date for any Notes (in the case of any conversion following  a replacement of the Common Stock by Reference Property solely consisting of cash), (iii) each  Trading Day of any Observation Period related to any conversion of Notes (other than as  described in clause (ii)), (iv) the effective date of any Fundamental Change or the Effective Date  of any Make-Whole Fundamental Change, (v) on the date the Company sends a Notice of  Redemption for all or any of the Notes, and (vi) June 1, 2028, in each case, unless the adjustment  has already been made.  (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall  promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s  Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief  statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of the  Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have  knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the  last Conversion Rate of which it has knowledge is still in effect.  Promptly after delivery of such  certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting  forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and  shall deliver such notice of such adjustment of the Conversion Rate to each Holder.  Failure to  deliver such notice shall not affect the legality or validity of any such adjustment.  





 






77  #95220814v17  (l) For purposes of this Section 14.04, the number of shares of Common Stock at any  time outstanding shall not include shares of Common Stock held in the treasury of the Company  so long as the Company does not pay any dividend or make any distribution on shares of  Common Stock held in the treasury of the Company, but shall include shares of Common Stock  issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.  Section 14.05 Adjustments of Prices.  Whenever any provision of this Indenture requires  the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily  Conversion Values, the Daily Net Settlement Amounts or the Daily Settlement Amounts over a  span of multiple days (including, without limitation, an Observation Period and the period for  determining the Stock Price for purposes of any conversion in connection with a Make-Whole  Fundamental Change or Notice of Redemption), the Board of Directors shall make appropriate  adjustments to each to account for any adjustment to the Conversion Rate that becomes effective,  or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date,  Effective Date or expiration date, as the case may be, of the event occurs, at any time during the  period when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values, the  Daily Net Settlement Amounts or the Daily Settlement Amounts are to be calculated.    Section 14.06 Shares to Be Fully Paid.  The Company shall provide, free from  preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient  shares of Common Stock to provide for conversion of the Notes from time to time as such Notes  are presented for conversion (assuming delivery upon conversion of the Notes of a number of  shares of Common Stock per $1,000 principal amount of Notes equal to the Maximum  Conversion Rate).  Section 14.07 Effect of Recapitalizations, Reclassifications and Changes of the Common  Stock.    (a) In the case of:  (i) any recapitalization, reclassification or change of the Common Stock  (other than changes resulting from a subdivision or combination or a change solely in par  value),   (ii) any consolidation, merger, combination or similar transaction involving  the Company,   (iii) any sale, lease or other transfer to a third party of the consolidated assets  of the Company and the Company’s Subsidiaries substantially as an entirety or   (iv) any statutory share exchange,   in each case, as a result of which the Common Stock would be converted into, or exchanged for,  stock, other securities, other property or assets (including cash or any combination thereof) (any  such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the  right to convert each $1,000 principal amount of Notes shall be changed into a right to convert  such principal amount of Notes into the kind and amount of shares of stock, other securities or  





 






78  #95220814v17  other property or assets (including cash or any combination thereof) that a holder of a number of  shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event  would have owned or been entitled to receive (the “Reference Property,” with each “unit of  Reference Property” meaning the kind and amount of Reference Property that a holder of one  share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the  effective time of such Merger Event, the Company or the successor or purchasing Person, as the  case may be, shall execute with the Trustee a supplemental indenture permitted under Section  10.01(g) providing for such change in the right to convert each $1,000 principal amount of  Notes; provided, however, that at and after the effective time of the Merger Event, the  Conversion Obligation shall be determined and conversions shall be settled in accordance with  Section 14.02 such that (A) the amount otherwise payable in cash upon conversion of the Notes  as set forth under Section 14.02 shall continue to be payable in cash, (B) the Company (or the  successor or purchasing Person, as the case may be) shall continue to have the right to determine  the form of consideration to be paid or delivered, as the case may be, in respect of the remainder,  if any, of the Conversion Obligation in excess of the principal amount of the Notes being  converted as set forth under Section 14.02, (C) the number of shares of Common Stock, if any,  otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall  instead be deliverable in the amount and type of Reference Property that a holder of that number  of shares of Common Stock would have received in such Merger Event and (D) the Daily  VWAP shall be calculated based on the value of a unit of Reference Property.  If the Merger Event causes the Common Stock to be converted into, or exchanged for, the  right to receive more than a single type of consideration (determined based in part upon any form  of stockholder election), then (i) the Reference Property into which the Notes will be convertible  shall be deemed to be the weighted average of the types and amounts of consideration actually  received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of  the immediately preceding paragraph shall refer to the consideration referred to in clause (i)  attributable to one share of Common Stock.  If the holders of the Common Stock receive only  cash in such Merger Event, then for all conversions for which the relevant Conversion Date  occurs after the effective date of such Merger Event (A) the consideration due upon conversion  of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the  Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares  pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such  Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to  converting Holders on the second Business Day immediately following the relevant Conversion  Date.  The Company shall notify Holders, the Trustee and the Conversion Agent (if other than  the Trustee) of such weighted average as soon as practicable after such determination is made.  Such supplemental indenture described in the second immediately preceding paragraph  shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is  possible to the adjustments provided for in this Article 14.  If, in the case of any Merger Event,  the Reference Property includes shares of stock, securities or other property or assets (including  cash or any combination thereof) of a Person other than the successor or purchasing corporation,  as the case may be, in such Merger Event, then such supplemental indenture shall also be  executed by such other Person and shall contain such additional provisions to protect the  interests of the Holders of the Notes as the Company shall reasonably consider necessary by  





 






79  #95220814v17  reason of the foregoing, including the provisions providing for the purchase rights set forth in  Article 15.  (b) When the Company executes a supplemental indenture pursuant to subsection (a)  of this Section 14.07, the Company shall promptly file with the Trustee an Officer’s Certificate  briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that  will comprise a unit of Reference Property after any such Merger Event, any adjustment to be  made with respect thereto and that all conditions precedent have been complied with, and shall  promptly deliver notice thereof to all Holders.  The Company shall cause notice of the execution  of such supplemental indenture to be delivered to each Holder within 20 days after execution  thereof.  Failure to deliver such notice shall not affect the legality or validity of such  supplemental indenture.  (c) The Company shall not become a party to any Merger Event unless its terms are  consistent with this Section 14.07.  None of the foregoing provisions shall affect the right of a  Holder to convert its Notes into cash and shares of Common Stock, if any, as set forth in Section  14.01 and Section 14.02 prior to the effective date of such Merger Event.  (d) The above provisions of this Section shall similarly apply to successive Merger  Events.  (e) In connection with any Merger Event, the Initial Dividend Threshold shall be  subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as the case may  be.  (i) In the case of a Merger Event in which the Reference Property  (determined, as appropriate, pursuant to subsection (a) above and excluding any  dissenters’ appraisal rights) is composed entirely of shares of common stock (the  “Merger Common Stock”), the Initial Dividend Threshold at and after the effective time  of such Merger Event will be equal to (x) the Initial Dividend Threshold immediately  prior to the effective time of such Merger Event, divided by (y) the number of shares of  Merger Common Stock that a holder of one share of Common Stock would receive in  such Merger Event (such quotient rounded down to the nearest cent).  (ii) In the case of a Merger Event in which the Reference Property  (determined, as appropriate, pursuant to subsection (a) above and excluding any  dissenters’ appraisal rights) is composed in part of shares of Merger Common Stock, the  Initial Dividend Threshold at and after the effective time of such Merger Event will be  equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such  Merger Event, multiplied by (y) the Merger Valuation Percentage for such Merger Event  (such product rounded down to the nearest cent).  (iii) For the avoidance of doubt, in the case of a Merger Event in which the  Reference Property (determined, as appropriate, pursuant to subsection (a) above and  excluding any dissenters’ appraisal rights) is composed entirely of consideration other  than shares of common stock, the Initial Dividend Threshold at and after the effective  time of such Merger Event will be equal to zero.  





 






80  #95220814v17  Section 14.08 Certain Covenants.  (a) The Company covenants that all shares of  Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the  Company and free from all taxes, liens and charges with respect to the issue thereof.  (b) The Company covenants that, if any shares of Common Stock to be provided for  the purpose of conversion of Notes hereunder require registration with or approval of any  governmental authority under any federal or state law before such shares of Common Stock may  be validly issued upon conversion, the Company will, to the extent then permitted by the rules  and interpretations of the Commission, secure such registration or approval, as the case may be.  (c) The Company further covenants that if at any time the Common Stock shall be  listed on any national securities exchange or automated quotation system the Company will list  and keep listed, so long as the Common Stock shall be so listed on such exchange or automated  quotation system, any Common Stock issuable upon conversion of the Notes.  Section 14.09 Responsibility of Trustee.  The Trustee and any other Conversion Agent  shall not at any time be under any duty or responsibility to any Holder to determine the  Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any  adjustment (including any increase) of the Conversion Rate, or with respect to the nature or  extent or calculation of any such adjustment when made, or with respect to the method  employed, or herein or in any supplemental indenture provided to be employed, in making the  same.  The Trustee and any other Conversion Agent shall not be accountable with respect to the  validity or value (or the kind or amount) of any shares of Common Stock, or of any securities,  property or cash that may at any time be issued or delivered upon the conversion of any Note;  and the Trustee and any other Conversion Agent make no representations with respect thereto.   Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the  Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other  securities or property or cash upon the surrender of any Note for the purpose of conversion or to  comply with any of the duties, responsibilities or covenants of the Company contained in this  Article.  Without limiting the generality of the foregoing, neither the Trustee nor any Conversion  Agent shall be under any responsibility to determine the correctness of any provisions contained  in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or  amount of shares of stock or securities or property (including cash) receivable by Holders upon  the conversion of their Notes after any event referred to in such Section 14.07 or to any  adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may  accept (without any independent investigation) as conclusive evidence of the correctness of any  such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the  Company shall be obligated to file with the Trustee prior to the execution of any such  supplemental indenture) with respect thereto.  Neither the Trustee nor the Conversion Agent  shall be responsible for determining whether any event contemplated by Section 14.01(b) has  occurred that makes the Notes eligible for conversion or no longer eligible therefor until the  Company has delivered to the Trustee and the Conversion Agent the notices referred to in  Section 14.01(b) with respect to the commencement or termination of such conversion rights, on  which notices the Trustee and the Conversion Agent may conclusively rely, and the Company  agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the  occurrence of any such event or at such other times as shall be provided for in Section 14.01(b).  





 






81  #95220814v17  Section 14.10 Notice to Holders Prior to Certain Actions.  In case of any:    (a) action by the Company or one of its Subsidiaries that would require an adjustment  in the Conversion Rate pursuant to Section 14.04 or Section 14.11;  (b) Merger Event; or  (c) voluntary or involuntary dissolution, liquidation or winding-up of the Company or  any of its Subsidiaries;  then, in each case (unless notice of such event is otherwise required pursuant to another  provision of this Indenture), the Company shall cause to be filed with the Trustee and the  Conversion Agent (if other than the Trustee) and to be delivered to each Holder, as promptly as  possible but in any event at least 20 days prior to the applicable date hereinafter specified, a  notice stating (i) the date on which a record is to be taken for the purpose of such action by the  Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the  holders of Common Stock of record are to be determined for the purposes of such action by the  Company or one of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution,  liquidation or winding-up is expected to become effective or occur, and the date as of which it is  expected that holders of Common Stock of record shall be entitled to exchange their Common  Stock for securities or other property deliverable upon such Merger Event, dissolution,  liquidation or winding-up.  Failure to give such notice, or any defect therein, shall not affect the  legality or validity of such action by the Company or one of its Subsidiaries, Merger Event,  dissolution, liquidation or winding-up.   Section 14.11  Stockholder Rights Plans.  To the extent the Company has a stockholder  rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued  upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the  certificates representing the Common Stock issued upon such conversion shall bear such  legends, if any, in each case as may be provided by the terms of any such stockholder rights plan,  as the same may be amended from time to time. However, if, prior to any conversion of Notes,  the rights have separated from the shares of Common Stock in accordance with the provisions of  the applicable stockholder rights plan, the Conversion Rate shall be adjusted at the time of  separation as if the Company distributed to all or substantially all holders of the Common Stock  Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the  expiration, termination or redemption of such rights.  Section 14.12 Exchange in Lieu of Conversion.  (a) When a Holder surrenders its Notes  for conversion, the Company may, at its election (an “Exchange Election”), direct the  Conversion Agent to deliver, on or prior to the Trading Day immediately following the  Conversion Date, such Notes to one or more financial institutions designated by the Company  (each, a “Designated Financial Institution”) for exchange in lieu of conversion.  In order to  accept any Notes surrendered for conversion, the Designated Financial Institution(s) must agree  to timely pay and deliver, as the case may be, in exchange for such Notes, cash up to the  aggregate principal amount of converted Notes and cash, shares of Common Stock or a  combination of cash and shares of Common Stock, at the Company’s election, in respect of the  remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of  





 






82  #95220814v17  such Notes, that would otherwise be due upon conversion pursuant to Section 14.02 (the  “Conversion Consideration”). If the Company makes an Exchange Election, the Company  shall, by the close of business on the Trading Day immediately following the relevant  Conversion Date, notify in writing the Trustee, the Conversion Agent (if other than the Trustee)  and the Holder surrendering its Notes for conversion that the Company has made the Exchange  Election, and the Company shall notify the Designated Financial Institution(s) of the relevant  deadline for delivery of the Conversion Consideration and the relevant Cash Percentage, as the  case may be.   (b) Any Notes delivered to the Designated Financial Institution(s) shall remain  outstanding, subject to applicable procedures of the Depositary.  If the Designated Financial  Institution(s) agree(s) to accept any Notes for exchange but does/do not timely pay and deliver,  as the case may be, the related Conversion Consideration, or if such Designated Financial  Institution does not accept the Notes for exchange pursuant to this Section 14.12, the Company  shall pay and deliver, as the case may be, the relevant Conversion Consideration as, and at the  time, required pursuant to this Indenture as if the Company had not made the Exchange Election.  (c) The Company’s designation of any Designated Financial Institution(s) to which the  Notes may be submitted for exchange does not require such Designated Financial Institution(s)  to accept any Notes (unless such Designated Financial Institution(s) has/have separately made an  agreement with the Company). The Company may, but shall not be obligated to, enter into a  separate agreement with any Designated Financial Institution that would compensate the  Company for any such transaction.  ARTICLE 15  REPURCHASE OF NOTES AT OPTION OF HOLDERS  Section 15.01 [Intentionally Omitted].    Section 15.02 Repurchase at Option of Holders Upon a Fundamental Change.  (a) If a  Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s  option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion  of the principal amount thereof that is equal to $1,000 or an integral multiple of $1,000, on the  date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less  than 20 calendar days or more than 35 calendar days following the date of the Fundamental  Change Company Notice at a repurchase price equal to 100% of the principal amount thereof,  plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase  Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change  Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to  which such Regular Record Date relates, in which case the Company shall instead pay the full  amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and  the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of  Notes to be repurchased pursuant to this Article 15.  The Fundamental Change Repurchase Date  shall be subject to postponement in order to allow the Company to comply with applicable law as  a result of changes to such applicable law occurring after the date of this Indenture.  





 






83  #95220814v17  (b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the  Holder thereof, upon:  (i) delivery to the Paying Agent by a Holder of a duly completed notice (the  “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to  the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in  compliance with the Depositary’s procedures for surrendering interests in Global Notes,  if the Notes are Global Notes, in each case on or before the close of business on the  Business Day immediately preceding the Fundamental Change Repurchase Date; and  (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent  at any time after delivery of the Fundamental Change Repurchase Notice (together with  all necessary endorsements for transfer) at the Corporate Trust Office of the Paying  Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance  with the procedures of the Depositary, in each case such delivery being a condition to  receipt by the Holder of the Fundamental Change Repurchase Price therefor.  The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased  shall state:  (iii) in the case of Physical Notes, the certificate numbers of the Notes to be  delivered for repurchase;  (iv) the portion of the principal amount of Notes to be repurchased, which  must be $1,000 or an integral multiple thereof; and  (v) that the Notes are to be repurchased by the Company pursuant to the  applicable provisions of the Notes and this Indenture;  provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase  Notice must comply with appropriate Depositary procedures.  Notwithstanding anything herein to the contrary, any Holder delivering to the Paying  Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall  have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at  any time prior to the close of business on the Business Day immediately preceding the  Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the  Paying Agent in accordance with Section 15.03.  The Paying Agent shall promptly notify the Company of the receipt by it of any  Fundamental Change Repurchase Notice or written notice of withdrawal thereof.  (c) On or before the 20th calendar day after (i) the date that the Company knew or  reasonably should have known that the Fundamental Change occurred, in the case of a  Fundamental Change described in clause (a) of the Fundamental Change definition in Section  1.01, or (ii) the date of the Fundamental Change occurred, in the case of any other Fundamental  Change, the Company shall provide to all Holders of Notes and the Trustee and the Paying  





 






84  #95220814v17  Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental  Change Company Notice”) of the occurrence of the effective date of the Fundamental Change  and of the repurchase right at the option of the Holders arising as a result thereof.  In the case of  Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such  notice shall be delivered in accordance with the applicable procedures of the Depositary. Each  Fundamental Change Company Notice shall specify:  (i) the events causing the Fundamental Change;  (ii) the date of the Fundamental Change;  (iii) the last date on which a Holder may exercise the repurchase right pursuant  to this Article 15;  (iv) the Fundamental Change Repurchase Price;  (v) the Fundamental Change Repurchase Date;  (vi) the name and address of the Paying Agent and the Conversion Agent, if  applicable;  (vii) if applicable, the Conversion Rate and any adjustments to the Conversion  Rate as a result of a Fundamental Change;  (viii) that the Notes with respect to which a Fundamental Change Repurchase  Notice has been delivered by a Holder may be converted only if the Holder withdraws the  Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;  and  (ix) the procedures that Holders must follow to require the Company to  repurchase their Notes.  Notwithstanding anything to the contrary above, the Company shall not be required to  repurchase or make an offer to repurchase the Notes upon a Fundamental Change if a third party  makes such an offer in the same manner, at the same time and otherwise in compliance with the  requirements for an offer made by the Company as set forth in this Indenture and such third party  purchases all Notes properly surrendered and not validly withdrawn under its offer in the same  manner, at the same time and otherwise in compliance with the requirements for an offer made  by the Company as set forth in this Indenture.  No failure of the Company to give the foregoing notices and no defect therein shall limit  the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the  Notes pursuant to this Section 15.02.   At the Company’s request, the Trustee shall give such notice in the Company’s name and  at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental  Change Company Notice shall be prepared by the Company.  





 






85  #95220814v17  (d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on  any date at the option of the Holders upon a Fundamental Change if the principal amount of the  Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such  date (except in the case of an acceleration resulting from a Default by the Company in the  payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying  Agent will promptly return to the respective Holders thereof any Physical Notes held by it during  the acceleration of the Notes (except in the case of an acceleration resulting from a Default by  the Company in the payment of the Fundamental Change Repurchase Price with respect to such  Notes), or any instructions for book-entry transfer of the Notes in compliance with the  procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or  cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect  thereto shall be deemed to have been withdrawn.  (e) Notwithstanding the foregoing, the Company shall not be required to offer to  repurchase, or to repurchase, the Notes pursuant to the provisions set forth in this Article 15 in  respect of a Fundamental Change (i) that constitutes a Merger Event for which the Reference  Property consists entirely of cash in U.S. dollars; (ii) pursuant to which, immediately after the  consummation of such transaction or event, the Notes become convertible into consideration that  consists solely of cash in U.S. dollars in an amount per $1,000 principal amount of Notes that  equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of  Notes (calculated assuming that such amount includes the maximum amount of accrued but  unpaid interest payable as part of the Fundamental Change Repurchase Price for such transaction  or event); and (iii) in respect of which the Company timely sends the notice of such Fundamental  Change, as required pursuant to this Indenture.  Section 15.03 Withdrawal of Fundamental Change Repurchase Notice.  (a) A  Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a  written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in  accordance with this Section 15.03 at any time prior to the close of business on the Business Day  immediately preceding the Fundamental Change Repurchase Date, specifying:  (i) the principal amount of the Notes with respect to which such notice of  withdrawal is being submitted,  (ii) if Physical Notes have been issued, the certificate number of the Note in  respect of which such notice of withdrawal is being submitted, and  (iii) the principal amount, if any, of such Note that remains subject to the  original  Fundamental Change Repurchase Notice, which portion must be in principal  amounts of $1,000 or an integral multiple of $1,000;  provided, however, that if the Notes are Global Notes, the notice must comply with appropriate  procedures of the Depositary.  Section 15.04 Deposit of Fundamental Change Repurchase Price.  (a) The Company will  deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is  acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04)  





 






86  #95220814v17  on or prior to 11:00 a.m., New York City time, on the  Fundamental Change Repurchase Date an  amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate  Fundamental Change Repurchase Price.  Subject to receipt of funds and/or Notes by the Trustee  (or other Paying Agent appointed by the Company), payment for Notes surrendered for  repurchase (and not withdrawn prior to the close of business on the Business Day immediately  preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the  Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in   Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee  (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required  by Section 15.02 by mailing checks for the amount payable to the Holders of such Notes entitled  thereto as they shall appear in the Note Register; provided, however, that payments to the  Depositary shall be made by wire transfer of immediately available funds to the account of the  Depositary or its nominee.  The Trustee shall, promptly after such payment and upon written  demand by the Company, return to the Company any funds in excess of the Fundamental Change  Repurchase Price.  (b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase  Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to  make payment on all the Notes or portions thereof that are to be repurchased on such  Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly  surrendered for repurchase and have not been validly withdrawn, (i) such Notes will cease to be  outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer  of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and  (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the  Fundamental Change Repurchase Price upon delivery or transfer of the Notes and, if applicable,  accrued and unpaid interest).  (c) Upon surrender of a Note that is to be repurchased in part pursuant to Section  15.02, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a  new Note in an authorized denomination equal in principal amount to the unrepurchased portion  of the Note surrendered.  Section 15.05 Covenant to Comply with Applicable Laws Upon Repurchase of Notes.  In  connection with any repurchase offer, the Company will, if required:  (a) comply with the tender offer rules under the Exchange Act;  (b) file a Schedule TO or any other required schedule under the Exchange Act; and  (c) otherwise comply with all federal and state securities laws in connection with any  offer by the Company to repurchase the Notes;  in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the  time and in the manner specified in this Article 15.  





 






87  #95220814v17  ARTICLE 16  OPTIONAL REDEMPTION  Section 16.01 Optional Redemption.  No sinking fund is provided for the Notes.  The  Notes shall not be redeemable by the Company prior to December 5, 2025.  On or after  December 5, 2025, the Company may redeem (an “Optional Redemption”) for cash all or any  portion of the Notes, at the Redemption Price, if the Last Reported Sale Price of the Common  Stock has been at least 130% of the Conversion Price then in effect for at least 20 Trading Days  (whether or not consecutive) during any 30 consecutive Trading Day period (including the last  Trading Day of such period) ending on, and including, the Trading Day immediately preceding  the date on which the Company provides the Notice of Redemption in accordance with Section  16.02.  Section 16.02 Notice of Optional Redemption; Selection of Notes.  (a) If the Company  exercises its Optional Redemption right with respect to all or any part of the Notes pursuant to  Section 16.01, it shall fix a date for redemption (each, a “Redemption Date”) and it shall deliver  or cause to be delivered a notice of such Optional Redemption (a “Notice of Redemption”) not  less than 45 nor more than 65 Scheduled Trading Days prior to the Redemption Date to the  Trustee, the Paying Agent and each Holder of Notes.  The Redemption Date must be a Business  Day, and the Company shall not specify a Redemption Date that falls on or after the 41st  Scheduled Trading Day immediately preceding the Maturity Date.  (b) The Notice of Redemption, if delivered in the manner herein provided, shall be  conclusively presumed to have been duly given, whether or not the Holder receives such notice.   In any case, failure to give such Notice of Redemption by mail or any defect in the Notice of  Redemption to the Holder of any Note designated for redemption as a whole or in part shall not  affect the validity of the proceedings for the redemption of any other Note.  (c) Each Notice of Redemption shall specify:  (i) the Redemption Date;  (ii) the Redemption Price;  (iii) that on the Redemption Date, the Redemption Price will become due and  payable upon each Note to be redeemed, and that interest thereon, if any, shall cease to  accrue on and after the Redemption Date;   (iv) the place or places where such Notes are to be surrendered for payment of  the Redemption Price;  (v) that Holders may surrender their Notes for conversion at any time prior to  the close of business on the Scheduled Trading Day immediately preceding the  Redemption Date;  (vi) the procedures a converting Holder must follow to convert its Notes and  the Cash Percentage, if applicable;   





 






88  #95220814v17  (vii) the Conversion Rate and, if applicable, the number of Additional Shares  added to the Conversion Rate in accordance with Section 14.03;   (viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes;  and  (ix) in case any Note is to be redeemed in part only, the portion of the principal  amount thereof to be redeemed and on and after the Redemption Date, upon surrender of  such Note, a new Note in principal amount equal to the unredeemed portion thereof shall  be issued.  A Notice of Redemption shall be irrevocable.  (d) If the Company redeems fewer than all of the outstanding Notes, the Notes to be  redeemed will be selected according to the Depositary’s applicable procedures, in the case of  Global Notes, or, in the case of Physical Notes, the Trustee shall select the Notes to be redeemed  (in principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis or by another  method the Trustee considers to be fair and appropriate.  If any Note selected for partial  redemption is submitted for conversion in part after such selection, the portion of the Note  submitted for conversion shall be deemed (so far as may be possible) to be the portion selected  for redemption.  Section 16.03 Payment of Notes Called for Redemption.  (a) If any Notice of Redemption  has been given in respect of the Notes in accordance with Section 16.02, the Notes shall become  due and payable on the Redemption Date at the place or places stated in the Notice of  Redemption and at the applicable Redemption Price.  On presentation and surrender of the Notes  at the place or places stated in the Notice of Redemption, the Notes shall be paid and redeemed  by the Company at the applicable Redemption Price.  (b) Prior to the open of business on the Redemption Date, the Company shall deposit  with the Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying  Agent, shall segregate and hold in trust as provided in Section 7.05 an amount of cash (in  immediately available funds if deposited on the Redemption Date), sufficient to pay the  Redemption Price of all of the Notes to be redeemed on such Redemption Date. Subject to  receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the  Redemption Date for such Notes.  The Paying Agent shall, promptly after such payment and  upon written demand by the Company, return to the Company any funds in excess of the  Redemption Price.  Section 16.04 Restrictions on Redemption.  The Company may not redeem any Notes on  any date if the principal amount of the Notes has been accelerated in accordance with the terms  of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption  Date (except in the case of an acceleration resulting from a Default by the Company in the  payment of the Redemption Price with respect to such Notes).  





 






89  #95220814v17  ARTICLE 17  MISCELLANEOUS PROVISIONS  Section 17.01 Provisions Binding on Company’s Successors.  All the covenants,  stipulations, promises and agreements of the Company contained in this Indenture shall bind its  successors and assigns whether so expressed or not.  Section 17.02 Official Acts by Successor.  Any act or proceeding by any provision of this  Indenture authorized or required to be done or performed by any board, committee or Officer of  the Company shall and may be done and performed with like force and effect by the like board,  committee or officer of any corporation or other entity that shall at the time be the lawful sole  successor of the Company.  Any act or proceeding by any provision of this Indenture authorized  or required to be done or performed by any board, committee or Officer of a Subsidiary  Guarantor shall and may be done and performed with like force and effect by the like board,  committee or officer of any corporation or other entity that shall at the time be the lawful sole  successor of such Subsidiary Guarantor.   Section 17.03 Addresses for Notices, Etc.  Any notice or demand that by any provision of  this Indenture is required or permitted to be given or served by the Trustee or by the Holders on  the Company or on any Subsidiary Guarantor shall be deemed to have been sufficiently given or  made, for all purposes if given or served by being (a) deposited postage prepaid by registered or  certified mail in a post office letter box addressed (until another address is filed by the Company  with the Trustee) to Patrick Industries, Inc., 107 West Franklin Street, P.O. Box 638, Elkhart,  Indiana 46515, Attention: Andy L. Nemeth, Chief Executive Officer, Jake Petkovich, Chief  Financial Officer and Joel Duthie, Chief Legal Officer, or (b) emailed to  nemetha@patrickind.com, petkovij@patrickind.com and duthiej@patrickind.com.  Any notice,  direction, request or demand hereunder to or upon the Trustee shall be deemed to have been  sufficiently given or made, for all purposes, if given or served by being deposited postage  prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust  Office.  The Trustee, by notice to the Company, may designate additional or different addresses  for subsequent notices or communications.  Any notice or communication delivered or to be delivered to a Holder of Physical Notes  shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Note  Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice  or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in  accordance with the applicable procedures of the Depositary and shall be sufficiently given to it  if so delivered within the time prescribed.  Failure to mail or deliver a notice or communication to a Holder or any defect in it shall  not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed or  delivered, as the case may be, in the manner provided above, it is duly given, whether or not the  addressee receives it.  





 






90  #95220814v17  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 to Holders by mail, then such notification as  shall be made with the approval of the Trustee shall constitute a sufficient notification for every  purpose hereunder.  Section 17.04 Governing Law; Jurisdiction.  THIS INDENTURE AND EACH NOTE,  AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO  THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED  IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT  REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).  Each of the Company and each Subsidiary Guarantor irrevocably consents and agrees, for  the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action,  suit or proceeding against it with respect to obligations, liabilities or any other matter arising out  of or in connection with this Indenture or the Notes may be brought in the courts of the State of  New York or the courts of the United States located in the Borough of Manhattan, New York  City, New York and, until amounts due and to become due in respect of the Notes have been  paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such  court in personam, generally and unconditionally with respect to any action, suit or proceeding  for itself in respect of its properties, assets and revenues.    Each of the Company and each Subsidiary Guarantor irrevocably and unconditionally  waives, to the fullest extent permitted by law, any objection which it may now or hereafter have  to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in  connection with this Indenture brought in the courts of the State of New York or the courts of the  United States located in the Borough of Manhattan, New York City, New York and hereby  further irrevocably and unconditionally waives and agrees not to plead or claim in any such court  that any such action, suit or proceeding brought in any such court has been brought in an  inconvenient forum.  Section 17.05 Evidence of Compliance with Conditions Precedent; Certificates and  Opinions of Counsel to Trustee.  Upon any application or demand by the Company or any  Subsidiary Guarantor to the Trustee to take any action under any of the provisions of this  Indenture, the Company or such Subsidiary Guarantor, as the case may be, shall, if requested by  the Trustee, furnish to the Trustee an Officer’s Certificate stating that such action is permitted by  the terms of this Indenture.  Each Officer’s Certificate provided for, by or on behalf of the Company in this Indenture  and delivered to the Trustee with respect to compliance with this Indenture (other than the  Officer’s Certificates provided for in Section 4.08) shall include (a) a statement that the person  signing such certificate is familiar with the requested action and this Indenture; (b) a brief  statement as to the nature and scope of the examination or investigation upon which the  statement contained in such certificate is based; (c) a statement that, in the judgment of such  person, he or she has made such examination or investigation as is necessary to enable him or her  to express an informed judgment as to whether or not such action is permitted by this Indenture;  and (d) a statement as to whether or not, in the judgment of such person, such action is permitted  by this Indenture.  





 






91  #95220814v17  Notwithstanding anything to the contrary in this Section 17.05, if any provision in this  Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in  connection with any action to be taken by the Trustee or the Company hereunder, the Trustee  shall be entitled to, or entitled to request, such Opinion of Counsel.  Section 17.06 Legal Holidays.  In any case where any Interest Payment Date, any  Redemption Date, any Fundamental Change Repurchase Date or the Maturity Date is not a  Business Day, then any action to be taken on such date need not be taken on such date, but may  be taken on the next succeeding Business Day with the same force and effect as if taken on such  date, and no interest shall accrue in respect of the delay.  Section 17.07 No Security Interest Created.  Nothing in this Indenture or in the Notes,  expressed or implied, shall be construed to constitute a security interest under the Uniform  Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any  jurisdiction.  Section 17.08 Benefits of Indenture.  Nothing in this Indenture or in the Notes, expressed  or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent,  any Conversion Agent, any authenticating agent, any Note Registrar and their successors  hereunder, any benefit or any legal or equitable right, remedy or claim under this Indenture.  Section 17.09 Table of Contents, Headings, Etc.  The table of contents and the titles and  headings of the articles and sections of this Indenture have been inserted for convenience of  reference only, are not to be considered a part hereof, and shall in no way modify or restrict any  of the terms or provisions hereof.  Section 17.10 Authenticating Agent.  The Trustee may appoint an authenticating agent  that shall be authorized to act on its behalf and subject to its direction in the authentication and  delivery of Notes in connection with the original issuance thereof and transfers and exchanges of  Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section  10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent  had been expressly authorized by this Indenture and those Sections to authenticate and deliver  Notes.  For all purposes of this Indenture, the authentication and delivery of Notes by the  authenticating agent shall be deemed to be authentication and delivery of such Notes “by the  Trustee” and a certificate of authentication executed on behalf of the Trustee by an  authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the  Trustee’s certificate of authentication.  Such authenticating agent shall at all times be a Person  eligible to serve as trustee hereunder pursuant to Section 7.08.  Any corporation or other entity into which any authenticating agent may be merged or  converted or with which it may be consolidated, or any corporation or other entity resulting from  any merger, consolidation or conversion to which any authenticating agent shall be a party, or  any corporation or other entity succeeding to the corporate trust business of any authenticating  agent, shall be the successor of the authenticating agent hereunder, if such successor corporation  or other entity is otherwise eligible under this Section 17.10, without the execution or filing of  any paper or any further act on the part of the parties hereto or the authenticating agent or such  successor corporation or other entity.  





 






92  #95220814v17  Any authenticating agent may at any time resign by giving written notice of resignation  to the Trustee and to the Company.  The Trustee may at any time terminate the agency of any  authenticating agent by giving written notice of termination to such authenticating agent and to  the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case  at any time any authenticating agent shall cease to be eligible under this Section, the Trustee may  appoint a successor authenticating agent (which may be the Trustee), shall give written notice of  such appointment to the Company and shall deliver notice of such appointment to all Holders.  The Company agrees to pay to the authenticating agent from time to time reasonable  compensation for its services although the Company may terminate the authenticating agent, if it  determines such agent’s fees to be unreasonable.  The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section  17.10 shall be applicable to any authenticating agent.  If an authenticating agent is appointed pursuant to this Section 17.10, the Notes  may  have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative  certificate of authentication in the following form:  __________________________,  as Authenticating Agent, certifies that this is one of the Notes described  in the within-named Indenture.  By: ____________________  Authorized Officer  Section 17.11 Execution in Counterparts.  This Indenture may be executed in any number  of counterparts, each of which shall be an original, but such counterparts shall together constitute  but one and the same instrument.  The exchange of copies of this Indenture and of signature  pages by facsimile, electronic means or PDF transmission shall constitute effective execution  and delivery of this Indenture as to the parties hereto and may be used in lieu of the original  Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile, electronic  means or PDF shall be deemed to be their original signatures for all purposes.  Section 17.12 Severability.  In the event any provision of this Indenture or in the Notes  shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,  legality or enforceability of the remaining provisions shall not in any way be affected or  impaired.  Section 17.13 Waiver of Jury Trial.  EACH OF THE COMPANY, EACH SUBSIDIARY  GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE  FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO  TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO  THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.  Section 17.14 Force Majeure.  In no event shall the Trustee be responsible or liable for  any failure or delay in the performance of its obligations hereunder arising out of or caused by,  





 






93  #95220814v17  directly or indirectly, forces beyond its control, including, without limitation, strikes, work  stoppages, accidents, epidemics, pandemics, acts of war or terrorism, civil or military  disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or  malfunctions of utilities, communications or computer (software and hardware) services; it being  understood that the Trustee shall use reasonable efforts that are consistent with accepted  practices in the banking industry to resume performance as soon as practicable under the  circumstances.  Section 17.15 Calculations.  Except as otherwise provided herein, the Company shall be  responsible for making all calculations called for under the Notes.  These calculations include,  but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the  Daily VWAPs, the Daily Conversion Values, the Daily Net Settlement Amounts, the Daily  Settlement Amounts, the Settlement Amount, accrued interest payable on the Notes and the  Conversion Rate of the Notes.  The Company shall make all these calculations in good faith and,  absent manifest error, the Company’s calculations shall be final and binding on Holders of  Notes.  The Company shall provide a schedule of its calculations to each of the Trustee and the  Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively  upon the accuracy of the Company’s calculations without independent verification.  The Trustee  will forward the Company’s calculations to any Holder of Notes upon the request of that Holder  at the sole cost and expense of the Company.  Section 17.16 USA PATRIOT Act.  The parties hereto acknowledge that in accordance  with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in  order to help fight the funding of terrorism and money laundering, is required to obtain, verify,  and record information that identifies each person or legal entity that establishes a relationship or  opens an account with the Trustee.  The parties to this Indenture agree that they will provide the  Trustee with such information as it may request in order for the Trustee to satisfy the  requirements of the USA PATRIOT Act.  Section 17.17 Electronic Signatures.  All notices, approvals, consents, requests and any  communications hereunder must be in writing (provided that any communication sent to the  Trustee hereunder must be in the form of a document that is signed manually or by way of a  digital signature provided by DocuSign (or such other digital signature provider as specified in  writing to Trustee by the authorized representative), in English).  The Company agrees to assume  all risks arising out of the use of digital signatures and electronic methods to submit  communications to Trustee, including without limitation the risk of Trustee acting on  unauthorized instructions, and the risk of interception and misuse by third parties.  The Trustee shall have the right to accept and act upon any notice, instruction, or other  communication, including any funds transfer instruction, (each, a “Notice”) received pursuant to  this Indenture by electronic transmission (including by e-mail, facsimile transmission, web portal  or other electronic methods) and shall not have any duty to confirm that the person sending such  Notice is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to  comply with the ESIGN Act of 2000 or other applicable law (including electronic images of  handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any  other digital signature provider identified by any other party hereto and acceptable to the  Trustee) shall be deemed original signatures for all purposes. Each other party to this Indenture  





 






94  #95220814v17  assumes all risks arising out of the use of electronic signatures and electronic methods to send  Notices to the Trustee, including without limitation the risk of the Trustee acting on an  unauthorized Notice and the risk of interception or misuse by third parties. Notwithstanding the  foregoing, the Trustee may in any instance and in its sole discretion require that a Notice in the  form of an original document bearing a manual signature be delivered to the Trustee in lieu of, or  in addition to, any such electronic Notice.  [Remainder of page intentionally left blank]    





 






    #95220814v17  IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly  executed as of the date first written above.  PATRICK INDUSTRIES, INC.  By:   Name:   Title:   





 






    #95220814v17  ALL COUNTIES GLASS, INC.  ALL STATE GLASS, INC.  ARRAN ISLE, INC.  BATHROOM & CLOSET, LLC  BRISTOLPIPE, LLC  DEHCO, INC.  DOWCO, INC.  FRESNO SHOWER DOOR, INC.  FRONT RANGE STONE, INC.  GEREMARIE CORPORATION  G.G. SCHMITT & SONS, INC.  GREAT LAKES BOAT TOP LLC  HEYWOOD WILLIAMS USA, LLC  HIGHLAND LAKES ACQUISITION, LLC  HYPERFORM, INC.  INLAND PLYWOOD COMPANY  KLS DOORS, LLC  LARRY METHVIN INSTALLATIONS, INC.  LASALLE BRISTOL CORPORATION  LASALLE BRISTOL, LLC  LASALLE BRISTOL, LP  MARINE ACCESSORIES CORPORATION  MADRONA STONE, LLC  MONSTER MARINE PRODUCTS, INC.  PATRICK TRANSPORTATION, LLC  SEI MANUFACTURING, INC.  SHOWER ENCLOSURES AMERICA, INC.  TACO METALS, LLC  TOPLINE COUNTERS, LLC  TRANSPORT INDIANA, LLC  TRANSPORT SYNERGY, LLC  XTREME MARINE CORPORATION,  each as a Subsidiary Guarantor    By:_______________________________          Name:            Title:      STRUCTURAL COMPOSITES, LLC, as a  Subsidiary Guarantor    By:_______________________________  Name:   Title:   





 






    #95220814v17    U.S. BANK NATIONAL  ASSOCIATION, as Trustee  By:   Name:   Title:       





 






  A-1  #95220814v17  EXHIBIT A  [FORM OF FACE OF NOTE]  [INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]  [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED  REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK  CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF  TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS  REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT  HEREUNDER 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 INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &  CO., HAS AN INTEREST HEREIN.]  [INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]  [THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON  CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE  SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT  BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN  ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF  OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:  (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS  ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING  OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE  INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND  (2) AGREES FOR THE BENEFIT OF PATRICK INDUSTRIES, INC. (THE  “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE  TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO  THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL  ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY  RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION  THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY  APPLICABLE LAW, EXCEPT:  (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR  (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS  BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR  





 






A-2  #95220814v17  (C) TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED  INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE  SECURITIES ACT, OR   (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION  PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER  AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS  OF THE SECURITIES ACT.   PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH  CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO  REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER  EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT  THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES  ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE  AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION  REQUIREMENTS OF THE SECURITIES ACT.]  NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF  PATRICK INDUSTRIES, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS  DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF PATRICK INDUSTRIES, INC.  DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE,  OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST  HEREIN.   





 






A-3  #95220814v17  Patrick Industries, Inc.    1.75% Convertible Senior Note due 2028  No. [_____] [Initially]1 $[_________]  CUSIP No. [_________]  Patrick Industries, Inc., a corporation duly organized and validly existing under the laws  of the State of Indiana (the “Company,” which term includes any successor corporation or other  entity under the Indenture referred to on the reverse hereof), for value received hereby promises  to pay to [CEDE & CO.]2 [_______]3, or registered assigns, the principal sum [as set forth in the  “Schedule of Exchanges of Notes” attached hereto]4 [of $[_______]]5, which amount, taken  together with the principal amounts of all other outstanding Notes, shall not, unless permitted by  the Indenture, exceed $258,750,000 in aggregate at any time, in accordance with the rules and  procedures of the Depositary, on December 1, 2028, and interest thereon as set forth below.  This Note shall bear interest at the rate of 1.75% per year from December 13, 2021, or  from the most recent date to which interest had been paid or provided for to, but excluding, the  next scheduled Interest Payment Date until December 1, 2028.  Interest is payable semi-annually  in arrears on each June 1 and December 1, commencing on June 1, 2022, to Holders of record at  the close of business on the preceding May 15 and November 15 (whether or not such day is a  Business Day), respectively.  Additional Interest will be payable as set forth in Section 4.06(d),  Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest  on, or in respect of, any Note therein shall be deemed to include Additional Interest if, in such  context, Additional Interest is, was or would be payable pursuant to any of such Section 4.06(d),  Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional Interest in  any provision therein shall not be construed as excluding Additional Interest in those provisions  thereof where such express mention is not made.  Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes,  subject to the enforceability thereof under applicable law, from, and including, the relevant  payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid  by the Company, at its election, in accordance with Section 2.03(c) of the Indenture.    The Company shall pay or cause the Paying Agent to pay by wire transfer the principal of  and interest on this Note, if and so long as such Note is a Global Note, in immediately available  funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Note.   As provided in and subject to the provisions of the Indenture, the Company shall pay or cause the  Paying Agent to pay the principal of any Notes (other than Notes that are Global Notes) at the  office or agency designated by the Company for that purpose.  The Company has initially  designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and its                                                    1 Include if a global note.  2 Include if a global note.  3 Include if a physical note.  4 Include if a global note.  5 Include if a physical note.  





 






A-4  #95220814v17  agency in the Borough of Manhattan, The City of New York, as a place where Notes may be  presented for payment or for registration of transfer and exchange.    The Notes shall be unconditionally guaranteed, jointly and severally, by each of the  Subsidiary Guarantors pursuant to the terms and conditions set forth in Article 13 of the  Indenture.  Reference is made to the further provisions of this Note set forth on the reverse hereof,  including, without limitation, provisions giving the Holder of this Note the right to convert this  Note into cash and shares of Common Stock, if any, on the terms and subject to the limitations  set forth in the Indenture.  Such further provisions shall for all purposes have the same effect as  though fully set forth at this place.  This Note, and any claim, controversy or dispute arising under or related to this  Note, shall be construed in accordance with and governed by the laws of the State of New  York (without regard to the conflicts of laws provisions thereof).  In the case of any conflict between this Note and the Indenture, the provisions of the  Indenture shall control and govern.  This Note shall not be valid or become obligatory for any purpose until the certificate of  authentication hereon shall have been signed manually or electronically by the Trustee or a duly  authorized authenticating agent under the Indenture.  [Remainder of page intentionally left blank]  





 






A-5  #95220814v17  IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.  PATRICK INDUSTRIES, INC.  By:   Name:   Title:     Dated:   TRUSTEE’S CERTIFICATE OF AUTHENTICATION    U.S. BANK NATIONAL ASSOCIATION  as Trustee, certifies that this is one of the Notes described  in the within-named Indenture.  By:_______________________________       Authorized Officer  





 






A-6  #95220814v17  [FORM OF REVERSE OF NOTE]  Patrick Industries, Inc.  1.75% Convertible Senior Note due 2028  This Note is one of a duly authorized issue of Notes of the Company, designated as its  1.75% Convertible Senior Notes due 2028 (the “Notes”), limited to the aggregate principal  amount of $258,750,000 all issued or to be issued under and pursuant to an Indenture dated as of  December 13, 2021 (the “Indenture”), among the Company, the Subsidiary Guarantors and U.S.  Bank National Association (the “Trustee”), to which Indenture and all indentures supplemental  thereto reference is hereby made for a description of the rights, limitations of rights, obligations,  duties and immunities thereunder of the Trustee, the Company, the Subsidiary Guarantors and  the Holders of the Notes.  Additional Notes may be issued in an unlimited aggregate principal  amount, subject to certain conditions specified in the Indenture.  Capitalized terms used in this  Note and not defined in this Note shall have the respective meanings set forth in the Indenture.  In case certain Events of Default shall have occurred and be continuing, the principal of,  and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in  aggregate principal amount of Notes then outstanding, and upon said declaration shall become,  due and payable, in the manner, with the effect and subject to the conditions and certain  exceptions set forth in the Indenture.  Subject to the terms and conditions of the Indenture, the Company will make all  payments and deliveries in respect of the Fundamental Change Repurchase Price on the  Fundamental Change Repurchase Date, the Redemption Price on any Redemption Date and the  principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note  to a Paying Agent to collect such payments in respect of the Note.  The Company will pay cash  amounts in money of the United States that at the time of payment is legal tender for payment of  public and private debts.    The Indenture contains provisions permitting the Company and the Trustee in certain  circumstances, without the consent of the Holders of the Notes, and in certain other  circumstances, with the consent of the Holders of not less than a majority in aggregate principal  amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute  supplemental indentures modifying the terms of the Indenture and the Notes as described therein.   It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in  aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of  all of the Notes waive any past Default or Event of Default under the Indenture and its  consequences.  Each Holder shall have the right to receive payment or delivery, as the case may be, of  (x) the principal (including the Redemption Price and the Fundamental Change Repurchase  Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due  upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful  money or shares of Common Stock, as the case may be, herein prescribed.  





 






A-7  #95220814v17  The Notes are issuable in registered form without coupons in denominations of $1,000  principal amount and integral multiples of $1,000 in excess thereof.  At the office or agency of  the Company referred to on the face hereof, and in the manner and subject to the limitations  provided in the Indenture, Notes may be exchanged for a like aggregate principal amount of  Notes of other authorized denominations, without payment of any service charge but, if required  by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax  that may be imposed in connection therewith as a result of the name of the Holder of the new  Notes issued upon such exchange of Notes being different from the name of the Holder of the  old Notes surrendered for such exchange.  The Notes are not subject to redemption at the Company’s option prior to December 5,  2025.  The Notes shall be redeemable at the Company’s option on or after December 5, 2025 in  accordance with the terms and subject to the conditions specified in the Indenture.  No sinking  fund is provided for the Notes.    Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s  option, to require the Company to repurchase for cash all of such Holder’s Notes or any portion  thereof (in principal amounts of $1,000 or integral multiples thereof) surrendered for repurchase  in accordance with the Indenture on the Fundamental Change Repurchase Date at a price equal  to the Fundamental Change Repurchase Price.  Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,  during certain periods and upon the occurrence of certain conditions specified in the Indenture,  prior to the close of business on the second Scheduled Trading Day immediately preceding the  Maturity Date, to convert any Notes or portion thereof that is $1,000 or an integral multiple  thereof, into cash and shares of Common Stock, if any, at the Conversion Rate specified in the  Indenture, as adjusted from time to time as provided in the Indenture.  





 






A-8  #95220814v17  ABBREVIATIONS  The following abbreviations, when used in the inscription of the face of this Note, shall  be construed as though they were written out in full according to applicable laws or regulations:  TEN COM = as tenants in common    UNIF GIFT MIN ACT = Uniform Gifts to Minors Act    CUST = Custodian    TEN ENT = as tenants by the entireties    JT TEN  = joint tenants with right of survivorship and not as tenants in common     Additional abbreviations may also be used though not in the above list.    





 






A-9  #95220814v17  SCHEDULE A6  SCHEDULE OF EXCHANGES OF NOTES    Patrick Industries, Inc.  1.75% Convertible Senior Notes due 2028  The initial principal amount of this Global Note is _______ DOLLARS ($[_________]).   The following increases or decreases 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  Custodian                                                                                                                                                                                        6 Include if a global note.  





 






  1  #95220814v17  ATTACHMENT 1  [FORM OF NOTICE OF CONVERSION]  To:  U.S. Bank National Association         190 S. LaSalle Street, 10th Floor,         Chicago, IL 60603         Attention: Corporate Trust Services  The undersigned registered owner of this Note hereby exercises the option to convert this  Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof)  below designated, into cash and shares of Common Stock, if any, in accordance with the terms of  the Indenture referred to in this Note, and directs that any cash payable and any shares of  Common Stock issuable and deliverable upon such conversion, together with any cash for any  fractional share, and any Notes representing any unconverted principal amount hereof, be issued  and delivered to the registered Holder hereof unless a different name has been indicated below.   If any shares of Common Stock or any portion of this Note not converted are to be issued in the  name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or  similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section 14.02(e) of  the Indenture.  Any amount required to be paid to the undersigned on account of interest  accompanies this Note.  Capitalized terms used herein but not defined shall have the meanings  ascribed to such terms in the Indenture.  Dated: _____________________ ________________________________   ________________________________   Signature(s)  ___________________________  Signature Guarantee  Signature(s) must be guaranteed  by an eligible Guarantor Institution  (banks, stock brokers, savings and  loan associations and credit unions)  with membership in an approved  signature guarantee medallion program  pursuant to Securities and Exchange  Commission Rule 17Ad-15 if shares  of Common Stock are to be issued, or  Notes are to be delivered, other than  to and in the name of the registered holder.  





 






2  #95220814v17  Fill in for registration of shares if  to be issued, and Notes if to  be delivered, other than to and in the  name of the registered holder:  _________________________  (Name)  _________________________  (Street Address)  _________________________  (City, State and Zip Code)  Please print name and address  Principal amount to be converted (if less than all):   $______,000  NOTICE:  The above signature(s) of the Holder(s) hereof  must correspond with the name as written upon the face of  the Note in every particular without alteration or  enlargement or any change whatever.  _________________________  Social Security or Other Taxpayer  Identification Number      





 






  1  #95220814v17  ATTACHMENT 2  [FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]  To:  U.S. Bank National Association         190 S. LaSalle Street, 10th Floor,         Chicago, IL 60603         Attention: Corporate Trust Services  The undersigned registered owner of this Note hereby acknowledges receipt of a notice  from Patrick Industries, Inc. (the “Company”) as to the occurrence of a Fundamental Change  with respect to the Company and specifying the Fundamental Change Repurchase Date and  requests and instructs the Company to pay to the registered holder hereof in accordance with  Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of this  Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof)  below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the  period after a Regular Record Date and on or prior to the corresponding Interest Payment Date,  accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change  Repurchase Date.  Capitalized terms used herein but not defined shall have the meanings  ascribed to such terms in the Indenture.  In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are  as set forth below:  Dated: _____________________   ________________________________   Signature(s)    _________________________  Social Security or Other Taxpayer  Identification Number  Principal amount to be repaid (if less than all):   $______,000  NOTICE:  The above signature(s) of the Holder(s) hereof  must correspond with the name as written upon the face of  the Note in every particular without alteration or  enlargement or any change whatever.  





 






  1  #95220814v17  ATTACHMENT 3  [FORM OF ASSIGNMENT AND TRANSFER]  For value received ____________________________ hereby sell(s), assign(s) and transfer(s)  unto _________________ (Please insert social security or Taxpayer Identification Number of  assignee) the within Note, and hereby irrevocably constitutes and appoints  _____________________ attorney to transfer the said Note on the books of the Company, with  full power of substitution in the premises.  In connection with any transfer of the within Note occurring prior to the Resale Restriction  Termination Date, as defined in the Indenture governing such Note, the undersigned confirms  that such Note is being transferred:  □ To Patrick Industries, Inc. or a subsidiary thereof; or  □ Pursuant to a registration statement that has become or been declared effective under the  Securities Act of 1933, as amended; or  □ Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as  amended; or  □ Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as  amended, or any other available exemption from the registration requirements of the Securities  Act of 1933, as amended.  





 






2  #95220814v17  Dated: ________________________  _____________________________________  _____________________________________  Signature(s)  _____________________________________  Signature Guarantee  Signature(s) must be guaranteed by an  eligible Guarantor Institution (banks, stock  brokers, savings and loan associations and  credit unions) with membership in an approved  signature guarantee medallion program pursuant  to Securities and Exchange Commission  Rule 17Ad-15 if Notes are to be delivered, other  than to and in the name of the registered holder.  NOTICE:  The signature on the assignment must correspond with the name as written upon the  face of the Note in every particular without alteration or enlargement or any change whatever.  





 






  B-1  #95220814v17  EXHIBIT B  FORM OF SUPPLEMENTAL INDENTURE  TO BE DELIVERED BY SUBSEQUENT GUARANTORS  Supplemental Indenture, dated as of ___________, 20 (this “Supplemental  Indenture”), among ______________(the “Additional Subsidiary Guarantor”), a  subsidiary of Patrick Industries, Inc., an Indiana corporation (or its permitted successor)  (the “Company”), the Company, the other Subsidiary Guarantors (as defined in the  Indenture referred to herein) and U.S. Bank National Association, a national banking  association, as trustee under the Indenture referred to below (the “Trustee”).  W I T N E S E T H  WHEREAS, the Company has heretofore executed and delivered to the Trustee  an indenture, dated as of December 13, 2021 (the “Indenture”), providing for the  issuance of 1.75% Convertible Senior Notes due 2028 (the “Notes”);  WHEREAS, the Indenture provides that under certain circumstances the  Additional Subsidiary Guarantor shall execute and deliver to the Trustee a supplemental  indenture pursuant to which the Additional Subsidiary Guarantor shall unconditionally  guarantee all of the Company’s obligations under the Notes and the Indenture on the  terms and conditions set forth herein (the “Subsidiary Guarantee”); and   WHEREAS, pursuant to Section 10.01 of the Indenture, the Trustee is authorized  to execute and deliver this Supplemental Indenture.   NOW, THEREFORE, in consideration of the foregoing and for other good and  valuable consideration, the receipt of which is hereby acknowledged, the Company, the  Additional Subsidiary Guarantor and the Trustee mutually covenant and agree for the  equal and ratable benefit of the Holders of the Notes as follows:   1. Capitalized Terms. Capitalized terms used herein without definition shall  have the meanings assigned to them in the Indenture.  2. Agreement to Guarantee. The Additional Subsidiary Guarantor hereby  becomes a party to the Indenture as a Subsidiary Guarantor and as such shall have all of  the rights and be subject to all of the obligations and agreements of a Subsidiary  Guarantor under the Indenture. The Additional Subsidiary Guarantor hereby agrees, on a  joint and several basis with all the existing Subsidiary Guarantors, to provide an  unconditional Subsidiary Guarantee on the terms and subject to the conditions set forth in  the Subsidiary Guarantee and in the Indenture including but not limited to Article 13  thereof.  3. Ratification of Indenture. Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and  confirmed and all the terms, conditions and provisions thereof shall remain in full force  and effect. This Supplemental Indenture shall form a part of the Indenture for all  





 






B-2  #95220814v17  purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered  shall be bound hereby.  4. No Recourse Against Others. No past, present or future director, officer,  employee, incorporator, stockholder or agent of the Additional Subsidiary Guarantor, as  such, shall have any liability for any obligations of the Company or any Additional  Subsidiary Guarantor under the Notes, any Subsidiary Guarantees, the Indenture or this  Supplemental Indenture or for any claim based on, in respect of, or by reason of, such  obligations or their creation. Each Holder of the Notes by accepting a Note waives and  releases all such liability. The waiver and release are part of the consideration for  issuance of the Notes. Such waiver may not be effective to waive liabilities under the  federal securities laws and it is the view of the Commission that such a waiver is against  public policy.   5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, AND  ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO  THIS SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND  CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW  YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS  THEREOF).  6. Severability Clause. In case any provision in this Supplemental Indenture  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 and such  provision shall be ineffective only to the extent of such invalidity, illegality or  unenforceability.  7. Counterparts. The parties may sign any number of copies of this  Supplemental Indenture. Each signed copy shall be an original, but all of them together  represent the same agreement. The exchange of copies of this Supplemental Indenture  and of signature pages by facsimile or PDF transmission shall constitute effective  execution and delivery of this Supplemental Indenture as to the parties hereto and may be  used in lieu of the original Supplemental Indenture and signature pages for all purposes.  8. Effect of Headings. The Section headings herein are for convenience only  and shall not affect the construction hereof.  9. The Trustee. The Trustee shall not be responsible in any manner  whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture  or for or in respect of the recitals contained herein, all of which recitals are made solely  by the Additional Subsidiary Guarantor and the Company.     





 






B-3  #95220814v17  IN WITNESS WHEREOF, the parties hereto have caused this Supplemental  Indenture to be duly executed and attested, all as of the date first above written.  Dated:             , 202[_]  [ADDITIONAL SUBSIDIARY GUARANTOR]  By:    Name:    Title:     PATRICK INDUSTRIES, INC.  By:    Name:    Title:     U.S. BANK NATIONAL ASSOCIATION,  as Trustee  By:    Name:    Title: