Indenture

EXHIBIT NO. 4.1

 

SEAGATE TECHNOLOGY INTERNATIONAL

as Issuer

the Guarantors party hereto

and

WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee

 

Indenture

Dated as of May 1, 2009

 

10.00% Senior Secured Second-Priority Notes due 2014

 

TABLE OF CONTENTS

 

 

 

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INDENTURE, dated as of May 1, 2009, among SEAGATE TECHNOLOGY INTERNATIONAL, an exempted limited liability company organized under the laws of the Cayman Islands, as issuer (the “ Issuer ”), SEAGATE TECHNOLOGY, an exempted limited liability company organized under the laws of the Cayman Islands, as guarantor (the “ Company ”), the other Guarantors party hereto from time to time and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”).

RECITALS

The Issuer has duly authorized the execution and delivery of the Indenture to provide for the issuance of up to $430,000,000 aggregate principal amount of the Issuer’s 10.00% Senior Secured Second-Priority Notes due 2014 as provided herein (the “ Notes ”). All things necessary to make the Indenture a valid agreement of the Issuer, in accordance with its terms, have been done, and the Issuer has done all things necessary to make the Notes, when executed by the Issuer and authenticated and delivered by the Trustee and duly issued by the Issuer, the valid obligations of the Issuer as hereinafter provided.

In addition, the Guarantors party hereto have duly authorized the execution and delivery of the Indenture as guarantors of the Notes. All things necessary to make the Indenture a valid agreement of each Guarantor, in accordance with its terms, have been done, and each Guarantor has done all things necessary to make the Note Guaranties, when the Notes are executed by the Issuer and authenticated and delivered by the Trustee and duly issued by the Issuer, the valid obligations of such Guarantor as hereinafter provided.

This Indenture is subject to, and will be governed by, certain provisions of the Trust Indenture Act that are specifically made part of this Indenture. Whenever this Indenture refers to a provision of the Trust Indenture Act as applicable to this Indenture, the provision is incorporated by reference in and made a part of this Indenture. For the avoidance of any doubt, Sections of the Trust Indenture Act that are not incorporated by reference in this Indenture will not be part of this Indenture.

THIS INDENTURE WITNESSETH

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as follows:

 

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ARTICLE 1

D EFINITIONS AND I NCORPORATION B Y R EFERENCE

Section 1.01. Definitions .

“ Acquired Debt ” means Debt of a Person existing at the time the Person merges with or into or becomes a Restricted Subsidiary and not Incurred in connection with, or in contemplation of, the Person merging with or into or becoming a Restricted Subsidiary.

“ act ” has the meaning assigned to such term in Section 12.02.

“ Administrative Agent ” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the lenders under the Senior Credit Facility, and its successors in such capacity as provided thereunder.

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “ control ” (including, with correlative meanings, the terms “ controlling ,” “ controlled by ” and “ under common control with ”) with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“ Agent ” means any Registrar, Paying Agent or Authenticating Agent.

“ Agent Member ” means a member of, or a participant in, the Depositary.

“ Applicable Premium ” means, with respect to any Note on any redemption date, the greater of:

(1) 1.0% of the principal amount of such Note; and

(2) the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of such Note on May 1, 2013, plus (ii) all required interest payments due on such Note through May 1, 2013 (excluding accrued but unpaid interest, if any, to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of such Note.

“ Asset Sale ” means any sale, lease, transfer or other disposition (including a Sale and Leaseback Transaction) of any assets by the Company or any Restricted Subsidiary, including by means of a merger, consolidation or similar transaction and including any sale or issuance of the Equity Interests of any

 

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Restricted Subsidiary (each of the above referred to as a “ disposition ”), provided that the following are not included in the definition of “Asset Sale”:

(1) a disposition to the Company or a Restricted Subsidiary, including the sale or issuance by the Company or any Restricted Subsidiary of any Equity Interests of any Restricted Subsidiary to the Company or any Restricted Subsidiary; provided that if such disposition is from the Company or a Guarantor that has pledged its assets as Collateral to a Restricted Subsidiary that does not pledge its assets as Collateral, such disposition is being made in the ordinary course of business of the Company and its Restricted Subsidiaries;

(2) the disposition by the Company or any Restricted Subsidiary in the ordinary course of business of (i) cash and Cash Equivalents, (ii) inventory and other assets acquired and held for resale in the ordinary course of business and periodic clearance of aged inventory, (iii) used or surplus assets, or (iv) rights granted to others pursuant to leases or licenses;

(3) sales of assets (at fair market value) received by the Company or any Restricted Subsidiary upon the exercise of a power of sale or foreclosure by the Company or any Restricted Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;

(4) licensing and cross-licensing arrangements entered into in the ordinary course of business of the Company or any Restricted Subsidiary involving any technology or other intellectual property of the Company or such Subsidiary, and licensing of assets that constitute technology or other intellectual property to joint ventures in connection with Permitted Investments or a Restricted Payment permitted under Section 4.07;

(5) the sale or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;

(6) a transaction covered by Section 5.01;

(7) a Restricted Payment permitted under Section 4.07 or a Permitted Investment;

(8) sales of Receivables and Related Assets pursuant to any Permitted Receivables Financing;

 

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(9) sale and leaseback transactions in the ordinary course of business of platinum and other metals in transactions where such metals are purchased by the Company or any Restricted Subsidiary substantially simultaneously with the sale and leaseback thereof;

(10) the sale or issuance of Equity Interests in i365 Inc. in connection with any (i) stock plan for employees or (ii) acquisitions; and

(11) any disposition in a transaction or series of related transactions of assets with a fair market value of less than $10,000,000.

“ Authenticating Agent ” refers to a Person engaged to authenticate the Notes in the stead of the Trustee.

“ Authorized Agent ” has the meaning set forth in Section 12.14.

“ Available Liquidity ” means, on any date of determination, (i) the aggregate of all cash and Cash Equivalents, as determined on a consolidated basis for the Company and its Restricted Subsidiaries (other than Receivables Subsidiaries) in accordance with GAAP, less (ii) the amount of outstanding Permitted Bank Debt.

“ Average Life ” means, with respect to any Debt, the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the date of determination to the dates of each successive scheduled principal payment of such Debt and (y) the amount of such principal payment by (ii) the sum of all such principal payments.

“ bankruptcy default ” has the meaning assigned to such term in Section 6.01.

“ Board of Directors ” means the Board of Directors of the Company, or any committee thereof duly authorized to act on behalf of such Board.

“ Board Resolution ” means a resolution duly adopted by the Board of Directors which is certified by the Secretary or an Assistant Secretary of the Company and remains in full force and effect as of the date of its certification.

“ Business Day ” means each day which is not a Legal Holiday.

“ Capital Lease ” means, with respect to any Person, any lease of any property which, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person.

“ Capital Stock ” means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent interests (however

 

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designated, whether voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after liabilities, of such Person.

“ Cash Equivalents ” means:

(a) direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof;

(b) investments in commercial paper maturing not more than one year after the date of acquisition issued by a corporation (other than an Affiliate of the Company) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America and having, at such date of acquisition, a rating of “ P–1 ” (or better) from Moody’s or “ A–1 ” (or better) from S&P;

(c) investments in (i) certificates of deposit, bankers’ acceptances, time deposits and money market deposit accounts maturing not more than one year after the date of acquisition thereof issued or guaranteed by or placed with any commercial bank or trust company organized under the laws of the United States of America or any State thereof or any foreign country recognized by the United States of America or (ii) obligations of United States federal agencies sponsored by the federal government (including, without limitation, the Federal Home Loan Bank, Federal Farm Credit Bank, Federal Home Loan Mortgage Corporation and Federal National Mortgage Association) that are not direct obligations of the United States of America or any State thereof and are not obligations guaranteed by the United States of America or any State thereof, in each case which bank, trust company or federally sponsored agency has a combined capital and surplus and undivided profits in excess of $250,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated “ A ” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act);

(d) fully collateralized repurchase obligations with a term of not more than 45 days for securities described in clause (a) above or clause (e), (f) or (g) below and entered into with a financial institution satisfying the criteria described in clause (c) above;

(e) investments in securities issued or fully guaranteed by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof having maturities of not

 

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more than three years from the date of acquisition thereof and, having a rating of at least “ AA ” from S&P or “ Aa ” from Moody’s;

(f) investments in securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and having a rating of at least “ A ” from S&P or from Moody’s;

(g) investments in securities issued by any foreign government or any political subdivision of any foreign government or any public instrumentality thereof having maturities of not more than six months from the date of acquisition thereof and, at the time of acquisition, having one of the two highest credit ratings obtainable from S&P or from Moody’s;

(h) investments in corporate bonds or notes having maturities of not more than five years from the date of acquisition thereof and having a rating of at least “ A ” from S&P or Moody’s;

(i) auction rate preferred stock having maturities of not more than 90 days from the date of acquisition thereof, provided that the long-term senior unsecured debt of the issuer of such preferred stock shall have a rating of at least “ A ” from S&P or from Moody’s;

(j) investments in funds that invest substantially all their assets in one or more types of securities described in clauses (a) through (i) above; and

(k) money market funds that (i) comply with the criteria set forth in Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, and (ii) have portfolio assets of at least $1,000,000,000.

“ cash transaction ” has the meaning assigned to such term in Section 7.03.

“ Certificate of Beneficial Ownership ” means a certificate substantially in the form of Exhibit H.

“ Certificated Note ” means a Note in registered individual form without interest coupons.

“ Change of Control ” means:

(1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) (other than, in the case of the Issuer, the

 

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Company or Seagate HDD) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such person shall be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or the Issuer (for purposes of this clause (1), a person shall be deemed to beneficially own any Voting Stock of a person (the “ specified person ”) held by any other person (the “ parent entity ”) so long as such person is the beneficial owner (as defined in this clause (1)), directly or indirectly, of more than 50% of the voting power of the Voting Stock of the parent entity);

(2) individuals who on the Issue Date constituted the board of directors of the Company or the Issuer, as applicable (together with any new directors whose election by such board of directors of the Company or the Issuer or whose nomination for election by the shareholders of the Company or the Issuer was approved by a vote of a majority of the directors of the Company or the Issuer then still in office who were either directors on the Issue Date or whose election or nomination for election was previously so approved cease for any reason to constitute a majority of the board of directors of the Company or the Issuer then in office;

(3) the adoption of a plan relating to the liquidation or dissolution of the Company or the Issuer; or

(4) the merger or consolidation of the Company or the Issuer with or into another Person or the merger of another Person with or into the Company or the Issuer, or the sale of all or substantially all the assets of the Company or the Issuer (determined on a consolidated basis) to another Person, other than a transaction following which, in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the Company or the Issuer immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such merger or consolidation transaction immediately after such transaction and in substantially the same proportion as before the transaction.

“ Change of Control Triggering Event ” means the occurrence of (x) a Change of Control that is accompanied or followed by a downgrade of the Notes within the Ratings Decline Period by each of Moody’s and S&P (or, in the event S&P or Moody’s or both shall cease rating the Notes (for reasons outside the control of the Company or the Issuer) and the Issuer shall select any other Rating

 

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Agency, the equivalent of such ratings by such other Rating Agency) and (y) the rating of the Notes on any day during such Ratings Decline Period is below the lower of the rating by such Rating Agency in effect (i) immediately preceding the first public announcement of the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement) and (ii) the Issue Date.

“ Clearstream ” means Clearstream Banking, Société Anonyme, Luxembourg and any successor thereto.

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

“ Collateral ” means all assets and property of the Issuer and the Guarantors, required to be pledged pursuant to Article 11, but excluding Excluded Property.

“ Collateral Agent ” means the Trustee in its capacity as the Collateral Agent or any other collateral agent appointed by the Trustee pursuant to the Indenture and the Security Agreements.

“ Collateral Jurisdictions ” means the United States of America (including any State thereof and the District of Columbia), the Cayman Islands, Singapore, The Netherlands and Northern Ireland.

“ Collateral Requirement ” means the requirement that:

(1) all documents and instruments, including Uniform Commercial Code financing statements and mortgages, required by law to be filed, registered or recorded to create the Liens intended to be created by the Security Agreements on the Collateral and perfect or record such Liens as valid Liens with priority set forth in the Security Agreements free of any other Liens except for Permitted Liens, shall have been filed, registered or recorded; and

(2) the Collateral Agent shall have received, with respect to each property required to be subject to a mortgage, counterparts of a mortgage duly executed and delivered by the record owner of such mortgaged property, a lender’s title insurance policy insuring the lien of each mortgage, and an existing survey of the mortgaged property.

“ Commission ” means the Securities and Exchange Commission.

“ Common Stock ” means Capital Stock not entitled to any preference on dividends or distributions, upon liquidation or otherwise.

 

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“ Company ” means the party named as such in the first paragraph of the Indenture or any successor obligor to its obligations under the Indenture and the Notes pursuant to Article 5.

“ Consolidated Net Income ” means, for any period, the aggregate net income (or loss) of the Company and its Restricted Subsidiaries for such period determined on a consolidated basis in conformity with GAAP, after deduction for dividends on Preferred Stock, provided that the following (without duplication) will be excluded in computing Consolidated Net Income:

(1) the net income (but not loss) of any Person that is not a Restricted Subsidiary, except to the extent of dividends or other distributions actually paid in cash to the Company or any of its Restricted Subsidiaries (subject to clause (3) below) by such Person during such period;

(2) any net income (or loss) of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition;

(3) the net income (but not loss) of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such net income would not have been permitted for the relevant period by charter or by any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary;

(4) any net after-tax gains or losses attributable to Asset Sales; and

(5) any net after-tax extraordinary gains or losses and any goodwill impairment charges.

“ Consolidated Total Assets ” means, as of any date, the total assets of the Company and its Restricted Subsidiaries on such date determined on a consolidated basis in accordance with GAAP.

“ Corporate Trust Office ” means the office of the Trustee specified in Section 12.03 hereof or such other address as to which the Trustee may give notice to the Issuer.

“ Credit Facilities ” means one or more credit facilities (including the Senior Credit Facility) with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers’ acceptances or the like.

“ Debt ” means, with respect to any Person, without duplication:

(1) all indebtedness of such Person for borrowed money;

 

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(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments and all obligations of such Person upon which interest charges are customarily paid;

(3) all obligations of such Person under conditional sale or other title retention agreements related to property acquired by such Person;

(4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, excluding current accounts payable incurred in the ordinary course of business and any earn-out obligation not recorded as liabilities under GAAP;

(5) all obligations of such Person as lessee under Capital Leases;

(6) the amount of all Permitted Receivables Financings of such Person;

(7) all Debt of other Persons Guaranteed by such Person to the extent so Guaranteed;

(8) all Debt of other Persons secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person;

(9) all obligations of such Person under Hedging Agreements;

(10) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, or in respect of bankers’ acceptances; and

(11) Disqualified Stock of such Person and its Restricted Subsidiaries and any Preferred Stock of such Person’s Restricted Subsidiaries.

Debt of any Person shall include the Debt of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Debt provide that such Person is not liable therefor. Notwithstanding anything to the contrary in this paragraph, the term “ Debt ” shall not include (i) agreements providing for indemnification, purchase price adjustments or similar obligations incurred or assumed in connection with the acquisition or disposition of assets or stock, (ii) liabilities incurred under the Deferred Compensation Plans or (iii) liabilities customarily incurred in connection with leasing arrangements with respect to platinum and other metals entered into by the Company and its Restricted Subsidiaries in the ordinary course of business.

 

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The amount of Debt of any Person will be deemed to be:

(A) with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation;

(B) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the fair market value of such asset on the date the Lien attached and (y) the amount of such Debt;

(C) with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt;

(D) with respect to any Hedging Agreement permitted to be incurred under clause (5) of Section 4.06(b), zero; with respect to any other Hedging Agreement, the net amount payable if such Hedging Agreement terminated at that time due to default by such Person;

(E) with respect to Disqualified Stock, the greater of its voluntary maximum fixed repurchase price and involuntary maximum fixed repurchase price plus accrued and unpaid dividends, and with respect to Preferred Stock, the liquidation preference thereon plus, without duplication, accrued and unpaid dividends; the “ maximum fixed repurchase price ” of any Disqualified Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Debt will be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock, such fair market value will be determined in good faith by the board of directors of the issuer of such Disqualified Stock; provided that if such Disqualified Stock is not then permitted to be redeemed, repaid or repurchased, the redemption, repayment or repurchase price shall be the book value of such Disqualified Stock as reflected in the most recent financial statements of such Person; and

(F) otherwise, the outstanding principal amount thereof.

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

 

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“ Deferred Compensation Plans ” means (a) the deferred compensation plan dated as of January 1, 2002, of the Company (as amended, waived, supplemented or otherwise modified from time to time), (b) any other plan established in lieu of, or to renew or replace, in whole or in part, any plan referred to in clause (a) above or this clause (b) and (c) any Guarantee by the Company or any Restricted Subsidiary of any obligation under any Deferred Compensation Plan referred to in clause (a) or (b) above.

“ Depositary ” means the depositary of each Global Note, which will initially be DTC.

“ Designated Preferred Stock ” means Preferred Stock of the Company (other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officers’ Certificate on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in Section 4.07(a)(3).

“ Disqualified Equity Interests ” means Equity Interests that by their terms or upon the happening of any event are:

(1) required to be redeemed or redeemable at the option of the holder prior to the Stated Maturity of the Notes for consideration other than Qualified Equity Interests; or

(2) convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Debt;

provided that Equity Interests will not constitute Disqualified Equity Interests solely because of provisions giving holders thereof the right to require repurchase or redemption upon an “ asset sale ” or “ change of control ” occurring prior to the Stated Maturity of the Notes if those provisions:

(A) are no more favorable to the holders than Section 4.12 and Section 4.13, and

(B) specifically state that repurchase or redemption pursuant thereto will not be required prior to the Company’s repurchase of the Notes as required by the Indenture.

“ Disqualified Stock ” means Capital Stock constituting Disqualified Equity Interests.

“ DTC ” means The Depository Trust Company, a New York corporation, and any successor thereto.

 

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“ DTC Legend ” means the legend set forth in Exhibit D.

“ EBITDA ” means, for any period, the sum of:

(1) Consolidated Net Income for such period; plus

(2) consolidated interest expense for such period (including, to the extent not otherwise included in consolidated interest expense for such period, commissions, discounts, yields and other fees, charges and amounts incurred during such period in connection with any Permitted Receivables Financing that are payable to any Person other than the Company or any Restricted Subsidiary and any other amounts for such period comparable to or in the nature of interest under any Permitted Receivables Financing (including losses on the sale of assets relating to any Permitted Receivables Financing accounted for as a “true sale”)), to the extent deducted in calculating Consolidated Net Income and as determined on a consolidated basis for the Company and its Restricted Subsidiaries in conformity with GAAP; plus

(3) to the extent deducted in calculating Consolidated Net Income and as determined on a consolidated basis for the Company and its Restricted Subsidiaries in conformity with GAAP:

(A) consolidated income tax expense for such period;

(B) all amounts attributable to depreciation and amortization for such period;

(C) all extraordinary charges during such period;

(D) non-cash expenses during such period resulting from (i) the grant of stock or stock options to management and employees of the Company or any Restricted Subsidiary or (ii) the treatment of such options under variable plan accounting;

(E) the aggregate amount of deferred financing expenses for such period;

(F) all other non-cash charges, non-cash expenses or non-cash losses of the Company or any Restricted Subsidiary for such period (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period); provided , however , that cash payments made in such period or in any future period (other than payments made under the terms of the Deferred Compensation Plans to, or for the benefit of, participants in such

 

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Deferred Compensation Plans) in respect of such non-cash charges, expenses or losses (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period) shall be subtracted from EBITDA in the period when such payments are made; and

(G) any non-recurring fees, expenses or charges realized by the Company or any Restricted Subsidiary for such period related to any offering of Equity Interests or incurrence of Debt permitted to be issued or incurred under the Indenture (whether or not successful) or any acquisitions or dispositions by the Company or any Restricted Subsidiary permitted hereunder and fees, expenses and charges related to the execution, delivery and performance of the Indenture by the Company and the Issuer; minus

(4) without duplication and to the extent included in determining such Consolidated Net Income and as determined on a consolidated basis for the Company and its Restricted Subsidiaries in conformity with GAAP, (A) any extraordinary gains for such period, (B) interest income for such period and (C) all non-cash items increasing Consolidated Net Income for such period (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period that are described in the parenthetical to clause (3)(F) above).

If the Company or any Restricted Subsidiary has made any Material Acquisition permitted by the Indenture or any Material Sale outside of the ordinary course of business permitted by the Indenture during the period of four consecutive fiscal quarters ending on the date on which the most recent fiscal quarter ended or on or prior to the transaction date, EBITDA for the relevant period shall be calculated for purposes of the Leverage Ratio after giving pro forma effect thereto, as if such Material Acquisition or Material Sale outside of the ordinary course of business (and any related incurrence, repayment or assumption of Debt with any new Debt being deemed to be amortized over the applicable period in accordance with its terms) had occurred on the first day of the relevant period for testing compliance. Any pro forma calculations pursuant to the immediately preceding sentence shall be determined in good faith by the chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of the Company.

“ Enforcement Action ” has the meaning assigned to such term in Section 11.04.

 

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“ Equity Interests ” means all Capital Stock and all warrants or options with respect to, or other rights to purchase, Capital Stock, but excluding Debt (other than Disqualified Stock and Preferred Stock) convertible into equity.

“ Equity Offering ” means any primary public or private offering, after the Issue Date, of Qualified Stock of the Company, the proceeds of which are contributed to the Issuer as common equity.

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

“ Event of Default ” has the meaning assigned to such term in Section 6.01.

“ Excess Proceeds ” has the meaning assigned to such term in Section 4.13.

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

“ Excluded Property ” has the meaning assigned to such term in Section 11.01.

“ expiration date ” has the meaning assigned to such term in Section 3.04.

“ First-Priority Documents ” means any agreement or instrument evidencing Debt that constitutes a First-Priority Lien Obligation, any guarantee of such obligations and any security document securing such obligations.

“ First-Priority Liens ” means all Liens that secure the First-Priority Lien Obligations.

“ First-Priority Lien Obligations ” has the meaning assigned to such term in clause (2) under the definition of “Permitted Liens.”

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

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect as of the Issue Date.

“ Global Note ” means a Note in registered global form without interest coupons.

“ Guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation,

 

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direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part; provided that the term “ Guarantee ” does not include endorsements for collection or deposit in the ordinary course of business. The term “ Guarantee ” used as a verb has a corresponding meaning.

“ Guarantor ” means the Company and each Restricted Subsidiary that Guarantees the Notes in existence on the Issue Date or executes a supplemental indenture in the form of Exhibit B to the Indenture providing for the Guarantee of the payment of the Notes, or any successor obligor under its Note Guaranty pursuant to Article 5, in each case unless and until such Guarantor is released from its Note Guaranty pursuant to the Indenture.

“ Hedging Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, raw materials, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.

“ Holder ” or “ Noteholder ” means the registered holder of any Note.

“ Immaterial Subsidiary ” means, at any date of determination, any Restricted Subsidiary that holds less than 2.5% of the Consolidated Total Assets as of the last day of the fiscal quarter of the Company most recently ended prior to such date.

“ Incur ” means, with respect to any Debt or Capital Stock, to incur, create, issue, assume or Guarantee such Debt or Capital Stock. If any Person becomes a Restricted Subsidiary on any date after the date of the Indenture (including by redesignation of an Unrestricted Subsidiary or failure of an Unrestricted Subsidiary to meet the qualifications necessary to remain an Unrestricted Subsidiary), the Debt and Capital Stock of such Person outstanding on such date will be deemed to have been Incurred by such Person on such date for purposes of Section 4.06, but will not be considered the sale or issuance of Equity Interests for purposes of Section 4.10 or Section 4.13. The accretion of original issue discount or payment of interest in kind will not be considered an Incurrence of Debt.

 

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

“ Initial Purchasers ” means the initial purchasers party to a purchase agreement with the Company, Seagate HDD, Seagate Technology (US) Holdings, Inc. and the Issuer relating to the sale of the Notes by the Issuer.

“ Intercreditor Agreement ” means the Intercreditor Agreement dated on or about the Issue Date among the Collateral Agent, the Administrative Agent, the Issuer, the Company and each other Guarantor named therein, as such agreement may be amended, restated, supplemented, replaced or otherwise modified from time to time.

“ Interest Payment Date ” means each May 1 and November 1 of each year, commencing November 1, 2009.

“ Investment ” means:

(1) any direct or indirect advance, loan or other extension of credit to another Person;

(2) any capital contribution to another Person, by means of any transfer of cash or other property or in any other form;

(3) any purchase or acquisition of Equity Interests, bonds, notes or other Debt, or other instruments or securities issued by another Person, including the receipt of any of the above as consideration for the disposition of assets or rendering of services; or

(4) any Guarantee of any obligation of another Person.

If the Company or any Restricted Subsidiary (x) sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary so that, after giving effect to that sale or disposition, such Person is no longer a Subsidiary of the Company, or (y) designates any Restricted Subsidiary as an Unrestricted Subsidiary in accordance with Section 4.15, all remaining Investments of the Company and the Restricted Subsidiaries in such Person shall be deemed to have been made at such time.

“ Investment Grade ” means, with respect to a debt rating, a rating of Baa3 or higher by Moody’s together with a rating of BBB- or higher by S&P or, in the event S&P or Moody’s or both shall cease issuing a corporate family rating (for reasons outside the control of the Company or the Issuer) and the Issuer shall select any other Rating Agency, the equivalent of such ratings by such other Rating Agency.

 

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“ Issue Date ” means the date on which the Notes are originally issued under the Indenture.

“ Issuer ” means the party named as such in the first paragraph of the Indenture or any successor obligor to its obligations under the Indenture and the Notes pursuant to Article 5.

“ Legal Holiday ” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.

“ Leverage Ratio ” means, on any date (the “ transaction date ”), the ratio of:

(x) Debt of the Company and its Restricted Subsidiaries (excluding the principal amount of any new Debt incurred to refinance old Debt that is outstanding as of such date, to the extent the net proceeds of such new Debt are held in escrow pending repayment of the old Debt) minus the amount of unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries on a consolidated basis, to

(y) the aggregate amount of EBITDA for the four fiscal quarters immediately prior to the transaction date for which internal financial statements are available (the “ reference period ”).

In making the foregoing calculation:

(1) any Debt, Disqualified Stock or Preferred Stock to be repaid or redeemed on the transaction date will be excluded; and

(2) pro forma effect will be given to

(A) the creation, designation or redesignation of Restricted and Unrestricted Subsidiaries, and

(B) the discontinuation of any discontinued operations

that have occurred since the beginning of the reference period as if such events had occurred on the first day of the reference period.

“ Lien ” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or Capital Lease).

 

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“ Material Acquisition ” means, at any time, any acquisition (whether by purchase, merger, consolidation or otherwise) by the Company or any Restricted Subsidiary that is permitted under the Indenture and for which the sum (without duplication) of all consideration paid or otherwise delivered by the Company and its Restricted Subsidiaries in connection with such acquisition (including the principal amount of any Debt issued as deferred purchase price and the fair market value, determined reasonably and in good faith by the Company, of any other non-cash consideration, including Equity Interests in the Company or any Restricted Subsidiary) plus the aggregate principal amount of all Debt otherwise incurred or assumed by the Company or any Restricted Subsidiary in connection with such acquisition (including Debt of any acquired Person outstanding at the time of such acquisition) exceeds the amount that is equal to 5% of Consolidated Total Assets as of the end of the fiscal year of the Company most recently ended at or prior to such time.

“ Material Sale ” means, at any time, any sale, transfer or other disposition of any property or asset of the Company or any Restricted Subsidiary that is permitted under the Indenture and for which all consideration paid or otherwise delivered to the Company and its Restricted Subsidiaries in connection with such sale, transfer or other disposition (including the principal amount of any Debt issued as deferred purchase price and the fair market value, determined reasonably and in good faith by the Company, of any other non-cash consideration, including Equity Interests) plus the aggregate principal amount of all Debt of the Company and its Restricted Subsidiaries assumed by the purchaser of such property or asset in connection with such sale (including Debt of any Person sold, transferred or disposed of by the Company or any Restricted Subsidiary that is assumed by the purchaser of such Person in connection with such sale) exceeds the amount that is equal to 5% of Consolidated Total Assets as of the end of the fiscal year of the Company most recently ended at or prior to such time.

“ Material Subsidiary ” means any Wholly Owned Restricted Subsidiary, except (a) any Immaterial Subsidiary, (b) any Receivables Subsidiary and (c) any Subsidiary that is not required to execute a Note Guaranty under the Indenture.

“ Minimum Size Credit Facility ” means a Senior Credit Facility on any date of determination having an aggregate amount of outstanding borrowings and available commitments thereunder at such time, of at least $200,000,000.

“ Moody’s ” means Moody’s Investors Service, Inc. and its successors.

“ Net Cash Proceeds ” means, with respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash (including (i) payments in respect of deferred payment obligations to the extent corresponding to, principal, but not

 

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interest, when received in the form of cash, and (ii) proceeds from the conversion of other consideration received when converted to cash), net of:

(1) brokerage commissions and other fees and expenses related to such Asset Sale, including fees and expenses of counsel, accountants and investment bankers;

(2) provisions for taxes as a result of such Asset Sale, taking into account the consolidated results of operations of the Company and its Restricted Subsidiaries;

(3) payments required to be made to repay Debt outstanding at the time of such Asset Sale that is secured by a Lien on the property or assets sold (other than property or assets constituting Collateral);

(4) all distributions and other payments required to be made to minority interest holders in the Restricted Subsidiary disposing of such asset as a result of such Asset Sale; and

(5) appropriate amounts to be provided as a reserve against liabilities associated with such Asset Sale, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and indemnification obligations associated with such Asset Sale, with any subsequent reduction of the reserve other than by payments made and charged against the reserved amount to be deemed a receipt of cash.

“ Non-Recourse Debt ” means Debt as to which neither the Company nor any Restricted Subsidiary provides any Guarantee and as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company or any Restricted Subsidiary.

“ Non-U.S. Guarantor ” means each Guarantor that is a Foreign Restricted Subsidiary.

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

“ Notes ” has the meaning assigned to such term in the Recitals.

“ Note Guaranty ” means the guaranty of the Notes by a Guarantor pursuant to the Indenture.

“ Obligations ” means, with respect to any Debt, all obligations (whether in existence on the Issue Date or arising afterwards, absolute or contingent, direct or indirect) for or in respect of principal (when due, upon acceleration, upon redemption, upon mandatory repayment or repurchase pursuant to a mandatory

 

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offer to purchase, or otherwise), premium, interest, penalties, fees, indemnification, reimbursement and other amounts payable and liabilities with respect to such Debt, including all interest accrued or accruing after the commencement of any bankruptcy, insolvency or reorganization or similar case or proceeding at the contract rate (including, without limitation, any contract rate applicable upon default) specified in the relevant documentation, whether or not the claim for such interest is allowed as a claim in such case or proceeding.

“ offer ” has the meaning assigned to such term in Section 3.04.

“ Offer to Purchase ” has the meaning assigned to such term in Section 3.04.

“ Officer ” means the chairman of the board of directors, the president or chief executive officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, of the Company or the Issuer.

“ Officers’ Certificate ” means a certificate signed in the name of the Company or the Issuer, as the case may be, (i) by the chairman of its board of directors, its president or chief executive officer or any vice president and (ii) by its chief financial officer, treasurer or any assistant treasurer or secretary or any assistant secretary.

“ Offshore Global Note ” means a Global Note representing Notes issued and sold pursuant to Regulation S.

“ Opinion of Counsel ” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company or the Issuer, satisfactory to the Trustee.

“ Original Issue Discount Legend ” means the legend set forth in Exhibit J.

“ Paying Agent ” refers to a Person engaged to perform the obligations of the Trustee in respect of payments made or funds held hereunder in respect of the Notes.

“ Permanent Offshore Global Note ” means an Offshore Global Note that does not bear the Temporary Offshore Global Note Legend.

“ Permitted Bank Debt ” has the meaning assigned to such term in Section 4.06.

“Permitted Debt ” has the meaning assigned to such term in Section 4.06.

 

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“ Permitted Encumbrances ” means:

(a) Liens imposed by law for taxes or other governmental charges that are not yet due or are being contested in good faith;

(b) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in good faith;

(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(d) Liens to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e) judgment liens in respect of judgments that do not constitute an Event of Default;

(f) easements, zoning restrictions, licenses, reservations, covenants, utility easements, building restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business and minor defects or irregularities in title that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Restricted Subsidiary;

(g) any interest or title of a lessor under any lease permitted by the Indenture;

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

(i) leases or subleases granted to other Persons and not interfering in any material respect with the business of Intermediate Holdings, the Borrower and the Subsidiaries, taken as a whole;

(j) licenses of intellectual property granted in the ordinary course of business; and

 

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(k) Liens substantially similar to the Liens described in clauses (a) through (j) above and arising by operation of law in any jurisdiction outside of the United States of America,

provided that the term “ Permitted Encumbrances ” shall not include any Lien securing Debt.

“ Permitted Investments ” means:

(1) any Investment in the Company or in a Restricted Subsidiary of the Company; provided that any such Investment by the Company or a Guarantor that has pledged its assets as Collateral in a Restricted Subsidiary that does not pledge its assets as Collateral is made in the ordinary course of business of the Company and its Restricted Subsidiaries;

(2) any Investment in cash and Cash Equivalents;

(3) any Investment by the Company or any Subsidiary of the Company in a Person, if as a result of such Investment,

(A) such Person becomes a Restricted Subsidiary of the Company, or

(B) such Person is merged or consolidated with or into, or transfers or conveys substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary; provided that any such Investment by the Company or a Guarantor that has pledged its assets as Collateral in a Restricted Subsidiary that does not pledge its assets as Collateral is made in the ordinary course of business of the Company and its Restricted Subsidiaries;

(4) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;

(5) Investments received as non-cash consideration in an Asset Sale made pursuant to and in compliance with Section 4.13;

(6) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;

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

 

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(8) Investments in or acquisitions of stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or in satisfaction of judgments;

(9) Investments in the form of Hedging Agreements otherwise permitted under the Indenture;

(10) Investments resulting from a foreclosure by the Company or any Restricted Subsidiary with respect to any secured investment or other transfer of title with respect to any secured Investment in default;

(11) any Investment acquired solely in exchange for Qualified Stock of the Company;

(12) Investments arising as a result of any Permitted Receivables Financing;

(13) prepayments or advances to vendors or suppliers of semiconductors in connection with any guarantee of supply by, or to fund the expansion of supply capacity by, such vendor or supplier, in an aggregate amount not to exceed $50,000,000 at any one time outstanding;

(14) Investments in Unrestricted Subsidiaries in an aggregate amount, taken together with all other Investments made in reliance on this clause, not to exceed the greater of (x) $700,000,000 and (y) 10% of Consolidated Total Assets, measured at the time of the Investment (net of, with respect to the Investment in any particular Person, the cash return thereon received after the Issue Date as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (not included in Consolidated Net Income), not to exceed the amount of Investments in such Person made after the Issue Date in reliance on this clause);

(15) any Investment existing on the Issue Date;

(16) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or licenses or leases of intellectual property, in each case, in the ordinary course of business and otherwise in accordance with the Indenture;

(17) any guarantees by the Company and its Restricted Subsidiaries of leases other than Capital Leases entered into by any Restricted Subsidiary as lessee;

 

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(18) additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause that are at the time outstanding not to exceed the greater of $350,000,000 and 5% of Consolidated Total Assets, at the time of such Investment (with fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); and

(19) other Investments, provided that (a) no Default has occurred and is continuing or would result from any such Investment, (b) in the case of any such Investment in an amount that exceeds $100,000,000, the Leverage Ratio after giving effect to any such Investment on a pro forma basis is not greater than 1.5:1.0 and (c) after giving effect to such Investment, the Available Liquidity shall not be less than $800,000,000.

“ Permitted Liens ” means:

(1) Liens existing on the Issue Date other than Liens securing the Senior Credit Facility;

(2) Liens on the Collateral securing:

(a) the Notes, the Guarantees thereof and other Obligations under the Indenture and in respect thereof and any obligations owing to the Trustee or the Collateral Agent under the Indenture or the Security Agreements; and

(b)(i) Debt incurred under clause (1) of the definition of Permitted Debt (and all Obligations incurred, issued or arising under such secured Credit Facilities that permit borrowings not in excess of the limit set out in such clause (1)) and (ii) Obligations under Hedging Agreements and treasury, depository or other cash management services entered into with agents or lenders under the Debt referred to in clause (i) or their affiliates, (whether or not such Persons remain agents or lenders (or affiliates thereof), after entry into such agreements or arrangements) and (iii) Obligations incurred in connection with leasing arrangements with respect to platinum and other metals entered into in the ordinary course of business entered into with agents or lenders under the Debt referred to in clause(i) or their affiliates (whether or not such Persons remain agents or lenders (or affiliates thereof) after entry into such agreements or arrangements), which Liens incurred under this clause (b) may be on a first-lien priority basis compared to the Notes on terms as set forth in the Intercreditor Agreement (collectively, “ First-Priority Lien Obligations ”);

 

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(3) Permitted Encumbrances;

(4) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of setoff or similar rights;

(5) Liens in favor of a landlord on leasehold improvements in leased premises;

(6) Liens (including the interest of a lessor under a Capital Lease) on property that secure Debt Incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of such property and which attach within 365 days after the date of such purchase or the completion of construction or improvement;

(7) Liens on property of a Person at the time such Person becomes a Restricted Subsidiary of the Company, provided such Liens were not created in contemplation thereof and do not extend to any other property of the Company or any Restricted Subsidiary;

(8) Liens on property at the time the Company or any of the Restricted Subsidiaries acquires such property, including any acquisition by means of a merger or consolidation with or into the Company or a Restricted Subsidiary of such Person, provided such Liens were not created in contemplation thereof and do not extend to any other property of the Company or any Restricted Subsidiary;

(9) Liens securing Hedging Agreements and related guarantees of obligations under such Hedging Agreements, which Hedging Agreements and guarantees are permitted to be Incurred under the Indenture, provided that only assets subject to such Hedging Agreements and proceeds thereof may be subject to such Liens;

(10) extensions, renewals or replacements of any Liens referred to in clauses (1), (6), (7) or (8) in connection with the refinancing of the obligations secured thereby, provided that such Lien does not extend to any other property and, except as contemplated by the definition of “ Permitted Refinancing Debt ,” the amount secured by such Lien is not increased;

(11) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person solely to facilitate the purchase, shipment or storage of such inventory or other goods;

 

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(12) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and the property relating to such letters of credit and products and proceeds thereof;

(13) Liens arising from Uniform Commercial Code financing statement filings by lessors regarding operating leases entered into by such lessors and the Company and its Restricted Subsidiaries in the ordinary course of business;

(14) Liens on and pledges of the capital stock of any Unrestricted Subsidiary securing Non-Recourse Debt of that Unrestricted Subsidiary;

(15) Liens arising under any Permitted Receivables Financing;

(16) Liens arising from Investments in Cash Equivalents of the type described in clause (d) of the definition thereof;

(17) Liens securing obligations in an aggregate amount not exceeding the greater of (x) $100,000,000 and (y) (i) the maximum aggregate principal amount of Debt that would be permitted to be outstanding pursuant to the terms of the Company’s senior notes outstanding prior to the Issue Date or as in effect on the Issue Date (whether or not such senior notes are then outstanding) without being required to equally and ratably secure such senior notes minus (ii) the aggregate amount of outstanding commitments under the Senior Credit Facility at the time such Liens are incurred; provided that not more than $50,000,000 of such obligations may be secured by First-Priority Liens on the Collateral; and

(18) Liens securing liabilities incurred in connection with leasing arrangements with respect to platinum and other metals entered into in the ordinary course of business; provided that only metals related to such leasing arrangements and proceeds thereof may be subject to such Liens.

“ Permitted Receivables Financing ” means any transaction or series of transactions that may be entered into by the Company or any Restricted Subsidiary pursuant to which it may sell, convey, contribute to capital or otherwise transfer (which sale, conveyance, contribution to capital or transfer may include or be supported by the grant of a security interest in) Receivables or interests therein and all collateral securing such Receivables, all contracts and contract rights, purchase orders, security interests, financing statements or other documentation in respect of such Receivables, any guarantees, indemnities, warranties or other obligations in respect of such Receivables, any other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving

 

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receivables similar to such Receivables and any collections or proceeds of any of the foregoing (collectively, the “ Related Assets ”) (a) to a trust, partnership, corporation or other Person (other than the Company or any Subsidiary other than any Receivables Subsidiary), which transfer is funded in whole or in part, directly or indirectly, by the incurrence or issuance by the transferee or any successor transferee of Debt, fractional undivided interests or other securities that are to receive payments from, or that represent interests in, the cash flow derived from such Receivables and Related Assets or interests in such Receivables and Related Assets, or (b) directly to one or more investors or other purchasers (other than the Company or any Subsidiary) it being understood that a Permitted Receivables Financing may involve (i) one or more sequential transfers or pledges of the same Receivables and Related Assets, or interests therein (such as a sale, conveyance or other transfer to any Receivables Subsidiary followed by a pledge of the transferred Receivables and Related Assets to secure Debt incurred by the Receivables Subsidiary), and all such transfers, pledges and Debt incurrences shall be part of and constitute a single Permitted Receivables Financing, and (ii) periodic transfers or pledges of Receivables and/or revolving transactions in which new Receivables and Related Assets, or interests therein, are transferred or pledged upon collection of previously transferred or pledged Receivables and Related Assets, or interests therein, provided that any such transactions shall provide for recourse to such Subsidiary (other than any Receivables Subsidiary) or the Company (as applicable) only in respect of the cash flows in respect of such Receivables and Related Assets and to the extent of breaches of representations and warranties relating to the Receivables, dilution of the Receivables, customary indemnities and other customary securitization undertakings in the jurisdiction relevant to such transactions.

The “ amount ” or “ principal amount ” of any Permitted Receivables Financing shall be deemed at any time to be (1) the aggregate principal or stated amount of the Debt, fractional undivided interests (which stated amount may be described as a “ net investment ” or similar term reflecting the amount invested in such undivided interest) or other securities incurred or issued pursuant to such Permitted Receivables Financing, in each case outstanding at such time, or (2) in the case of any Permitted Receivables Financing in respect of which no such Debt, fractional undivided interests or securities are incurred or issued, the cash purchase price paid by the buyer (other than any Receivables Subsidiary) in connection with its purchase of Receivables less the amount of collections received by the Borrower or any Subsidiary in respect of such Receivables and paid to such buyer, excluding any amounts applied to purchase fees or discount or in the nature of interest.

“ Permitted Refinancing Debt ” has the meaning assigned to such term in Section 4.06.

 

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“ Person ” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, including a government or political subdivision or an agency or instrumentality thereof.

“ Preferred Stock ” means, with respect to any Person, any and all Capital Stock which is preferred as to the payment of dividends or distributions, upon liquidation or otherwise, over another class of Capital Stock of such Person.

“ principal ” of any Debt means the principal amount of such Debt, (or if such Debt was issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt), together with, unless the context otherwise indicates, any premium then payable on such Debt.

“ purchase amount ” has the meaning assigned to such term in Section 3.04.

“ purchase date ” has the meaning assigned to such term in Section 3.04.

“ Qualified Equity Interests ” means all Equity Interests of a Person other than Disqualified Equity Interests.

“ Qualified Stock ” means all Capital Stock of a Person other than Disqualified Stock.

“ Rating Agency ” means a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer (as certified by a resolution of the Board of Directors of the Issuer) which shall be substituted for S&P or Moody’s, or both, as the case may be.

“ Ratings Decline Period ” means the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by the Company, the Issuer or a shareholder of the Issuer or the Company, as applicable, to effect a Change of Control or (b) the occurrence thereof and (ii) ends 60 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Notes, as noted by the applicable rating agency, is under publicly announced consideration for downgrade by the applicable rating agency.

“ Receivables ” means accounts receivable (including all rights to payment created by or arising from the sale of goods, leases of goods or the rendition of services, no matter how evidenced (including in the form of a chattel paper) and whether or not earned by performance.

 

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“ Receivables Subsidiary ” means any Wholly Owned Subsidiary of the Company formed solely for the purpose of, and that engages only in, one or more Permitted Receivables Financings.

“ refinance ” has the meaning assigned to such term in Section 4.06.

“ Register ” has the meaning assigned to such term in Section 2.09.

“ Registrar ” means a Person engaged to maintain the Register.

“ Regular Record Date ” for the interest payable on any Interest Payment Date means the April 15 or October 15 (whether or not a Business Day) next preceding such Interest Payment Date.

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

“ Regulation S Certificate ” means a certificate substantially in the form of Exhibit E hereto.

“ Related Assets ” has the meaning assigned to such term in the definition of the term “Permitted Receivables Financing.”

“ Related Party Transaction ” has the meaning assigned to such term in Section 4.14.

“ Restricted Legend ” means the legend set forth in Exhibit C.

“ Restricted Payment ” has the meaning assigned to such term in Section 4.07.

“ Restricted Period ” means the 40-day distribution compliance period as defined in Regulation S.

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

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

“ Rule 144A Certificate ” means (i) a certificate substantially in the form of Exhibit F hereto or (ii) a written certification addressed to the Issuer and the Trustee to the effect that the Person making such certification (x) is acquiring such Note (or beneficial interest) for its own account or one or more accounts with respect to which it exercises sole investment discretion and that it and each such account is a “qualified institutional buyer” within the meaning of Rule 144A, (y) is aware that the transfer to it or exchange, as applicable, is being made in

 

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reliance upon the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A, and (z) acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A(d)(4) or has determined not to request such information.

“ S&P ” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc. and its successors.

“ Sale and Leaseback Transaction ” means, with respect to any Person, an arrangement whereby such Person enters into a lease of property previously transferred by such Person to the lessor.

“ Seagate HDD ” means Seagate Technology HDD Holdings, an exempted limited liability company organized under the laws of the Cayman Islands and a Subsidiary of the Company.

“ Second-Priority Lien ” means all Liens that secure the Second-Priority Lien Obligations.

“ Second-Priority Lien Obligations ” has the meaning assigned to such term in the Intercreditor Agreement.

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

“ Security Agreements ” means (i) the Intercreditor Agreement (ii) that certain letter agreement dated on or about the Issue Date, among the Collateral Agent, The Bank of Nova Scotia, the Issuer and Seagate HDD, and (iii) the security documents granting a security interest in any assets of any Person to secure the Obligations under the Notes and the Note Guaranties as each may be amended, restated, supplemented or otherwise modified from time to time.

“ self-liquidating paper ” has the meaning assigned to such term in Section 7.03.

“ Senior Credit Facility ” means the second amended and restated credit agreement dated as of April 3, 2009 among the Company, Seagate HDD, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent and the other agents named therein, together with any related documents (including any security documents and guarantee agreements), as such agreement may be amended, modified, supplemented, extended, renewed, refinanced or replaced or substituted from time to time.

“ Significant Restricted Subsidiary ” means (i) the Issuer and (ii) any Restricted Subsidiary, or group of Restricted Subsidiaries, that would, taken together, be a “ significant subsidiary ” as defined in Article 1, Rule 1-02 (w)(1) or (2) of Regulation S-X promulgated under the Securities Act, as such regulation is in effect on the date of the Indenture.

 

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“ Stated Maturity ” means (i) with respect to any Debt, the date specified as the fixed date on which the final installment of principal of such Debt is due and payable or (ii) with respect to any scheduled installment of principal of or interest on any Debt, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled date for payment.

“ Subordinated Debt ” means any Debt of the Issuer or any Guarantor which is subordinated in right of payment to the Notes or the Note Guaranty, as applicable, pursuant to a written agreement to that effect.

“ Subsidiary ” means with respect to any Person, any corporation, association or other business entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more Subsidiaries of such Person (or a combination thereof). Unless otherwise specified, “ Subsidiary ” means a Subsidiary of the Company.

“ Suspended Covenants ” has the meaning assigned to such term in Section 4.19.

“ Temporary Offshore Global Note ” means an Offshore Global Note that bears the Temporary Offshore Global Note Legend.

“ Temporary Offshore Global Note Legend ” means the legend set forth in Exhibit I.

“ Treasury Rate ” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to May 1, 2013; provided , however , that if the period from the redemption date to May 1, 2013 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

“ Trustee ” means the party named as such in the first paragraph of the Indenture or any successor trustee under the Indenture pursuant to Article 7.

“ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended.

 

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“ U.S. Global Note ” means a Global Note that bears the Restricted Legend representing Notes issued and sold pursuant to Rule 144A.

“ U.S. Government Obligations ” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agent or instrumentality thereof, provided that the full faith and credit of the United States of America is pledged in support thereof.

“ Unrestricted Subsidiary ” means any Subsidiary of the Company that at the time of determination has previously been designated, and continues to be, an Unrestricted Subsidiary in accordance with Section 4.15.

“ Voting Stock ” means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.

“ Wholly Owned ” means, with respect to any Restricted Subsidiary, a Restricted Subsidiary all of the outstanding Capital Stock of which (other than any director’s qualifying shares) is owned by the Company and one or more Wholly Owned Restricted Subsidiaries (or a combination thereof).

Section 1.02 . Rules of Construction. Unless the context otherwise requires or except as otherwise expressly provided,

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

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

(3) all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to the Indenture unless otherwise indicated;

(4) references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time (or to successor statutes and regulations); and

(5) in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions the Company may classify such transaction as it, in its sole discretion, determines.

Section 1.03 . Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, as

 

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applicable to this Indenture, the provision is incorporated by reference in and made a part of this Indenture. For the avoidance of any doubt, Trust Indenture Act Section 314 (other than paragraph (b)) shall not be incorporated by reference and made a part of this Indenture. The following Trust Indenture Act terms used in connection with this Indenture have the following meanings:

“ indenture securities ” means the Notes;

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

“ indenture to be qualified ” means this Indenture;

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

“ obligor ” on the Notes and the Note Guaranty means the Issuer and the Guarantors, respectively, and any successor obligor upon the Notes and the Note Guaranties, respectively.

ARTICLE 2

T HE N OTES

Section 2.01 . Form, Dating and Denominations. (a) The Notes and the Trustee’s certificate of authentication will be substantially in the form attached as Exhibit A. The terms and provisions contained in the form of the Notes annexed as Exhibit A constitute, and are hereby expressly made, a part of the Indenture. The Notes may have notations, legends or endorsements required by law, rules of or agreements with national securities exchanges to which the Issuer is subject, or usage. Each Note will be dated the date of its authentication. The Notes will be issuable in denominations of $2,000 in principal amount and any multiple of $1,000 in excess thereof.

(b)(1) Except as otherwise provided in paragraph (c), Section 2.09(b)(4), Section 2.10(b)(3), (b)(5) or (c), each Note (other than a Permanent Offshore Global Note) will bear the Restricted Legend and each Note will bear the Original Issue Discount Legend.

(2) Each Global Note will bear the DTC Legend.

(3) Each Temporary Offshore Global Note will bear the Temporary Offshore Global Note Legend.

(4) Notes offered and sold in reliance on Regulation S will be issued as provided in Section 2.11(a).

 

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(5) Notes offered and sold in reliance on any exception under the Securities Act other than Regulation S and Rule 144A will be issued, and upon the request of the Issuer to the Trustee, Notes offered and sold in reliance on Rule 144A may be issued, in the form of Certificated Notes.

(c) When the Issuer determines (upon the advice of counsel and such other certifications and evidence as the Issuer may reasonably require) that a Note is eligible (without limits) for resale pursuant to Rule 144 under the Securities Act (or a successor provision) the Issuer shall instruct in writing the Trustee to cancel the Notes and issue to the non-affiliate Holders thereof (or to their transferees) new Notes of like tenor and amount, registered in the name of the Holder thereof (or to their transferees), that does not bear the Restricted Legend, and the Trustee will comply with such instruction.

(d) By its acceptance of any Note bearing the Restricted Legend (or any beneficial interest in such a Note), each Holder thereof and each owner of a beneficial interest therein acknowledges the restrictions on transfer of such Note (and any such beneficial interest) set forth in this Indenture and in the Restricted Legend and agrees that it will transfer such Note (and any such beneficial interest) only in accordance with the Indenture and such legend.

Section 2.02 . Execution and Authentication. (a) An Officer shall execute the Notes for the Issuer by facsimile or manual signature in the name and on behalf of the Issuer. If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note will still be valid.

(b) A Note will not be valid until the Trustee manually signs the certificate of authentication on the Note, with the signature conclusive evidence that the Note has been authenticated under the Indenture.

(c) At any time and from time to time after the execution and delivery of the Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee for authentication. The Trustee will authenticate and deliver Notes for original issue in the aggregate principal amount not to exceed $430,000,000, after the following conditions have been met:

(1) Receipt by the Trustee of a written order from the Issuer signed by an Officer specifying:

(A) the amount of Notes to be authenticated and the date on which the Notes are to be authenticated,

(B) whether the Notes are to be issued as one or more Global Notes or Certificated Notes, and

 

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(C) other information the Issuer may determine to include or the Trustee may reasonably request.

Section 2.03 . Registrar, Paying Agent, Authenticating Agent and Collateral Agent; Paying Agent to Hold Money in Trust. (a) The Issuer may appoint one or more Registrars and one or more Paying Agents, and the Trustee may appoint an Authenticating Agent, in which case each reference in the Indenture to the Trustee in respect of the obligations of the Trustee to be performed by that Agent will be deemed to be references to the Agent. The Issuer may act as Registrar or (except for purposes of Article 8) Paying Agent. In each case the Issuer and the Trustee will enter into an appropriate agreement with the Agent implementing the provisions of the Indenture relating to the obligations of the Trustee to be performed by the Agent and the related rights. The Issuer initially appoints the Trustee as Registrar and Paying Agent.

(b) The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of and interest on the Notes and will promptly notify the Trustee of any default by the Issuer in making any such payment. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require the Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent will have no further liability for the money so paid over to the Trustee.

(c) The Trustee is hereby appointed to act as the Collateral Agent under the Security Agreements, with such powers, rights and obligations as are expressly delegated to the Collateral Agent by the terms of the Indenture and by the Security Agreements. The Issuer may, from time to time, appoint another financial institution to act as Collateral Agent so long as such institution meets the requirements of Section 7.10. The Collateral Agent, acting in its capacity as such, shall have only such duties with respect to the Collateral as are set forth in the Security Agreements.

(d) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this subsection, the Collateral Agent (if other than the Trustee) may resign at any time by notifying the Trustee and the Issuer. Upon any such resignation, the Issuer shall appoint a successor Collateral Agent. If no successor shall have been so appointed or shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, at the expense of the Issuer, petition a court of competent jurisdiction for the appointment of a successor Collateral Agent which shall meet the eligibility requirements of Section 2.03(c) and shall

 

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accept and comply in all material respects with the Security Agreements. Upon a successor’s acceptance of its appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent hereunder and under the Security Agreements, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the Security Agreements. If the Trustee shall be acting at any time as the Collateral Agent, then it will be deemed to have resigned as Collateral Agent upon its replacement as Trustee pursuant to Section 7.08, and the Issuer shall select the replacement Collateral Agent and may appoint any such successor Trustee as the successor Collateral Agent.

(e) At all times when the Trustee is not itself the Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Agreements delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Security Agreements.

Section 2.04 . Replacement Notes. If a mutilated Note is surrendered to the Trustee or if a Holder claims that its Note has been lost, destroyed or wrongfully taken, the Issuer will issue and the Trustee will authenticate a replacement Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. Every replacement Note is an additional obligation of the Issuer and entitled to the benefits of the Indenture. The requesting Holder must furnish an indemnity that is sufficient in the judgment of both the Trustee and the Issuer to protect the Issuer and the Trustee from any loss they may suffer if a Note is replaced. The Issuer may charge the Holder for the expenses of the Issuer and the Trustee in replacing a Note. In case the mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its discretion may pay the Note instead of issuing a replacement Note.

Section 2.05 . Outstanding Notes. (a) Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for:

(1) Notes cancelled by the Trustee or delivered to it for cancellation;

(2) any Note which has been replaced pursuant to Section 2.04 unless and until the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a bona fide purchaser; and

(3) on or after the maturity date or any redemption date or date for purchase of the Notes pursuant to an Offer to Purchase, those Notes payable or to be redeemed or purchased on that date for which the Trustee (or Paying Agent, other than the Issuer or an Affiliate of the Issuer) holds money sufficient to pay all amounts then due.

 

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(b) A Note does not cease to be outstanding because the Issuer or one of its Affiliates holds the Note, provided that in determining whether the Holders of the requisite principal amount of the outstanding Notes have given or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, Notes owned by the Issuer or any Affiliate of the Issuer will be disregarded and deemed not to be outstanding, (it being understood that in determining whether the Trustee is protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Notes which a responsible officer of the Trustee actually knows to be so owned will be so disregarded). Notes so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any Affiliate of the Issuer.

Section 2.06 . Temporary Notes. Until definitive Notes are ready for delivery, the Issuer may prepare and the Trustee will authenticate temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have insertions, substitutions, omissions and other variations determined to be appropriate by the Officer executing the temporary Notes, as evidenced by the execution of the temporary Notes. If temporary Notes are issued, the Issuer will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer designated for the purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any temporary Notes the Issuer will execute and the Trustee will authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes will be entitled to the same benefits under the Indenture as definitive Notes.

Section 2.07 . Cancellation. The Issuer at any time may deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Notes previously authenticated hereunder which the Issuer has not issued and sold. Any Registrar or the Paying Agent will forward to the Trustee any Notes surrendered to it for transfer, exchange or payment. The Trustee will cancel all Notes surrendered for transfer, exchange, payment or cancellation and dispose of them in accordance with its normal procedures. The Issuer may not issue new Notes to replace Notes it has paid in full or delivered to the Trustee for cancellation.

Section 2.08 . CUSIP Numbers. The Issuer in issuing the Notes may use “CUSIP” numbers, and the Trustee will use CUSIP numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Holders, the notice to state that no representation is made as to the correctness of such numbers

 

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either as printed on the Notes or as contained in any notice of redemption or exchange or Offer to Purchase. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP numbers.

Section 2.09 . Registration, Transfer and Exchange. (a) The Notes will be issued in registered form only, without coupons, and the Issuer shall cause the Trustee to maintain a register (the “ Register ”) of the Notes, for registering the record ownership of the Notes by the Holders and transfers and exchanges of the Notes.

(b)(1) Each Global Note will be registered in the name of the Depositary or its nominee and, so long as DTC is serving as the Depositary thereof, will bear the DTC Legend.

(2) Each Global Note will be delivered to the Trustee as custodian for the Depositary. Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to the Depositary, its successors or their respective nominees, except (1) as set forth in Section 2.09(b)(4) and (2) transfers of portions thereof in the form of Certificated Notes may be made upon request of an Agent Member (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section and Section 2.10.

(3) Agent Members will have no rights under the Indenture with respect to any Global Note held on their behalf by the Depositary, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, the Depositary or its nominee may grant proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Note through an Agent Member) to take any action which a Holder is entitled to take under the Indenture or the Notes, and nothing herein will impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any security.

(4) If (x) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for a Global Note and a successor depositary is not appointed by the Issuer within 90 days of the notice or (y) an Event of Default has occurred and is continuing and the Trustee has received a request from the Depositary, the Trustee will promptly exchange each beneficial interest in the Global Note for one or more Certificated Notes in authorized denominations having an equal

 

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aggregate principal amount registered in the name of the owner of such beneficial interest, as identified to the Trustee by the Depositary, and thereupon the Global Note will be deemed canceled. If such Note does not bear the Restricted Legend, then the Certificated Notes issued in exchange therefor will not bear the Restricted Legend. If such Note bears the Restricted Legend, then the Certificated Notes issued in exchange therefor will bear the Restricted Legend, provided that any Holder of any such Certificated Note issued in exchange for a beneficial interest in a Temporary Offshore Global Note will have the right upon presentation to the Trustee of a duly completed Certificate of Beneficial Ownership after the Restricted Period to exchange such Certificated Note for a Certificated Note of like tenor and amount that does not bear the Restricted Legend, registered in the name of such Holder.

(c) Each Certificated Note will be registered in the name of the holder thereof or its nominee.

(d) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by Section 2.10. The Trustee will promptly register any transfer or exchange that meets the requirements of this Section by noting the same in the register maintained by the Trustee for the purpose; provided that:

(x) no transfer or exchange will be effective until it is registered in such register; and

(y) the Trustee will not be required (i) to issue, register the transfer of or exchange any Note for a period of 15 days before the mailing of a notice of redemption of Notes to be redeemed or purchased pursuant to an Offer to Purchase, (ii) to register the transfer of or exchange any Note so selected for redemption or purchase in whole or in part, except, in the case of a partial redemption or purchase, that portion of any Note not being redeemed or purchased, or (iii) if a redemption or a purchase pursuant to an Offer to Purchase is to occur after a Regular Record Date but on or before the corresponding Interest Payment Date, to register the transfer of or exchange any Note on or after the Regular Record Date and before the date of redemption or purchase. Prior to the registration of any transfer, the Issuer, the Trustee and their agents will treat the Person in whose name the Note is registered as the owner and Holder thereof for all purposes (whether or not the Note is overdue), and will not be affected by notice to the contrary.

 

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From time to time the Issuer will execute and the Trustee will authenticate additional Notes as necessary in order to permit the registration of a transfer or exchange in accordance with this Section.

No service charge will be imposed in connection with any transfer or exchange of any Note, but the Issuer or the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than a transfer tax or other similar governmental charge payable upon exchange pursuant to subsection (b)(4)).

(e)(1) Global Note to Global Note . If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Trustee will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.

(2) Global Note to Certificated Note . If a beneficial interest in a Global Note is transferred or exchanged for a Certificated Note, the Trustee will (x) record a decrease in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (y) deliver one or more new Certificated Notes in authorized denominations having an equal aggregate principal amount to the transferee (in the case of a transfer) or the owner of such beneficial interest (in the case of an exchange), registered in the name of such transferee or owner, as applicable.

(3) Certificated Note to Global Note . If a Certificated Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will (x) cancel such Certificated Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or more new Certificated Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Certificated Note, registered in the name of the Holder thereof.

 

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(4) Certificated Note to Certificated Note . If a Certificated Note is transferred or exchanged for another Certificated Note, the Trustee will (x) cancel the Certificated Note being transferred or exchanged, (y) deliver one or more new Certificated Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Certificated Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or more Certificated Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Certificated Note, registered in the name of the Holder thereof.

Section 2.10 . Restrictions on Transfer and Exchange. (a) The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this Section and Section 2.09 and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of the Depositary, Euroclear and Clearstream. The Trustee shall refuse to register any requested transfer or exchange that does not comply with the preceding sentence.

(b) Subject to paragraph (c), the transfer or exchange of any Note (or a beneficial interest therein) of the type set forth in column A below for a Note (or a beneficial interest therein) of the type set forth opposite in column B below may only be made in compliance with the certification requirements (if any) described in the clause of this paragraph set forth opposite in column C below.

 

(1)	No certification is required.

 

(2)

The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee a duly completed Regulation S Certificate; provided that if the requested transfer or exchange is made by the Holder of a Certificated Note that does not bear the Restricted Legend, then no certification is required.

 

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(3)

The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee (x) a duly completed Rule 144A Certificate, (y) a duly completed Regulation S Certificate or (z) a duly completed Institutional Accredited Investor Certificate, and/or an Opinion of Counsel and such other certifications and evidence as the Issuer may reasonably require in order to determine that the proposed transfer or exchange is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States; provided that if the requested transfer or exchange is made by the Holder of a Certificated Note that does not bear the Restricted Legend, then no certification is required. In the event that (i) the requested transfer or exchange takes place after the Restricted Period and a duly completed Regulation S Certificate is delivered to the Trustee or (ii) a Certificated Note that does not bear the Restricted Legend is surrendered for transfer or exchange, upon transfer or exchange the Trustee will deliver a Certificated Note that does not bear the Restricted Legend.

 

(4)	The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee a duly completed Rule 144A Certificate.

 

(5)

Notwithstanding anything to the contrary contained herein, no such exchange is permitted if the requested exchange involves a beneficial interest in a Temporary Offshore Global Note. If the requested transfer involves a beneficial interest in a Temporary Offshore Global Note, the Person requesting the transfer must deliver or cause to be delivered to the Trustee a duly completed (x) Rule 144A Certificate or (y) a duly completed Institutional Accredited Investor Certificate and/or an Opinion of Counsel and such other certifications and evidence as the Company may reasonably require in order to determine that the proposed transfer is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States. If the requested transfer or exchange involves a beneficial interest in a Permanent Offshore Global Note, no certification is required and the Trustee will deliver a Certificated Note that does not bear the Restricted Legend.

(c) No certification is required in connection with any transfer or exchange of any Note (or a beneficial interest therein) after such Note is eligible for resale pursuant to Rule 144 under the Securities Act (or a successor provision); provided that the Issuer may require from any Person requesting a transfer or exchange in reliance upon this Section 2.10(c) an opinion of counsel and any other reasonable certifications and evidence in order to support such certificate. Any Certificated Note delivered in reliance upon this paragraph will not bear the Restricted Legend.

 

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(d) The Trustee will retain copies of all certificates, opinions and other documents received in connection with the transfer or exchange of a Note (or a beneficial interest therein), and the Issuer will have the right to inspect and make copies thereof at any reasonable time upon written notice to the Trustee.

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

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

(g) Neither the Trustee nor any Agent Member shall have any responsibility for any actions taken or not taken by the Depositary.

Section 2.11 . Temporary Offshore Global Notes. (a) Each Note originally sold by the Initial Purchasers in reliance upon Regulation S will be evidenced by one or more Offshore Global Notes that bear the Temporary Offshore Global Note Legend.

(b) An owner of a beneficial interest in a Temporary Offshore Global Note (or a Person acting on behalf of such an owner) may provide to the Trustee (and the Trustee will accept) a duly completed Certificate of Beneficial Ownership at any time after the Restricted Period (it being understood that the Trustee will not accept any such certificate during the Restricted Period). Promptly after acceptance of a Certificate of Beneficial Ownership with respect to such a beneficial interest, the Trustee will cause such beneficial interest to be exchanged for an equivalent beneficial interest in a Permanent Offshore Global Note, and will (x) permanently reduce the principal amount of such Temporary Offshore Global Note by the amount of such beneficial interest and (y) increase the principal amount of such Permanent Offshore Global Note by the amount of such beneficial interest.

(c) Notwithstanding paragraph (b), if after the Restricted Period any Initial Purchaser owns a beneficial interest in a Temporary Offshore Global Note, such Initial Purchaser may, upon written request to the Trustee accompanied by a certification as to its status as an Initial Purchaser, exchange such beneficial

 

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interest for an equivalent beneficial interest in a Permanent Offshore Global Note, and the Trustee will comply with such request and will (x) permanently reduce the principal amount of such Temporary Offshore Global Note by the amount of such beneficial interest and (y) increase the principal amount of such Permanent Offshore Global Note by the amount of such beneficial interest.

(d) Notwithstanding anything to the contrary contained herein, any owner of a beneficial interest in a Temporary Offshore Global Note shall not be entitled to receive payment of principal or interest on such beneficial interest or other amounts in respect of such beneficial interest until such beneficial interest is exchanged for an interest in a Permanent Offshore Global Note or transferred for an interest in another Global Note or a Certificated Note.

ARTICLE 3

R EDEMPTION ; O FFER TO P URCHASE

Section 3.01 . Optional Redemption. At any time and from time to time prior to the May 1, 2013, upon not less than 30 nor more than 60 days’ notice, the Issuer may redeem some or all of the Notes, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium plus accrued and unpaid interest, if any, to the redemption date.

At any time and from time to time on or after May 1, 2013, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus a premium equal to one-half the annual coupon thereon and accrued and unpaid interest, if any, to the redemption date.

Section 3.02 . Redemption with Proceeds of Public Equity Offering. At any time and from time to time prior to May 1, 2012, the Issuer may, at its option on one or more occasions, redeem Notes in an aggregate principal amount not to exceed 35% of the aggregate principal amount of the Notes originally issued with the net cash proceeds received by the Issuer from one or more Equity Offerings at a redemption price equal to 110% of the principal amount thereof plus accrued and unpaid interest, if any, to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), provided , however , that after giving effect to any such redemption:

(1) at least 65% of such aggregate principal amount of Notes remains outstanding immediately after the occurrence of each such redemption (other than Notes held, directly or indirectly by the Company or its Affiliates), and

(2) in each case the redemption takes place not later within 90 days after the closing of the related offering of Qualified Equity Interests.

 

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Section 3.03 . Method and Effect of Redemption. (a) If the Issuer elects to redeem Notes, it must notify the Trustee of the redemption date and the principal amount of Notes to be redeemed by delivering an Officers’ Certificate at least 60 days before the redemption date (unless a shorter period is satisfactory to the Trustee). If fewer than all of the Notes are being redeemed, the Officers’ Certificate must also specify a record date not less than 15 days after the date of the notice of redemption is given to the Trustee, and the Trustee will select the Notes to be redeemed pro rata , by lot or by any other method the Trustee in its sole discretion deems fair and appropriate, in accordance with the procedures of DTC, in multiples of $1,000 principal amount. The Trustee will notify the Issuer promptly of the Notes or portions of Notes to be called for redemption. Notice of redemption must be sent by the Issuer or at the Issuer’s request, by the Trustee in the name and at the expense of the Issuer, to Holders whose Notes are to be redeemed at least 30 days but not more than 60 days before the redemption date, except that a notice of redemption may be sent more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture in accordance with the provisions of Article 8.

(b) The notice of redemption will identify the Notes (including CUSIP numbers) to be redeemed and will include or state the following:

(1) the redemption date;

(2) the redemption price, including the portion thereof representing any accrued and unpaid interest;

(3) the place or places where Notes are to be surrendered for redemption;

(4) Notes called for redemption must be so surrendered in order to collect the redemption price;

(5) on the redemption date the redemption price will become due and payable on Notes called for redemption, and interest on Notes called for redemption will cease to accrue on and after the redemption date;

(6) if any Note is redeemed in part, on and after the redemption date, upon surrender of such Note, new Notes equal in principal amount to the unredeemed portion will be issued; and

(7) if any Note contains a CUSIP number, no representation is being made as to the correctness of the CUSIP number either as printed on the Notes or as contained in the notice of redemption and that the Holder should rely only on the other identification numbers printed on the Notes.

 

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(c) Once notice of redemption is sent to the Holders, Notes called for redemption become due and payable at the redemption price on the redemption date, and upon surrender of the Notes called for redemption, the Issuer shall redeem such Notes at the redemption price. Commencing on the redemption date, Notes redeemed will cease to accrue interest. Upon surrender of any Note redeemed in part, the Holder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note.

Section 3.04 . Offer to Purchase. (a) An “ Offer to Purchase ” means an offer by the Issuer or the Company to purchase Notes as required by the Indenture. An Offer to Purchase must be made by written offer (the “ offer ”) sent to the Holders. The Issuer or the Company will notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to sending the offer to Holders of its obligation to make an Offer to Purchase, and the offer will be sent by the Company or the Issuer or, at the Company’s or the Issuer’s request, by the Trustee in the name and at the expense of the Company or the Issuer.

(b) The offer must include or state the following as to the terms of the Offer to Purchase:

(1) the provision of the Indenture pursuant to which the Offer to Purchase is being made;

(2) the aggregate principal amount of the outstanding Notes offered to be purchased by the Company or the Issuer pursuant to the Offer to Purchase (including, if less than 100%, the manner by which such amount has been determined pursuant to the Indenture) (the “ purchase amount ”);

(3) the purchase price, including the portion thereof representing accrued and unpaid interest;

(4) an expiration date (the “ expiration date ”) not less than 30 days or more than 60 days after the date of the offer, and a settlement date for purchase (the “ purchase date ”) not more than five Business Days after the expiration date;

(5) information concerning the business of the Company and its Subsidiaries (which information may be incorporated by reference in such Offer to Purchase), which the Company or the Issuer, as applicable, in good faith believes will enable the Holders to make an informed decision with respect to the Offer to Purchase, at a minimum to include:

(A) the most recent annual and quarterly financial statements and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for the Company,

 

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(B) a description of material developments in the Company’s business subsequent to the date of the latest of the financial statements (including a description of the events requiring the Company to make the Offer to Purchase), and

(C) if applicable, appropriate pro forma financial information concerning the Offer to Purchase and the events requiring the Company or the Issuer to make the Offer to Purchase;

(6) a Holder may tender all or any portion of its Notes pursuant to an Offer to Purchase, subject to the requirement that any portion of a Note tendered must be in a multiple of $1,000 principal amount;

(7) the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase;

(8) each Holder electing to tender a Note pursuant to the offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Company, the Issuer or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer);

(9) interest on any Note not tendered, or tendered but not purchased by the Company or the Issuer pursuant to the Offer to Purchase, will continue to accrue;

(10) on the purchase date the purchase price will become due and payable on each Note accepted for purchase pursuant to the Offer to Purchase, and interest on Notes purchased will cease to accrue on and after the purchase date;

(11) Holders are entitled to withdraw Notes tendered by giving notice, which must be received by the Company or the Issuer, as applicable, or the Trustee not later than the close of business on the expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender;

(12)(i) if Notes in an aggregate principal amount less than or equal to the purchase amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Company or the Issuer, as applicable, will purchase all such Notes, and (ii) if the Offer to Purchase is

 

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for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company or the Issuer, as applicable, will purchase Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that only Notes in multiples of $1,000 principal amount will be purchased;

(13) if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and

(14) if any Note contains a CUSIP number, no representation is being made as to the correctness of the CUSIP number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes.

(c) Prior to the purchase date, the Company or the Issuer, as applicable, will accept tendered Notes for purchase as required by the Offer to Purchase and deliver to the Trustee all Notes so accepted together with an Officers’ Certificate specifying which Notes have been accepted for purchase. On the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part.

(d) The Company or the Issuer, as applicable, will comply with Rule 14e-1 under the Exchange Act and all other applicable laws in making any Offer to Purchase, and the above procedures will be deemed modified as necessary to permit such compliance.

ARTICLE 4

C OVENANTS

Section 4.01 . Payment of Notes. (a) The Issuer agrees to pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and the Indenture. Not later than 11:00 A.M. (New York City time) on the due date of any principal of or interest on any Notes, or any redemption or purchase price of the Notes, the Issuer will deposit with the Trustee (or Paying Agent) money in immediately available funds sufficient to pay such amounts, provided that if the Issuer or any Affiliate of the Issuer is acting as Paying Agent, it will, on or before each due date, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in the Indenture. In each case the Issuer will promptly notify the Trustee of its compliance with this paragraph.

 

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(b) An installment of principal or interest will be considered paid on the date due if the Trustee (or Paying Agent, other than the Issuer or any Affiliate of the Issuer) holds on that date money designated for and sufficient to pay the installment. If the Issuer or any Affiliate of the Issuer acts as Paying Agent, an installment of principal or interest will be considered paid on the due