exv4w1



 




Exhibit 4.1


Execution Version




 




 




RURAL CELLULAR CORPORATION



FLOATING RATE SENIOR SUBORDINATED NOTES DUE 2013



 




INDENTURE



Dated as of May 30, 2007



 




Wells Fargo Bank, N.A.




Trustee



 




 






 









 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	12.03
	(c)
	 	12.03
	313(a)
	 	7.06
	(b)(1)
	 	N.A
	(b)(2)
	 	7.06; 7.07
	(c)
	 	7.06; 12.02
	(d)
	 	7.06
	314(a)
	 	4.03; 12.05
	(b)
	 	N.A.
	(c)(1)
	 	N.A.
	(c)(2)
	 	N.A.
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	12.05
	(f)
	 	N.A.
	315(a)
	 	N.A.
	(b)
	 	N.A.
	(c)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	N.A.
	316(a) (last sentence)
	 	N.A.
	(a)(1)(A)
	 	N.A.
	(a)(1)(B)
	 	N.A.
	(a)(2)
	 	N.A.
	(b)
	 	N.A.
	(c)
	 	N.A.
	317(a)(1)
	 	N.A.
	(a)(2)
	 	N.A.
	(b)
	 	N.A.
	318(a)
	 	N.A.
	(b)
	 	N.A.
	(c)
	 	12.01








 




			
	N.A. means not applicable.
	 
	*	 	This Cross Reference Table is not part of the Indenture.






 









 








               TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	DEFINITIONS AND INCORPORATION
	 	 	 	 
	BY REFERENCE
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Other Definitions
	 	 	24	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	25	 
	Section 1.04 Rules of Construction
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 2 
	 	 	 	 
	THE NOTES 
	 	 	 	 
	 
	 	 	 	 
	Section 2.01 Form and Dating
	 	 	26	 
	Section 2.02 Execution and Authentication
	 	 	26	 
	Section 2.03 Registrar and Paying Agent
	 	 	27	 
	Section 2.04 Paying Agent to Hold Money in Trust
	 	 	27	 
	Section 2.05 Holder Lists
	 	 	27	 
	Section 2.06 Transfer and Exchange
	 	 	27	 
	Section 2.07 Replacement Notes
	 	 	39	 
	Section 2.08 Outstanding Notes
	 	 	39	 
	Section 2.09 Treasury Notes
	 	 	39	 
	Section 2.10 Temporary Notes
	 	 	40	 
	Section 2.11 Cancellation
	 	 	40	 
	Section 2.12 Defaulted Interest
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 3 
	 	 	 	 
	REDEMPTION AND PREPAYMENT 
	 	 	 
	 
	 	 	 	 
	Section 3.01 Notices to Trustee
	 	 	40	 
	Section 3.02 Selection of Notes to Be Redeemed or Purchased
	 	 	41	 
	Section 3.03 Notice of Redemption
	 	 	41	 
	Section 3.04 Effect of Notice of Redemption
	 	 	42	 
	Section 3.05 Deposit of Redemption or Purchase Price
	 	 	42	 
	Section 3.06 Notes Redeemed or Purchased in Part
	 	 	42	 
	Section 3.07 Optional Redemption
	 	 	42	 
	Section 3.08 Mandatory Redemption
	 	 	43	 
	Section 3.09 Offer to Purchase by Application of Excess Proceeds
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 4 
	 	 	 	 
	COVENANTS
	 	 	 	 
	 
	 	 	 	 
	Section 4.01 Payment of Notes
	 	 	45	 
	Section 4.02 Maintenance of Office or Agency
	 	 	45	 
	Section 4.03 Reports
	 	 	46	 
	Section 4.04 Compliance Certificate
	 	 	47	 
	Section 4.05 Taxes
	 	 	47	 
	Section 4.06 Stay, Extension and Usury Laws
	 	 	47	 
	Section 4.07 Restricted Payments
	 	 	48	 
	Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	51	 
	Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	52	 






 









 







	 	 	 	 	 
	 	 	Page
	Section 4.10 Asset Sales
	 	 	55	 
	Section 4.11 Transactions with Affiliates
	 	 	57	 
	Section 4.12 Liens
	 	 	58	 
	Section 4.13 Business Activities
	 	 	58	 
	Section 4.14 Corporate Existence
	 	 	58	 
	Section 4.15 Offer to Repurchase Upon Change of Control
	 	 	58	 
	Section 4.16 No Layering of Debt
	 	 	60	 
	Section 4.17 Payments for Consent
	 	 	60	 
	Section 4.18 Designation of Restricted and Unrestricted Subsidiaries
	 	 	60	 
	Section 4.19 Changes in Covenants when Notes Rated Investment Grade
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	SUCCESSORS
	 	 	 	 
	 
	 	 	 	 
	Section 5.01 Merger, Consolidation, or Sale of Assets
	 	 	62	 
	Section 5.02 Successor Corporation Substituted
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	63	 
	Section 6.02 Acceleration
	 	 	65	 
	Section 6.03 Other Remedies
	 	 	65	 
	Section 6.04 Waiver of Past Defaults
	 	 	65	 
	Section 6.05 Control by Majority
	 	 	65	 
	Section 6.06 Limitation on Suits
	 	 	66	 
	Section 6.07 Rights of Holders of Notes to Receive Payment
	 	 	66	 
	Section 6.08 Collection Suit by Trustee
	 	 	66	 
	Section 6.09 Trustee May File Proofs of Claim
	 	 	66	 
	Section 6.10 Priorities
	 	 	67	 
	Section 6.11 Undertaking for Costs
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 7 
	 	 	 	 
	TRUSTEE 
	 	 	 	 
	 
	 	 	 	 
	Section 7.01 Duties of Trustee
	 	 	67	 
	Section 7.02 Rights of Trustee
	 	 	68	 
	Section 7.03 Individual Rights of Trustee
	 	 	69	 
	Section 7.04 Trustee’s Disclaimer
	 	 	69	 
	Section 7.05 Notice of Defaults
	 	 	70	 
	Section 7.06 Reports by Trustee to Holders of the Notes
	 	 	70	 
	Section 7.07 Compensation and Indemnity
	 	 	70	 
	Section 7.08 Replacement of Trustee
	 	 	71	 
	Section 7.09 Successor Trustee by Merger, etc.
	 	 	72	 
	Section 7.10 Eligibility; Disqualification
	 	 	72	 
	Section 7.11 Preferential Collection of Claims Against Company
	 	 	72	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 	 
	 
	 	 	 	 
	Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	72	 
	Section 8.02 Legal Defeasance and Discharge
	 	 	72	 
	Section 8.03 Covenant Defeasance
	 	 	73	 
	Section 8.04 Conditions to Legal or Covenant Defeasance
	 	 	73	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
	 	 	74	 
	Section 8.06 Repayment to Company
	 	 	75	 
	Section 8.07 Reinstatement
	 	 	75	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	 	 
	 
	 	 	 	 
	Section 9.01 Without Consent of Holders of Notes
	 	 	76	 
	Section 9.02 With Consent of Holders of Notes
	 	 	76	 
	Section 9.03 Compliance with Trust Indenture Act
	 	 	78	 
	Section 9.04 Revocation and Effect of Consents
	 	 	78	 
	Section 9.05 Notation on or Exchange of Notes
	 	 	78	 
	Section 9.06 Trustee to Sign Amendments, etc.
	 	 	78	 
	 
	 	 	 	 
	ARTICLE 10 
	 	 	 	 
	SUBORDINATION
	 	 	 	 
	 
	 	 	 	 
	Section 10.01 Agreement to Subordinate
	 	 	78	 
	Section 10.02 Liquidation; Dissolution; Bankruptcy
	 	 	79	 
	Section 10.03 Default on Designated Senior Debt
	 	 	79	 
	Section 10.04 Acceleration of Notes
	 	 	80	 
	Section 10.05 When Distribution Must Be Paid Over
	 	 	80	 
	Section 10.06 Notice by Company
	 	 	80	 
	Section 10.07 Subrogation
	 	 	80	 
	Section 10.08 Relative Rights
	 	 	81	 
	Section 10.09 Subordination May Not Be Impaired by Company
	 	 	81	 
	Section 10.10 Distribution or Notice to Representative
	 	 	81	 
	Section 10.11 Rights of Trustee and Paying Agent
	 	 	81	 
	Section 10.12 Authorization to Effect Subordination
	 	 	82	 
	Section 10.13 Amendments
	 	 	82	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	SATISFACTION AND DISCHARGE
	 	 	 	 
	 
	 	 	 	 
	Section 11.01 Satisfaction and Discharge
	 	 	82	 
	Section 11.02 Application of Trust Money
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	Section 12.01 Trust Indenture Act Controls
	 	 	83	 
	Section 12.02 Notices
	 	 	83	 
	Section 12.03 Communication by Holders of Notes with Other Holders of Notes
	 	 	85	 
	Section 12.04 Certificate and Opinion as to Conditions Precedent
	 	 	85	 
	Section 12.05 Statements Required in Certificate or Opinion
	 	 	85	 
	Section 12.06 Rules by Trustee and Agents
	 	 	85	 
	Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	85	 
	Section 12.08 Governing Law
	 	 	86	 
	Section 12.09 No Adverse Interpretation of Other Agreements
	 	 	86	 
	Section 12.10 Successors
	 	 	86	 
	Section 12.11 Severability
	 	 	86	 
	Section 12.12 Counterpart Originals
	 	 	86	 
	Section 12.13 Table of Contents, Headings, etc.
	 	 	86	 






iii









 






EXHIBITS




	 	 	 
	Exhibit A

	 	FORM OF NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR






iv









 





     INDENTURE dated as of May 30, 2007 between Rural Cellular Corporation, a Minnesota
corporation, and Wells Fargo Bank, N.A., a national banking association, as trustee.



     The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders (as defined) of the Floating Rate Senior Subordinated Notes due
2013 (the “Notes”):



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01 Definitions.




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



     “Acquired Debt” means, with respect to any specified Person, Indebtedness of any other Person
existing at the time such other Person is merged with or into or became a Subsidiary of such
specified Person, other than Indebtedness that is incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified
Person.



     “Additional Notes” means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the
Initial Notes.



     “Additional Senior Subordinated Exchange Debentures” means the senior subordinated exchange
debentures that may be issued by the Company in accordance with the terms of the Junior
Exchangeable Preferred Stock in effect on the Issue Date.



     “Adjusted Operating Cash Flow Ratio” of any Person means the Operating Cash Flow Ratio of such
Person as adjusted to treat all Preferred Stock of such Person as Disqualified Stock.



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



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



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




     (1) 1.0% of the principal amount of the Note; or




     (2) the excess of:




     (A) the present value at such redemption date of (i) the redemption price of
the Note at June 1, 2008, (such redemption price being set forth in the table
appearing in



1









 







Section 3.07 hereof) plus (ii) all required interest payments due on the Note
through June 1, 2008, (excluding accrued but unpaid interest 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 the note, if greater.



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



     “Asset Sale” means:




     (1) the sale, lease, conveyance or other disposition of any assets or rights; provided
that the sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Company, on a consolidated basis, will be governed by the provisions of
Section 4.15 and/or Section 5.01 hereof and not by the provisions of the Section 4.10
hereof; and




     (2) the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or
the sale of Equity Interests in any of its Subsidiaries.




     Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:




     (1) any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $10.0 million;




     (2) a conveyance, sale, lease, disposition or transfer of assets between or among the
Company and its Restricted Subsidiaries,




     (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to a Restricted Subsidiary of the Company;




     (4) the conveyance, sale, transfer, assignment, lease or other disposition of products,
services, accounts receivable or assets or rights in the ordinary course of business and any
sale, exchange or other disposition of assets that have become damaged, worn-out, used,
obsolete uneconomical, unsuitable, surplus or otherwise not required for use in connection
with the business of the Company or any of its Restricted Subsidiaries;




     (5) the sale or other disposition of cash or Cash Equivalents;




     (6) a Restricted Payment that does not violate Section 4.07 hereof or a Permitted
Investment;




     (7) the Company and its Restricted Subsidiaries may, in the ordinary course of business
exchange assets for either assets or Equity Interests in a Permitted Business, provided that
(a) the assets or Equity Interests received have a Fair Market Value substantially equal to
the assets exchanged and (b) the assets received by the Company are controlled by the
Company with respect to voting rights and day-to-day operations, or the Equity Interests
received by the Company represent a controlling interest in the total Voting Stock and
day-to-day operations of a Person that is the issuer of such Equity Interests;



2









 






     (8) the Company and its Restricted Subsidiaries may make an exchange of assets where
the Company and/or its Restricted Subsidiaries receive consideration for such assets at
least 75% of which consists of (a) cash, (b) long-term assets (other than Capital Stock) at
Fair Market Value that are used or useful in a Permitted Business, or (c) any combination
thereof (it being understood that any net cash proceeds shall be treated as Net Proceeds);




     (9) the surrender or waiver of contract rights or settlement, release or surrender of a
contract, tort or other litigation claim in the ordinary course of business;




     (10) the lease, assignment, licensing or sublease of any real or personal property in
the ordinary course of business;




     (11) the sale of inventory in the ordinary course of business;




     (12) any sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary;




     (13) any issuance of employee stock options or stock awards pursuant to benefit plans
in existence on the date of this Indenture; and




     (14) the granting of Liens not prohibited by this Indenture.



     “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of
determination, the present value of the total obligations of the lessee for net rental payments
during the remaining term of the lease included in such Sale and Leaseback Transaction. Such
present value shall be calculated using a discount rate equal to the interest implicit in such Sale
and Leaseback Transaction, determined in accordance with GAAP.



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



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned”
have a corresponding meaning.



     “Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;




     (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;




     (3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and




     (4) with respect to any other Person, the board or committee of such Person serving a
similar function.



3









 





     “Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.



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



     “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be prepaid by the lessee without payment of a penalty.



     “Capital Stock” means:




     (1) in the case of a corporation, corporate stock;




     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




     (3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into or exchangeable for
Capital Stock, whether or not such debt securities include any right of participation with
Capital Stock.



     “Cash Equivalents” means:




     (1) United States dollars;




     (2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than six months from the date of acquisition;




     (3) certificates of deposit and eurodollar time deposits with maturities of six months
or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six
months and overnight bank deposits, in each case, with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of “B” or better;




     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;




     (5) commercial paper having one of the two highest ratings obtainable from Moody’s
Investors Service, Inc. or Standard & Poor’s Rating Services and, in each case, maturing
within six months after the date of acquisition; and




     (6) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition.



4









 






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




     (1) directly or indirectly a merger, sale, transfer or other conveyance of all or
substantially all the assets of the Company, on a consolidated basis, to any “person” or
“group” (as such terms are used for Section 13(d) and 14(d) of the Exchange Act, whether or
not applicable), excluding transfers or conveyances to or among the Company’s Restricted
Subsidiaries, as an entirety or substantially as an entirety in one transaction or series of
related transactions, in each case with the effect that any Person or group of Persons
beneficially owns more than 50% of the total Voting Stock entitled to vote in the election
of directors, managers, or trustees of the transferee entity immediately after such
transaction;




     (2) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act, whether or not applicable) is or becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the total Voting Stock of the Company;




     (3) during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election by such Board or whose nomination for election by the shareholders
of the Company was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election or nomination
for election was previously so approved), cease for any reason to constitute a majority of
the Board of Directors of the Company then in office;




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




     (5) any transaction constituting a “change of control” under the instruments governing
any Subordinated Indebtedness or Preferred Stock of the Company, if such “change of
control” would provide a holder of such Subordinated Indebtedness or Preferred Stock with a
right to require the Company to repurchase or redeem such Subordinated Indebtedness or
Preferred Stock in an aggregate principal amount (or liquidation value, in the case of
Preferred Stock) in excess of $20.0 million and such right has not been waived pursuant to
the terms thereof.



     “Change of Domicile” means a transaction or series of related transactions, including without
limitation (1) a merger, amalgamation, combination, or consolidation of the Company with or into
another Person, (2) the acquisition of all the Capital Stock of the Company, or (3) the sale,
transfer or other conveyance of all or substantially all of the assets of the Company on a
consolidated basis to another Person, the sole purpose of which is to reincorporate the Company
under the laws of the United States, in another State of the United States, or in the District of
Columbia.



     “Class M Preferred Stock” means the Class M Redeemable Voting Convertible Preferred Stock of
the Company.



     “Clearstream” means Clearstream Banking, S.A.



     “Company” means Rural Cellular Corporation, and any and all successors thereto.



     “Consolidated Indebtedness” means, with respect to any Person as of any date of determination,
the total amount of Indebtedness of such Person and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP on a consolidated basis.



5









 





     “Consolidated Interest Expense” means, with respect to any Person for any period, the sum of
without duplication




     (1) the consolidated interest expense of such Person and its Subsidiaries for such
period, whether paid or accrued (including, without limitation, amortization of debt
issuance costs or original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and net of
payments (if any) pursuant to Hedging Obligations); plus




     (2) the portion other than Attributable Debt of any rental obligations in respect of
any Sale and Leaseback Transaction; plus




     (3) Preferred Stock dividends accrued or payable on Disqualified Stock of such Person.



in each case, on a consolidated basis and in accordance with GAAP.




     Notwithstanding the foregoing:




     (A) in the event that any of the Company’s Capital Stock (other than
Disqualified Stock) is classified as indebtedness because of SFAS 150 or a change in
GAAP occurring after the date of this Indenture, dividend payments on such Capital
Stock will not be included in “Consolidated Interest Expense”; and




     (B) for purposes of Section 4.07 hereof, “Consolidated Interest Expense” shall
exclude any non-cash charges resulting from the write-down of unamortized security
issuance costs, to the extent included in “Consolidated Interest Expenses.”



     “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that:




     (1) the Net Income of any Person that is not a Restricted Subsidiary, other than such
Person, will be included only to the extent of the amount of dividends or similar
distributions paid in cash to the specified Person or a Restricted Subsidiary of the
Person;




     (2) for purposes Section 4.07 hereof, the Net Income, if positive, of any Restricted
Subsidiary will be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary, except to the extent such restrictions with respect to the
payment of dividends or similar restrictions have been validly waived;




     (3) the cumulative effect of a change in accounting principles will be excluded; and




     (4) in the event that any of the Company’s Capital Stock is classified as Indebtedness
because of SFAS 150 or a change in GAAP occurring after the date of this Indenture, dividend



6









 






payments thereon, to the extent they are treated as interest expense under GAAP, will
be excluded.



     “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Company who:




     (1) was a member of such Board of Directors on the date of this Indenture; or




     (2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.



     “Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.



     “Cooperative Bank Equity” means non-voting Equity Interests in Cooperative Banks.



     “Cooperative Banks” means lenders under the Credit Agreement which are cooperative banks.



     “Credit Agreement” means the Credit Agreement, dated as of March 25, 2004 and amended as of
October 18, 2005, among the Company, the lenders party thereto, Lehman Commercial Paper Inc., as
Administrative Agent, and Bank of America, N.A., as Documentation Agent, as such agreement may be
amended, supplemented, restated, refunded, replaced, renewed, extended, refinanced, increased or
otherwise modified, in whole or in part, from time to time (whether or not any of the foregoing (1)
occurs simultaneously with or occurs at any time after, the termination or repayment of a prior
Credit Agreement, (2) occurs pursuant to one or more separate instruments or agreements, which may
include indentures and debt securities, (3) occurs on one or more separate occasions, (4) occurs
with the same or different lenders or (5) results in an increase or decrease in the aggregate
principal amount of loans made or to be made thereunder or any other change in terms thereunder).



     “Credit Facilities” means, one or more debt facilities (which may be outstanding at the same
time and including, without limitation, the Credit Agreement) or commercial paper facilities, in
each case, providing for revolving credit loans, term loans, receivables financing (including
through the sale of receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise),
refinanced (including by means of sales of debt securities to institutional investors) or otherwise
restructured in whole or in part from time to time (including increasing the amount of available
borrowings thereunder or adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder) with respect to all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement or agreements and whether by the same or any other agent, lender
or group of lenders.



     “Cumulative Interest Expense” means the total amount of Consolidated Interest Expense of the
Company and its Restricted Subsidiaries for the period beginning on the first day of the first
fiscal quarter commencing after the date of this Indenture, through and including the end of the
last completed fiscal quarter preceding the date of any proposed Restricted Payment; provided,
however, that Cumulative Interest Expense shall not include (1) any dividends paid or accrued on
Junior Exchangeable Preferred Stock or (2) any dividends paid or accrued on Class M Preferred
Stock.



     “Cumulative Operating Cash Flow” means Operating Cash Flow of the Company and its Restricted
Subsidiaries for the period beginning on the first day of the first fiscal quarter commencing



7









 




after the date of this Indenture, through and including the end of the last completed fiscal
quarter preceding the date of any proposed Restricted Payment.




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



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



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



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



     “Designated Senior Debt” means the Indebtedness under the Credit Agreement, the Senior Secured
Notes and the Senior Unsecured Notes.



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature, except to the extent such Capital Stock is solely redeemable with
any Capital Stock which is not Disqualified Stock. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital
Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of
a change of control or an asset sale will not constitute Disqualified Stock if the “change of
control” or “asset sale” provisions applicable to such Capital Stock are no more favorable to the
holders of such Capital Stock than the provisions contained in Section 4.10 and Section 4.15
hereof, as applicable, and such Capital Stock specifically provides that such holders will not
repurchase or redeem any such Capital Stock pursuant to such provisions prior to the Company’s
repurchase of the Notes as required pursuant to Section 4.10 and 4.15 hereof, as applicable. In
addition, Capital Stock that is issued in the ordinary course of business to any employee or to any
plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such
employees shall not constitute Disqualified Stock solely because it may be required to be
repurchased by the Company or any of its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee’s termination, death or disability. The
amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture
will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to
pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified
Stock, exclusive of accrued dividends.



     “Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States or any state of the United States or the District of Columbia or that
guarantees or otherwise provides direct credit support for any Indebtedness of the Company.



8









 





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



     “Equity Offering” means any public or private sale of Capital Stock, other than Disqualified
Capital Stock, by the Company for the account of the Company.



     “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.



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



     “Exchange Indentures” means the indentures under which the Senior Subordinated Exchange
Debentures were issued, and under which the Additional Senior Subordinated Exchange Debentures may
be issued.



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



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



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



     “Existing Indebtedness” means Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the Credit Agreement) in existence on the date of the indenture, until such
amounts are repaid.



     “Existing Senior Subordinated Notes” means the 93/4% Senior Subordinated Notes due 2010 of the
Company and the Senior Subordinated Floating Rate Notes due 2012 of the Company.



     “Fair Market Value” means, with respect to any assets or Person, the price which could be
negotiated in an arm’s-length free market transaction between a willing seller and a willing buyer,
neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market
Value will be determined (1) if such Person or assets have a Fair Market Value of up to $10.0
million, by any executive officer of the Company and evidenced by an Officers’ Certificate, dated
within 30 days of the relevant transaction, or (2) if such Person or assets have a Fair Market
Value in excess of $10.0 million, by a majority of the Board of Directors of the Company and
evidenced by a resolution, dated within 30 days of the relevant transaction.



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



     “Global Note Legend” means the legend set forth in Section 2.06(g)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.



     “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that



9









 




has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in
accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.




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



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).



     “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:




     (1) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;




     (2) other agreements or arrangements designed to manage interest rates or interest rate
risk; and




     (3) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange rates or commodity prices,



in each case, as such agreements or arrangements may be amended, restated, modified, renewed,
refunded, replaced, refinanced or otherwise restructured in whole or in part from time to time.



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



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables), whether or not contingent:




     (1) in respect of borrowed money;




     (2) evidenced by bonds, notes, debentures or similar instruments, including obligations
incurred in connection with the acquisition of property, assets or business (or
reimbursement agreements in respect thereof);




     (3) in respect of letters of credit, banker’s acceptances or similar facilities issued
for the account of such Person;




     (4) representing Capital Lease Obligations in respect of sale and leaseback
transactions;




     (5) representing the balance deferred and unpaid of the purchase price of any property
or services (but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business), which purchase price is due more than six months after such
property is acquired or such services are completed;



10









 






     (6) the maximum fixed redemption or repurchase price of Disqualified Stock of such
Person at the time of determination;




     (7) the liquidation value of Preferred Stock of a Subsidiary of such Person issued and
outstanding, except for Preferred Stock held by such Person (or one of its wholly owned
Restricted Subsidiaries);




     (8) representing any net Hedging Obligations (the amount of any such obligation to be
equal at any time to the termination value of such agreement or arrangement giving rise to
such Hedging Obligation that would be payable by such Person at such time); or




     (9) in respect of any Sale and Leaseback Transaction to which such Person is a party
(the amount of such Indebtedness being equal to the Attributable Debt with respect to any
such Sale and Leaseback Transaction),


if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person;




provided, that for all purposes of this Indenture,





     (A) the amount outstanding at any time of any Indebtedness issued with original
issue discount is the face amount of such Indebtedness less the unamortized portion
of the original issue discount of such Indebtedness at the time of its issuance as
determined in conformity with GAAP,




     (B) Indebtedness shall not include any liability for federal, state, local or
other taxes, and




     (C) in the event that any of the Company’s Capital Stock (other than
Disqualified Capital Stock) is classified as indebtedness because of SFAS 150 or a
change in GAAP occurring after the date of this Indenture, such Capital Stock shall
not be included in “Indebtedness.”



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



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



     “Initial Notes” means the first $425,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.



     “Initial Purchaser” means Bear, Stearns & Co. Inc.



     “Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.



11









 





     “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding commission, travel and similar advances
to officers and employees made in the ordinary course of business), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any
such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company will be
deemed to have made an Investment on the date of any such sale or disposition equal to the Fair
Market Value of the Company’s Investments in such Subsidiary that were not sold or disposed of in
an amount determined as provided in Section 4.07(b) hereof. The acquisition by the Company or any
Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to
be an Investment by the Company or such Subsidiary in such third Person in an amount equal to the
Fair Market Value of the Investments held by the acquired Person in such third Person in an amount
determined as provided in Section 4.07(b) hereof. Except as otherwise provided in this Indenture,
the amount of an Investment will be determined at the time the Investment is made and without
giving effect to subsequent changes in value.



     “Junior Exchangeable Preferred Stock” means the 123/4 Junior Exchangeable Preferred Stock of the
Company.



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



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



     “LIBOR” with respect to an Interest Period, will be the rate (expressed as a percentage per
annum) for deposits in United States dollars for a three-month period beginning on the second
London Banking Day after the Determination Date that appears on Telerate Page 3750 (or its
successor) or Bloomberg Page BBAM 1 as of 11:00 a.m., London time, on the Determination Date. If
Telerate Page 3750 (or its successor) or Bloomberg Page BBAM 1 does not include such a rate or is
unavailable on a Determination Date, the Calculation Agent will request the principal London office
of each of four major banks in the London interbank market, as selected by the Company, to provide
such bank’s offered quotation (expressed as a percentage per annum), as of approximately 11:00
a.m., London time, on such Determination Date, to prime banks in the London interbank market for
deposits in a Representative Amount in United States dollars for a three-month period beginning on
the second London Banking Day after the Determination Date. If at least two such offered quotations
are so provided, LIBOR for the Interest Period will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, the Calculation Agent will request each of three
major banks in New York City, as selected by the Company, to provide such bank’s rate (expressed as
a percentage per annum), as of approximately 11:00 a.m., New York City time, on such Determination
Date, for loans in a Representative Amount in United States dollars to leading European banks for a
three-month period beginning on the second London Banking Day after the Determination Date. If at
least two such rates are so provided, LIBOR for the Interest Period will be the arithmetic mean of
such rates. If fewer than two such rates are so provided, then LIBOR for the Interest Period will
be LIBOR in effect with respect to the immediately preceding Interest Period.



12









 





     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.



     “Liquidated Damages” means all liquidated damages then owing pursuant to the Registration
Rights Agreement.



     “Moody’s” means Moody’s Investor Service, Inc.



     “Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however:




     (1) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with sales of assets other than sales of inventory in the
ordinary course; and




     (2) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.



     “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, and any relocation expenses incurred
as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case,
after taking into account any available tax credits or deductions and any tax sharing arrangements,
and amounts required to be applied to the repayment of Indebtedness, other than Senior Debt,
secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve
for adjustment in respect of the sale price of such asset or assets established in accordance with
GAAP.



     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise,
or (c) constitutes the lender;




     (2) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to
its Stated Maturity; and




     (3) as to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.



     “Non-U.S. Person” means a Person who is not a U.S. Person.



13









 





     “Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes
and the Additional Notes shall be treated as a single class for all purposes under this Indenture,
and unless the context otherwise requires, all references to the Notes shall include the Initial
Notes and any Additional Notes.



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



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



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.



     “Operating Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication:




     (1) an amount equal to any extraordinary loss plus any net loss realized by such Person
or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such
losses were deducted in computing such Consolidated Net Income; plus




     (2) provision for taxes of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income; plus




     (3) the Consolidated Interest Expense of such Person and its Restricted Subsidiaries
for such period, to the extent that such Consolidated Interest Expense was deducted in
computing such Consolidated Net Income; plus




     (4) depreciation, amortization and other non-cash charges of such Person and its
Restricted Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, to the extent that such depreciation, amortization and other non-cash charges
were deducted in computing such Consolidated Net Income; less




     (5) the amount of all cash payments made during such period by such Person and its
Restricted Subsidiaries to the extent such payments relate to non-cash charges that were
added back in determining Operating Cash Flow for such period or for any prior period (and
only to the extent such amounts are included in determining such Consolidated Net Income).



in each case, on a consolidated basis and determined in accordance with GAAP.




     In the case of a Restricted Subsidiary that is not a wholly owned Restricted Subsidiary, the
determination of the percentage of the Operating Cash Flow of such Restricted Subsidiary that is to
be included in the calculation of the Company’s Operating Cash Flow shall be made on a pro forma
basis on the assumption that the percentage of the Company’s common Equity Interest in such
Restricted Subsidiary throughout the applicable four-quarter reference period was equivalent to its
common Equity Interest on the date of the determination.



14









 





     “Operating Cash Flow Ratio” means, with respect to any specified Person as of any date of
determination, the ratio of (a) the Consolidated Indebtedness of such Person as of such date
(asfter giving pro forma effect to the incurrence of Indebtedness and the application of the
proceeds thereof on such date of determination) to (b) the Operating Cash Flow of such Person for
the last four most recent full fiscal quarters ended prior to such date of determination for which
internal financial statements are available, determined on a pro forma basis in good faith on a
reasonable basis by a responsible financial or accounting officer of the specified Person.



     In addition, for purposes of calculating the Operating Cash Flow Ratio and Consolidated
Indebtedness:




     (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through the acquisition of assets, stock purchases, mergers,
consolidations or the like, or by any Person or any of its Restricted Subsidiaries acquired
by the specified Person or any of its Restricted Subsidiaries, and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the date on which the event for which the
calculation of the Operating Cash Flow Ratio (the “Calculation Date”) will be given pro
forma effect as if they as if such acquisitions and dispositions (and related financing
transactions) had occurred at the beginning of such four-quarter period;




     (2) the Operating Cash Flow attributable to operations or businesses (and ownership
interests therein) disposed of during the four-quarter reference period or subsequent to
such reference period and on or prior to the Calculation Date, will be excluded;




     (3) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed
to have been a Restricted Subsidiary at all times during such four-quarter period;




     (4) any Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such four-quarter period;




     (5) the Indebtedness of any Restricted Subsidiary that is not a wholly-owned Restricted
Subsidiary shall be determined in accordance with the actual percentage of the Person’s
common Equity Interest in such Restricted Subsidiary on the date of determination of the
Operating Cash Flow (thus, for example, in the case of a Restricted Subsidiary in which such
Person owns a 51% common Equity Interest, 51% of such Subsidiary’s Indebtedness would be
included in the calculation of such Person’s aggregate Indebtedness); and




     (6) the Junior Exchangeable Preferred Stock and the Class M Preferred Stock outstanding
on the date of this Indenture shall be excluded from Consolidated Indebtedness. For the
avoidance of doubt, any accrued but unpaid dividends on such Preferred Stock shall be
similarly excluded.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).



15









 





     “Permitted Business” means the lines of business conducted by the Company and its Subsidiaries
on the date of this Indenture and any businesses similar, related, incidental or ancillary thereto
or that constitutes a reasonable extension or expansion thereof.



     “Permitted Investments” means:




     (1) any Investment in the Company or in a Restricted Subsidiary of the Company;




     (2) any Investment in Cash Equivalents;




     (3) any Investment by the Company or any Restricted 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, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company;




     (4) Investments in accounts and notes receivable acquired in the ordinary course of
business;




     (5) advances and prepayments for asset purchases in the ordinary course of business in
a Permitted Business of the Company or a Restricted Subsidiary;




     (6) the purchase of Cooperative Bank Equity in Cooperative Banks to the extent required
by the charter documents of such Cooperative Banks in connection with the incurrence of any
Indebtedness that is provided by such Cooperative Banks under the Credit Agreement, provided
that such incurrence is permitted under the terms of this Indenture;




     (7) Investments in Wireless Alliance not exceeding $10.0 million in the aggregate made
after January 16, 2002;




     (8) receivables owing to the Company or any Restricted Subsidiary of the Company if
created or acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;




     (9) Investments that are deemed to have been made as a result of the acquisition of a
Person that at the time of such acquisition held instruments constituting Investments that
were not acquired in contemplation of the acquisition of such Person (only to the extent
that the making of such Investment through the acquisition of such Person was already deemed
to be a Restricted Payment made pursuant to Section 4.07 hereof as of the date of such
acquisition);




     (10) Investments in prepaid expenses and lease, utility, and workers’ compensation
performance and other similar deposits.




     (11) any Investments in securities received in connection with an Asset Sale and any
Investments with the Net Proceeds from any Asset Sale in Capital Stock of a Person, all or
substantially all of whose assets are of a type used in a Permitted Business, that complies
with Section 4.10 hereof;



16









 






     (12) any acquisition of assets or Capital Stock solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;




     (13) any Investments received in compromise or resolution of (A) obligations of trade
creditors or customers that were incurred in the ordinary course of business of the Company
or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or
(B) litigation, arbitration or other disputes with Persons who are not Affiliates;




     (14) Investments represented by Hedging Obligations;




     (15) loans or advances to employees made in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company in an aggregate principal amount not to
exceed $5.0 million at any one time outstanding;




     (16) repurchases of the Notes; and




     (17) other Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this clause (17)
that are at the time outstanding not to exceed $25.0 million.



     “Permitted Junior Securities” means:




     (1) Equity Interests in the Company; or




     (2) debt securities that are subordinated to all Senior Debt (and any debt securities
issued in exchange for Senior Debt) to substantially the same extent as, or to a greater
extent than, the Notes are subordinated to Senior Debt under this Indenture.



     “Permitted Liens” means:




     (1) Liens on assets of the Company or any of its Restricted Subsidiaries securing
Senior Debt that was permitted by the terms of this Indenture to be incurred;




     (2) Liens in favor of the Company or any of its wholly owned Restricted Subsidiaries;




     (3) Liens on assets of a Person existing at the time such Person is merged with or into
or consolidated with the Company or any Subsidiary of the Company; provided that such Liens
were in existence prior to the contemplation of such acquisition, merger or consolidation
and do not extend to any assets other than those of the Person acquired by, merged into or
consolidated with the Company or the Subsidiary;




     (4) Liens on assets (including Capital Stock) existing at the time of acquisition of
the assets by the Company or any Subsidiary of the Company, provided that such Liens were in
existence prior to, such acquisition, and not incurred in contemplation of, such
acquisition;




     (5) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary course of
business;



17









 






     (6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (4) of Section 4.09(b) hereof covering only the assets acquired with or financed by
such Indebtedness;




     (7) Liens existing on the date of this Indenture;




     (8) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;




     (9) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’
Liens, in each case, incurred in the ordinary course of business and inchoate statutory
landlord’s liens for amounts which are not yet due arising in the ordinary course of
business;




     (10) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real property that were
not incurred in connection with Indebtedness and that do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in the
operation of the business of such Person;




     (11) Liens created for the benefit of (or to secure) the Notes;




     (12) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under the indenture; provided, however, that:




     (A) the new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original
Lien arose, could secure the original Lien (plus improvements and accessions to,
such property or proceeds or distributions thereof); and




     (B) the Indebtedness secured by the new Lien is not increased to any amount
greater than the sum of (x) the outstanding principal amount or, if greater,
committed amount, of the Permitted Refinancing Indebtedness and (y) an amount
necessary to pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancings, replacement, defeasance or discharge.




     (13) Liens on any Permitted Investment in Cooperative Bank Equity in favor of any
Cooperative Banks;




     (14) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligation in respect of banker’s acceptances issued or created in
the ordinary course for the account of such Person to facilitate the purchase, shipment, or
storage of such inventory or goods;




     (15) Liens securing Indebtedness or other obligations of a Restricted Subsidiary of
such Person owing to such Person or a Restricted Subsidiary of such Person;




     (16) Liens incurred or pledges or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types of social
security;



18









 






     (17) any interest or title of a lessor or sublessor under any operating lease or
capital lease;




     (18) Liens under licensing agreements for use of intellectual property entered into in
the ordinary course of business;




     (19) Liens incurred or deposits made in connection with account netting and other
similar treasury functions;




     (20) Liens to support trade letters of credit issued in the ordinary course of
business;




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




     (22) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual, or warranty requirements of the Company, including rights of offset
and set-off;




     (23) Liens from judgments, decrees, or attachments in circumstances not constituting an
Event of Default;




     (24) Liens securing Hedging Obligations so long as such Hedging Obligations relate to
Indebtedness that is, and is permitted to be under this Indenture, secured by a Lien on the
same property securing such Hedging Obligations;




     (25) Deposits made in the ordinary course of business to secure liability to insurance
carriers;




     (26) Leases or subleases granted to others that do not materially interfere with the
ordinary course of business of the Company or its Restricted Subsidiaries;




     (27) Liens arising from Uniform Commercial Code financing statements regarding leases;




     (28) Any extensions, substitutions, replacements or renewals of the forgoing; and




     (29) Liens incurred in the ordinary course of business of the Company or any Subsidiary
of the Company with respect to obligations that do not exceed $5.0 million at any one time
outstanding.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to refund,
refinance, replace, extend, defease or discharge other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged (plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums incurred in connection therewith);



19









 






     (2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged;




     (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the documentation governing the
Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and




     (4) the Junior Exchangeable Preferred Stock and the Class M Preferred Stock (and any
Preferred Stock that is Disqualified Stock issued to exchange, renew, replace, extend,
refinance or refund any of the foregoing) (collectively, the “Refinanced Preferred Stock”)
may be exchanged, renewed, replaced, extended, refinanced or refunded pursuant to this
clause (4) only by the incurrence of Capital Stock (other than Disqualified Stock) that
ranks equally with or junior to the Refinanced Preferred Stock.



     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



     “Preferred Stock” means, with respect to any Person, any and all shares of Capital Stock of
such Person that have preferential rights to any other Capital Stock of such Person with respect to
dividends or redemptions or upon liquidation.



     “Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.



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



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of May 30,
2007, between the Company and the Initial Purchaser, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or more registration
rights agreements among the Company and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the Securities Act.



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



     “Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.



     “Representative” means the indenture trustee or other trustee, agent or representative for any
Senior Debt.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above



20









 




designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.




     “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.



     “Restricted Global Note” means a Global Note bearing the Private Placement Legend.



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



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



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



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



     “Rule 903” means Rule 903 promulgated under the Securities Act.



     “Rule 904” means Rule 904 promulgated under the Securities Act.



     “Sale and Leaseback Transaction” of any Person means an arrangement with any lender or
investor or to which such lender or investor is a party providing for the leasing by such Person of
any property or asset of such Person which has been or is being sold or transferred by such Person
more than 270 days after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any Person to whom funds have been or are to
be advanced by such lender or investor on the security of such property or asset. The stated
maturity of such arrangement shall be the date of the last payment of rent or any other amount due
under such arrangement prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.



     “S&P” means Standard & Poor’s Ratings Group.



     “SEC” means the Securities and Exchange Commission.



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



     “Senior Debt” means the principal of, premium, if any, and interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed claim under
applicable law) on:




     (1) all Indebtedness of the Company outstanding under Credit Facilities and all other
obligations thereunder or under the Notes, security documents, pledge agreements, Hedging
Obligations or other agreements or instruments with respect thereto;




     (2) the Senior Secured Notes and the Senior Unsecured Notes;




     (3) Indebtedness of the Company created pursuant to any vendor financing incurred for
the acquisition, construction or improvement by the Company or any Restricted Subsidiary of
assets in the Permitted Business;




     (4) all other Indebtedness of the Company for borrowed money referred to in the
definition of Indebtedness (other than clauses (5), (6) and (7)), whether incurred on or
prior to the date of this Indenture, other than the Notes;



21









 






     (5) any other Indebtedness of the Company permitted to be incurred under the terms of
this Indenture, unless the instrument under which such Indebtedness is incurred expressly
provides that it is on a parity with or subordinated in right of payment to the Notes;




     (6) amendments, renewals, extensions, modifications, refinancings and refundings of any
such Indebtedness; and




     (7) all Obligations with respect to the items listed in the preceding clauses (1) and
(6).




     Notwithstanding anything to the contrary in the preceding, Senior Debt will not include:




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




     (2) any intercompany Indebtedness of the Company or any of its Subsidiaries to the
Company or any of its Affiliates;




     (3) any trade payables;




     (4) the portion of any Indebtedness that is incurred in violation of this Indenture
(but, as to any such Indebtedness, no such violation shall be deemed to exist for purposes
of this clause (4) if the holder(s) of such Indebtedness or their representative and the
Trustee shall have received an officers’ certificate of the Company to the effect that the
incurrence of such Indebtedness does not (or in the case of revolving credit Indebtedness,
that the incurrence of the entire committed amount thereof at the date on which the initial
borrowing thereunder is made would not) violate this Indenture; provided that the holder(s)
of such Indebtedness or their representative shall not have received prior to the incurrence
of such Indebtedness a written notice from the Trustee advising them that such incurrence
violates the terms of this Indenture); or




     (5) Indebtedness which is classified as non-recourse in accordance with GAAP.



     “Senior Secured Notes” means the Senior Secured Floating Rate Notes due 2010 and the 81/4%
Senior Secured Notes due 2012 of the Company.



     “Senior
Subordinated Exchange Debentures” means the
113/8% Senior Subordinated Debentures due
2010 of the Company.



     “Senior
Unsecured Notes” means the
97/8% Senior Notes due 2010 of the Company.



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



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness, and will not include any contingent
obligations to repay,



22









 




redeem or repurchase any such interest or principal prior to the date originally scheduled for
the payment thereof.




     “Subordinated Indebtedness” means Indebtedness of the Company or any of its Restricted
Subsidiaries, whether outstanding on the date hereof or hereafter incurred, which is by its terms
expressly subordinate or junior in right of payment to the notes.



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and




     (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).



     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).



     “Total Assets” means the total assets of the Company and its Restricted Subsidiaries on a
consolidated basis determined in accordance with GAAP, as shown on the most recently available
consolidated balance sheet of the Company.



     “Trustee” means Well Fargo Bank, National Association until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.



     “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.



     “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.



     “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent that such Subsidiary:




     (1) has no Indebtedness other than Non-Recourse Debt;




     (2) except as permitted by Section 4.11 hereof, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement or understanding are
no less favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company;




     (3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or



23









 






(b) to maintain or preserve such Person’s financial condition or to cause such Person
to achieve any specified levels of operating results; and




     (4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.



     Wireless Alliance shall be deemed an Unrestricted Subsidiary as of the date of this Indenture and
shall thereafter remain an Unrestricted Subsidiary unless and until designated by the Board of
Directors as a Restricted Subsidiary in accordance with the terms of this Indenture.



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



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



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:




     (1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness.



     “Wireless Alliance” means Wireless Alliance, LLC, a Minnesota limited liability company.



Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	3.09	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Payment Date”
	 	 	4.15	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Permitted Debt”
	 	 	4.09	 






24









 






	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Payment Blockage Notice”
	 	 	10.03	 
	“Payment Default”
	 	 	6.01	 
	“Purchase Date”
	 	 	3.09	 
	“Redemption Date”
	 	 	3.07	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 






Section 1.03 Incorporation by Reference of Trust Indenture Act.




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



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



     “indenture securities” means the Notes;



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



     “indenture to be qualified” means this Indenture;



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



     “obligor” on the Notes means the Company and any successor obligor upon the Notes.



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



Section 1.04 Rules of Construction.




     Unless the context otherwise requires:




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




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




     (3) “or” is not exclusive;




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




     (5) “will” shall be interpreted to express a command;




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




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



25









 





ARTICLE 2

THE NOTES




Section 2.01 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples thereof of $1,000.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.



     (b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A
hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto). Notes issued in definitive form will be substantially in the form
of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such
of the outstanding Notes as will be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.



Section 2.02 Execution and Authentication.




     At least one Officer must sign the Notes for the Company by manual or facsimile signature.



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



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



     The Trustee will, upon receipt of a written order of the Company signed by one Officer (an
“Authentication Order”), authenticate Notes for original issue that may be validly issued under
this Indenture, including any Additional Notes. The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as provided in
Section 2.07 hereof.



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



26









 





Section 2.03 Registrar and Paying Agent.




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



     The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.



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



Section 2.04 Paying Agent to Hold Money in Trust.




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



Section 2.05 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least
ten Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA
§ 312(a).



Section 2.06 Transfer and Exchange.




     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:




     (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency



27









 






registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the Depositary;




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; or




     (3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes and such exchange is requested by the Holders.



     Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however, beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:




     (A) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and




     (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or



28









 






     (B) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and




     (ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above;


Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.





     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar
receives the following:




     (A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;




     (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof; and




     (C) if the transferee will take delivery in the form of a beneficial interest
in the IAI Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, represents that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;



29









 






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




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




     (D) the Registrar receives the following:




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




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




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



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



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



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




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




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




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



30









 






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




     (D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;




     (E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;




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




     (G) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.





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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
represents that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;




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



31









 






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




     (D) the Registrar receives the following:




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




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




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




     (3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will be registered in such name or names and in
such authorized denomination or denominations as the holder of such beneficial interest
requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear the Private
Placement Legend.



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




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




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



32









 






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




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




     (D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;




     (E) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;




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




     (G) if such Restricted Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,




the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, in the case of clause (C) above, the Regulation S Global Note, and in all
other cases, the IAI Global Note.




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, represents that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:



33









 






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




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




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




     Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.




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




     If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.



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




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



34









 






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




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




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




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, represents that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




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




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




     (3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in



35









 






the form of an Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.



     (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:




     (1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and




     (2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Company.



     Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.



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




     (1) Private Placement Legend.




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


“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF RURAL
CELLULAR CORPORATION THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1) (a) IN THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL




36









 







“ACCREDITED INVESTOR” (AS DEFINED IN RULE 501 (a) (1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
“INSTITUTIONAL ACCREDITED INVESTOR”)) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO RURAL CELLULAR CORPORATION THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF RURAL
CELLULAR CORPORATION SO REQUESTS), (2) TO THE RURAL CELLULAR CORPORATION OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.”





     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.




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


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



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE




37









 







HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”




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



     (i) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.




     (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.15 and 9.05 hereof).




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




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




     (5) Neither the Registrar nor the Company will be required:




     (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or




     (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.



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     (6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.




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




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



Section 2.07 Replacement Notes.




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



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



Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.



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



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



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



Section 2.09 Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, will be considered as though not outstanding, except that for the purposes of determining
whether the Trustee



39









 




will be protected in relying on any such direction, waiver or consent, only Notes that the
Trustee knows are so owned will be so disregarded.




Section 2.10 Temporary Notes.




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



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




Section 2.11 Cancellation.




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



Section 2.12 Defaulted Interest.




     If the Company defaults in a payment of interest on the Notes, it will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company will fix or cause to be fixed each such special record date and
payment date; provided that no such special record date may be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.



ARTICLE 3

REDEMPTION AND PREPAYMENT




Section 3.01 Notices to Trustee.




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers’ Certificate setting forth:




     (1) the clause of this Indenture pursuant to which the redemption shall occur;




     (2) the redemption date;




     (3) the principal amount of Notes to be redeemed; and



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     (4) the redemption price.



Section 3.02 Selection of Notes to Be Redeemed or Purchased.




     If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee will select Notes for redemption or purchase on a pro rata basis or by lot or
such other method that the Trustee deems fair and appropriate unless otherwise required by law or
applicable stock exchange requirements.



     In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption or purchase date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.



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



Section 3.03 Notice of Redemption.




     Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed 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 pursuant to Articles 8 or 11 hereof.



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




     (1) the redemption date;




     (2) the redemption price;




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




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




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




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



41









 






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




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



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



Section 3.04 Effect of Notice of Redemption.




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



Section 3.05 Deposit of Redemption or Purchase Price.




     One Business Day prior to the redemption or purchase date, the Company will deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and
accrued interest and Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest and Liquidated Damages, if any, on, all Notes
to be redeemed or purchased.



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



Section 3.06 Notes Redeemed or Purchased in Part.




     Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.



Section 3.07 Optional Redemption.




     (a) At any time prior to June 1, 2008, the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes issued under this Indenture (including the
principal amount of any Additional Notes) from the net cash proceeds of one or more Equity
Offerings at



42









 




a redemption price equal to 100% of the aggregate principal amount of the Notes redeemed plus
a premium equal to the interest on such Notes for one year (based on the interest rate in effect at
the time the Company delivers a notice of redemption), together with accrued and unpaid interest
and Liquidated Damages, if any, on the Notes redeemed to but excluding the date fixed for
redemption; provided that:





     (1) at least 65% of the aggregate principal amount of Notes issued under this Indenture
(excluding Notes held by the Company, but including the principal amount of any Additional
Notes) remains outstanding immediately after the occurrence of such redemption; and




     (2) the redemption occurs within 90 days of the date of the closing of such Equity
Offering.



     (b) Except pursuant to the preceding paragraph, the Notes will not be redeemable at the
Company’s option prior to June 1, 2008 and the final paragraph of this Section 3.07.



     (c) On or after June 1, 2008, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any,
on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month
period beginning on June 1 of the years indicated below, subject to the rights of Holders on the
relevant record date to receive interest on the relevant interest payment date:



	 	 	 	 	 
	Year	 	Percentage
	2008
	 	 	102.000	%
	2009
	 	 	101.000	%
	2010 and thereafter
	 	 	100.000	%






     Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.



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



     At any time prior to June 1, 2008, the Company may also redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each
Holder’s registered address, at a redemption price equal to 100% of the principal amount of the
Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption (the “Redemption Date”), subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant interest
payment date.



Section 3.08 Mandatory Redemption.




     The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.



Section 3.09 Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an
offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures
specified below.



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     The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale
Offer will remain open for a period of at least 20 Business Days following its commencement and not
more than 30 Business Days, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than three Business Days after the termination of the Offer Period
(the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the
purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or,
if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same
manner as interest payments are made.



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



     Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain
all instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:




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




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




     (3) that any Note not tendered or accepted for payment will continue to accrue
interest;




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




     (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in a minimum denomination of $2,000 and integral multiples of
$1,000 only;




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




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




     (8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes
and other pari passu Indebtedness to be purchased on a pro rata basis based on the



44









 






principal amount of Notes and such other pari passu Indebtedness surrendered (with such
adjustments as may be deemed appropriate by the Company so that only Notes in denominations
of $2,000, or integral multiples of $1,000 in excess thereof, will be purchased); and




     (9) that Holders whose Notes were purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).



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



     Other than as specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.



ARTICLE 4

COVENANTS




Section 4.01 Payment of Notes.




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



     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace period) at the same rate to
the extent lawful.



Section 4.02 Maintenance of Office or Agency.




     The Company will maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes



45









 




and this Indenture may be served. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency if such office or agency
is not the Corporate Trust Office of the Trustee. If at any time the Company fails to maintain any
such required office or agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee.




     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission will in any
manner relieve the Company of its obligation to maintain an office or agency for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency if such office or agency is
not the Corporate Trust Office of the Trustee.



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



Section 4.03 Reports.




     (a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Holders of Notes or cause the Trustee to furnish to
the Holders of Notes, within the time periods specified in the SEC’s rules and regulations:




     (1) all quarterly and annual reports that would be required to be filed with the SEC on
Forms 10-Q and 10-K if the Company were required to file such reports; and




     (2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.



     In addition, following the consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, the Company will file a copy of each of the reports referred to in clauses (1)
and (2) above with the SEC for public availability within the time periods specified in the rules
and regulations applicable to such reports (unless the SEC will not accept such a filing) and will
post the reports on its website within those time periods. The Company will at all times comply
with TIA § 314(a).



     If, at any time after consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, the Company is no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in
the preceding paragraph with the SEC within the time periods specified above unless the SEC will
not accept such a filing. The Company will not take any action for the purpose of causing the SEC
not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the
Company’s filings for any reason, the Company will post the reports referred to in the preceding
paragraph on its website within the time periods that would apply if the Company were required to
file those reports with the SEC.



     (b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by paragraph (a) of this Section 4.03 will
include a reasonably detailed presentation, either on the face of the financial statements or in
the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company.



46









 





     (c) For so long as any Notes remain outstanding, if at any time it is not required to file
with the SEC the reports required by paragraphs (a) and (b) of this Section 4.03, the Company will
furnish to the Holders and to securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.



Section 4.04 Compliance Certificate.




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



     (b) So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.03
above shall be accompanied by a written statement of the Company’s independent public accountants
(who shall be a firm of established national reputation) that in making the examination necessary
for certification of such financial statements, nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of Sections 4.01, 4.05, 4.07, 4.08,
4.09 and 4.10 or Article 5 hereof insofar as they relate to financial and accounting matters, it
being understood that such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.



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



Section 4.05 Taxes.




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



Section 4.06 Stay, Extension and Usury Laws.




     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.



47









 





Section 4.07 Restricted Payments.




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




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




     (2) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests (including the Junior Exchangeable Preferred Stock and the Class M Preferred
Stock) of the Company or any direct or indirect parent of the Company held by persons other
than the Company or any of its Restricted Subsidiaries;




     (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness of the Company that is contractually
subordinated to the Notes (excluding any intercompany Indebtedness between or among the
Company and any of its Restricted Subsidiaries) prior to any scheduled maturity, repayment
or sinking fund payment, except a payment of interest or principal at the Stated Maturity
thereof; or




     (4) make any Restricted Investment




(all such payments and other actions set forth in these clauses (1) through (4) above being
collectively referred to as “Restricted Payments”),



          unless, at the time of and after giving effect to such Restricted Payment:



     (1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;



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



     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries since the beginning of the
first fiscal quarter commencing after the date of this Indenture (excluding Restricted
Payments permitted by clauses (2), (3), (4), (6), (7), (8), (11) and (13) of paragraph (b)
of this Section 4.07), does not exceed the sum, without duplication, of




     (A) Cumulative Operating Cash Flow less 1.40 times Cumulative Interest Expense,
plus



48









 






     (B) 100% of the aggregate net cash proceeds, and the Fair Market Value of any
asset or property, received by the Company since the beginning of the first fiscal
quarter commencing after the date of this Indenture as a contribution to its common
equity capital or from the issue or sale of Equity Interests of the Company (other
than Disqualified Stock) or from the issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable debt securities of the Company
that have been converted into or exchanged for such Equity Interests (other than
Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of
the Company), plus




     (C) to the extent that any Restricted Investment that was made after the date
of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (i) the cash return of capital with respect to such Restricted Investment
(less the cost of disposition, if any) and (ii) the initial amount of such
Restricted Investment, plus




     (D) to the extent that any Unrestricted Subsidiary of the Company designated as
such on or after the date of this Indenture is redesignated as a Restricted
Subsidiary on or after the date of this Indenture, the lesser of (i) the Fair Market
Value of the Company’s Investment in such Subsidiary as of the date of such
redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary
was originally designated as an Unrestricted Subsidiary, plus




     (E) 100% of any dividends received by the Company or a Restricted Subsidiary of
the Company after the date of this Indenture from an Unrestricted Subsidiary of the
Company, to the extent that such dividends were not otherwise included in
Consolidated Net Income of the Company for such period.



     (b) The provisions of Section 4.07(a) hereof will not prohibit:




     (1) the payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of the dividend or giving of the redemption
notice, as the case may be, if at the date of declaration or notice, the dividend or
redemption payment would have complied with the provisions of this Indenture;




     (2) the making of any Restricted Payment in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company)
of, Equity Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the Company; provided that
the amount of any such net cash proceeds that are utilized for any such Restricted Payment
will be excluded from clause (3)(B) of Section 4.07(b) hereof;




     (3) the repurchase, redemption, defeasance or other acquisition or retirement for value
of Indebtedness of the Company that is contractually subordinated to the Notes with the net
cash proceeds from a substantially concurrent incurrence of Permitted Refinancing
Indebtedness or any refinancing of any Indebtedness otherwise permitted under clause (1) of
Section 4.09(b) hereof;




     (4) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company to
the holders of its Equity Interests on a pro rata basis;



49









 






     (5) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held by any
employee benefit plans of any of the Company or any of its Restricted Subsidiaries, any
current or former officer, director or employee of the Company or any of its Restricted
Subsidiaries or pursuant to any equity subscription agreement, stock option agreement,
shareholders’ agreement or similar agreement; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests may not exceed $5.0 million
in any twelve-month period;




     (6) the repurchase of Equity Interests deemed to occur upon the exercise of stock
options, warrants or other rights to acquire Equity Interests to the extent such Equity
Interests represent a portion of the exercise price of those stock options, warrants or
other rights;




     (7) the declaration and payment of regularly scheduled or accrued dividends to holders
of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of
the Company issued on or after the date of this Indenture in accordance with the Operating
Cash Flow Ratio test described in Section 4.09 hereof;




     (8) the issuance of Additional Senior Subordinated Exchange Debentures in exchange for
the Junior Exchangeable Preferred Stock in accordance with the terms of the Junior
Exchangeable Preferred Stock in effect on the date of this Indenture, provided that after
giving effect thereto, the Company’s Operating Cash Flow Ratio would have been no greater
than 6.5 to 1.0;




     (9) the payment of dividends on the Junior Exchangeable Preferred Stock, which
dividends do not exceed $30.0 million in the aggregate since the date of this Indenture;
provided that in no event may any such payment be made unless the Operating Cash Flow Ratio
of the Company, calculated on the basis that the Junior Exchangeable Preferred Stock on
which such dividends are proposed to be paid constitutes Indebtedness, is less than 7.0 to
1.0;




     (10) the repurchase, redemption, acquisition or other retirement for value of the
Junior Exchangeable Preferred Stock, provided that, in no event shall any such repurchase,
redemption, acquisition, or other retirement for value be made unless the Operating Cash
Flow Ratio of the Company is no greater than 6.0 to 1.0;




     (11) the distribution, as a dividend or otherwise, of Capital Stock of, or Indebtedness
owed to the Company or a Restricted Subsidiary by, any Unrestricted Subsidiary;




     (12) any purchase, redemption, retirement, defeasance or other acquisition for value of
any Subordinated Indebtedness pursuant to the provisions of such Subordinated Indebtedness
upon a Change of Control or an Asset Sale after the Company shall have complied with the
provisions of Sections 4.10 and 4.15 hereof;




     (13) the purchase, redemption or other acquisition or retirement for value of Equity
Interests of any Restricted Subsidiary held by persons other than the Company or any of its
Restricted Subsidiaries; and




     (14) other Restricted Payments in an aggregate amount not to exceed $50.0 million since
the date of this Indenture.


provided that with respect to clauses (5) through (14) of this Section 4.07(b), no Default shall
have occurred and be continuing or would be caused thereby.




50









 








     In determining whether any Restricted Payment is permitted by this Section 4.07(b), the
Company may allocate all or any portion of such Restricted Payment among the categories described
in clauses (1) through (14) of this Section 4.07(b) or among such categories and the types of
Restricted Payments described in the second paragraph of Section 4.07(a); provided that at the time
of such allocation, all such Restricted Payments, or allocated portions thereof, would be permitted
under the various provisions of this Section 4.07.



     The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.



Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.




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




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




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




     (3) sell, lease or transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.



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




     (1) agreements governing Existing Indebtedness, Credit Facilities and any other
agreements as in effect on the date of this Indenture and any amendments, restatements,
modifications, renewals, supplements, refundings, replacements or refinancings of those
agreements; provided that the amendments, restatements, modifications, renewals,
supplements, refundings, replacement or refinancings are no more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those contained in
those agreements on the date of this Indenture;




     (2) this Indenture and the Notes;




     (3) applicable law, rule, regulation or order;




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



51









 






     (5) customary non-assignment provisions in contracts, licenses, leases or real property
mortgages or related documents entered into in the ordinary course of business;




     (6) purchase money obligations for property acquired in the ordinary course of
business, Capital Lease Obligations or mortgage financings that impose restrictions on the
property purchased of the nature described in clause (3) of Section 4.08(a) hereof;




     (7) any agreement for the sale or other disposition of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending the sale or other disposition;




     (8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;




     (9) Liens permitted to be incurred under the provisions of Section 4.12 hereof that
limit the right of the debtor to dispose of the assets subject to such Liens;




     (10) provisions limiting the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements
and other similar agreements entered into with the approval of the Company’s Board of
Directors, which limitation is applicable only to the assets that are the subject of such
agreements; and




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



Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified
Stock, if the Operating Cash Flow Ratio would have been no greater than 7.5 to 1.



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




     (1) the incurrence by the Company of Indebtedness under Credit Facilities in an
aggregate principal amount at any one time outstanding under this clause (1) not to exceed
$600.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the
Company or any of its Restricted Subsidiaries since the date of this Indenture to repay any
term Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness
under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant
to Section 4.10 hereof;




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



52









 






     (3) the incurrence by the Company of Indebtedness represented by the Notes to be issued
on the date of this Indenture and the Exchange Notes to be issued pursuant to the
Registration Rights Agreement;




     (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or equipment
used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred to refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section
4.09(b)(4), not to exceed the greater of 2.0% of Total Assets or $12.0 million at any time
outstanding;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a)
hereof or clauses (2), (3), (4), (5), (13), (14) or (15) of this Section 4.09(b);




     (6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided,
however, that:




     (A) if the Company is the obligor on such Indebtedness and the payee is not the
Company, such Indebtedness must be expressly subordinated to the prior payment in
full in cash of all Obligations then due with respect to the Notes; and




     (B) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted Subsidiary
of the Company;




will be deemed, in each case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not permitted by this
clause (6) of Section 4.09(b);




     (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of Preferred Stock; provided, however, that:




     (A) any subsequent issuance or transfer of Equity Interests that results in any
such Preferred Stock being held by a Person other than the Company or a Restricted
Subsidiary of the Company; and




     (B) any sale or other transfer of any such preferred stock to a Person that is
not either the Company or a Restricted Subsidiary of the Company;




will be deemed, in each case, to constitute an issuance of such Preferred Stock by such
Restricted Subsidiary that was not permitted by this clause (7) of Section 4.09(b);




     (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations in the ordinary course of business;



53









 






     (9) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred
by another provision of this Section 4.09; provided that if the Indebtedness being
guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be
subordinated or pari passu to the same extent as the Indebtedness guaranteed;




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of workers’ compensation, health, disability or other employee
benefits or self-insurance obligations, property, casualty or liability insurance, bankers’
acceptances, performance and surety bonds in the ordinary course of business;




     (11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days;




     (12) Acquired Debt of the Company; provided that, on a pro forma basis after giving
effect to the incurrence of such Acquired Debt, the Company would be able to incur at least
$1.00 of additional Indebtedness pursuant to the provisions described under Section 4.09(a)
hereof;




     (13) Indebtedness of the Company or any of its Restricted Subsidiaries arising from
agreements providing for indemnification, adjustment of purchase price or similar
obligations, or from guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to
such agreements, in any case incurred in connection with the disposition of any business,
assets or Subsidiary of the Company (other than guarantees of, or similar obligations under,
Indebtedness incurred by any Person acquiring all or any portion of such business, assets or
Restricted Subsidiary of the Company for the purpose of financing such acquisition), in an
amount not to exceed the gross proceeds actually received by the Company or any Restricted
Subsidiary in connection with such disposition;




     (14) Indebtedness of any Restricted Subsidiary of the Company which does not exceed
$50.0 million in the aggregate for all such Restricted Subsidiaries at any time outstanding
under this clause (14) of Section 4.09(b) (excluding intercompany Indebtedness or Acquired
Debt that is otherwise permitted to be incurred under this Indenture); provided that a
Restricted Subsidiary may not incur any Indebtedness under this clause (14) of Section
4.09(b) unless the Company’s Operating Cash Flow Ratio is less than 7.5 to 1.0 and the
Adjusted Operating Cash Flow Ratio of such Restricted Subsidiary is less than 6.0 to 1.0;
and




     (15) the incurrence by the Company of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge
any Indebtedness incurred pursuant to this clause (15) of Section 4.09(b), not to exceed
$50.0 million.



     For purposes of determining compliance with this Section 4.09, in the event that an item of
proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (15) of this Section 4.09(b), or is entitled to be incurred
pursuant to Section 4.09(a), the Company will be permitted to classify such item of Indebtedness on
the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in
any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding
on the date on which the Notes are first issued and authenticated under this Indenture will
initially be deemed to have been incurred on such date in reliance



54









 




on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of
interest, the accretion or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of
Preferred Stock as Indebtedness due to a change in accounting principles, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified
Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock
for purposes of this Section 4.09. Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to
this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange
rates or currency values.




     The amount of any Indebtedness outstanding as of any date will be:




     (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;




     (2) the principal amount of the Indebtedness, in the case of any other Indebtedness;
and




     (3) in respect of Indebtedness of another Person secured by a Lien on the assets of the
specified Person, the lesser of:




     (A) the Fair Market Value of such asset at the date of determination, and




     (B) the amount of the Indebtedness of the other Person.



Section 4.10 Asset Sales.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless:




     (1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of; and




     (2) at least 75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this
provision, each of the following will be deemed to be cash or Cash Equivalents:




     (A) any liabilities, as shown on the Company’s most recent consolidated balance
sheet, of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes) that
are assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are, within 180 days of the
Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the
extent of the cash received in that conversion; and




     (C) any stock or assets of the kind referred to in clauses (3) or (4) of the
next paragraph of this Section 4.10.



55









 





     Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the
applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:




     (1) to repay Senior Debt and, if the Senior Debt repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;




     (2) to the repurchase of the Notes and other Indebtedness of the Company ranking equal
in right of payment to the Notes or Indebtedness of any Restricted Subsidiary containing
similar provisions with respect to the repurchase of such Indebtedness with the net proceeds
of asset sales, pursuant to an Asset Sale Offer;




     (3) to acquire all or substantially all of the assets of, or a majority of the Voting
Stock of, another Permitted Business, if after giving effect to any such acquisition of
Voting Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;




     (4) to make a capital expenditure;




     (5) to acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business; or




     (6) any combination of the foregoing clauses (1) through (5) of this paragraph.


Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving
credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this
Indenture.




     Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second
paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of
Excess Proceeds exceeds $20.0 million, within five Business Days days thereof the Company will make
an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari
passu with the Notes containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with
Section 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale
Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any
purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Company will select the Notes and such other pari passu Indebtedness to be purchased
on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, will be
purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset
at zero.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the Asset Sale
provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under
Section 3.09 hereof or this Section 4.10 by virtue of such compliance.



56









 





Section 4.11 Transactions with Affiliates.




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




     (1) the Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person; and




     (2) the Company delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $7.5 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with clause (1) of
this Section 4.11(a) and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors of the Company; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $15.0 million, an
opinion as to the fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.



     (b) However, Section 4.11 will not limit, or be applicable to any agreement in effect on the
date of this Indenture and any amendments, extensions or renewals of any such agreement, so long as
any such amendment, extension or renewal is not materially more disadvantageous, taken as a whole,
to the Company or to any Restricted Subsidiary as the original agreement in effect on the date of
this Indenture. Additionally, the following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:




     (1) any employment agreement, employee benefit plan, officer or director
indemnification agreement or any similar arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and payments pursuant
thereto;




     (2) transactions between or among the Company and/or its Restricted Subsidiaries;




     (3) transactions with a Person that is an Affiliate of the Company solely because the
Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or
controls, such Person;




     (4) payment of reasonable directors’ fees to Persons who are not otherwise Affiliates
of the Company;




     (5) reasonable and customary indemnity provided on behalf of officers, directors and
employees of the Company or any Restricted Subsidiary of the Company;



57









 






     (6) loan or advances to employees in the ordinary course of business not to exceed $1.0
million in the aggregate at any one time outstanding;




     (7) any issuance of Equity Interests (other than Disqualified Stock) of the Company to
Affiliates or employees of the Company and its Subsidiaries; and




     (8) Restricted Payments that do not violate the provisions of Section 4.07 hereof.



Section 4.12 Liens.




     The Company will not and will not permit any of its Restricted Subsidiaries to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) securing Indebtedness or trade payables upon any of their property or assets, now
owned or hereafter acquired, unless all payments due under this Indenture and the Notes are secured
on an equal and ratable basis with the obligations so secured until such time as such obligations
are no longer secured by a Lien.



Section 4.13 Business Activities.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any
business other than Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole.



Section 4.14 Corporate Existence.




     Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such Subsidiary; and




     (2) the rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to the Holders
of the Notes.



Section 4.15 Offer to Repurchase Upon Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to
101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and
Liquidated Damages, if any, on the Notes repurchased to the date of purchase, subject to the rights
of Holders on the relevant record date to receive interest due on the relevant interest payment
date (the “Change of Control Payment”). Within ten days following any Change of Control, the
Company will mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and stating:



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     (1) that the Change of Control Offer is being made pursuant to this Section 4.15 and
that all Notes tendered will be accepted for payment;




     (2) the purchase price and the purchase date, which shall be no earlier than 30 days
and no later than 60 days from the date such notice is mailed (the “Change of Control
Payment Date”);




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




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




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




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




     (7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to a minimum of $2,000 in principal amount or an integral
multiple of $1,000 in excess thereof.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change in Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions
of Sections 3.09 or 4.15 hereof, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or
this Section 4.15 by virtue of such compliance.



     (b) On the Change of Control Payment Date, the Company will, to the extent lawful:




     (1) accept for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer;




     (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and




     (3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.



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     The Paying Agent will promptly furnish each Holder of Notes properly tendered the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.



     (c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 and Section 3.09 hereof and purchases all Notes
properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption
has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of
the applicable redemption price.



     (d) Any Change of Domicile transaction will not be deemed a Change of Control under this
Indenture. In addition, the creation of, or the merger, amalgamation, combination, or consolidation
of the Company with or into a wholly owned Restricted Subsidiary for the purpose of forming a
holding company whose only substantial asset is the Capital Stock of the Company will not be deemed
a Change of Control under this Indenture, and any such holding company structure will be
disregarded.



Section 4.16 No Layering of Debt.




     The Company will not incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is contractually subordinate or junior in right of payment to any Senior Debt
of the Company and senior in right of payment to the Notes. No such Indebtedness will be
considered to be senior by virtue of being secured on a first or junior priority basis.



Section 4.17 Payments for Consent.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.



Section 4.18 Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary
is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an
Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation
and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one
or more clauses of the definition of Permitted Investments or under one or more clauses of the
definition of Permitted Investments, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the
Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that
redesignation would not cause a Default.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of
Directors of the



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Company giving effect to such designation and an Officers’ Certificate certifying that such
designation complied with the preceding conditions and was permitted by under Section 4.07 hereof
or under one or more clauses of the definition of Permitted Investments or under one or more
clauses of the definition of Permitted Investments, as determined by the Company. If, at any time,
any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary of the Company for purposes
of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted
under Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors
of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be in existence
following such designation.




Section 4.19 Changes in Covenants when Notes Rated Investment Grade.




     If on any date following the date of this Indenture:




     (1) the Notes are rated Baa3 or better by Moody’s (or any successor company acquiring
all or substantially all of its assets) and BBB- or better by S&P (or any successor company
acquiring all or substantially all of its assets) (or, if either such entity ceases to exist
or ceases to rate the Notes for reasons outside of the control of the Company, the
equivalent investment grade credit rating from any other “nationally recognized statistical
rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act
selected by the Company as a replacement agency); and




     (2) no Default or Event of Default shall have occurred and be continuing (other than
with respect to the covenants specifically listed under the following captions),


then, beginning on that day and subject to the provisions of the following paragraph, the covenants
set forth in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.15 and clauses (3) (to the extent that
a Default or Event of Default exists under one or more of Sections specifically listed in this
sentence) and (4) of Section 5.01 will be suspended.




     Notwithstanding the foregoing, if the rating assigned by either such rating agency should
subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be
reinstituted as of and from the date of such rating decline and any actions taken, or omitted to be
taken, before such rating decline that would have been prohibited had the foregoing covenants been
in effect shall not form the basis for a Default or an Event of Default. Calculations under the
reinstated “Restricted Payments” covenant will be made as if the “Restricted Payments” covenant had
been in effect since the date of this Indenture except that no Default or Event of Default will be
deemed to have occurred solely by reason of a Restricted Payment made while that covenant was
suspended. All Indebtedness incurred by the Company and its Restricted Subsidiaries while the
covenant in Section 4.09 was suspended that would not have been permitted to be incurred under the
covenant had such covenant been applicable shall be deemed “Existing Indebtedness.” All Liens
incurred by the Company and its Restricted Subsidiaries while the covenant in Section 4.12 was
suspended that would not have been permitted to be incurred under the covenant had such covenant
been applicable shall be deemed “Permitted Liens.”



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ARTICLE 5

SUCCESSORS




Section 5.01 Merger, Consolidation, or Sale of Assets.




     The Company may not, directly or indirectly: (1) consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another
Person; unless:




     (1) either: (a) the Company is the surviving corporation; or (b) the Person formed by
or surviving any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, conveyance or other disposition has been made is a corporation
organized or existing under the laws of the United States, any state of the United States or
the District of Columbia;




     (2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, conveyance or other
disposition has been made assumes all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee;




     (3) immediately after such transaction, no Default or Event of Default exists; and




     (4) the Company or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, conveyance or
other disposition has been made:




     (A) on the date of such transaction after giving pro forma effect thereto and
any related financing transactions as if the same had occurred at the beginning of
the applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Operating Cash Flow Ratio test set forth in
Section 4.09(a) hereof, or




     (B) the Operating Cash Flow Ratio for the Company, or its permitted successor
or transferee, will, on the date of such transaction after giving pro forma effect
thereto and for any related financing transactions as if the same had occurred at
the beginning of the applicable four-quarter period, not be greater than the
Operating Cash Flow Ratio for the Company immediately prior to such transaction.



     In addition, the Company will not, directly or indirectly, lease all or substantially all of
the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more
related transactions, to any other Person.



     This Section 4.09 will not apply to:




     (1) a Change of Domicile transaction; or




     (2) any consolidation or merger or any sale, assignment, transfer, conveyance, lease or
other disposition of assets between or among the Company and its Restricted Subsidiaries.



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Section 5.02 Successor Corporation Substituted.




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



ARTICLE 6

DEFAULTS AND REMEDIES




Section 6.01 Events of Default.




     Each of the following is an “Event of Default”:




     (1) default for 30 days in the payment when due of interest on, or Liquidated Damages,
if any, with respect to, the Notes, whether or not prohibited by the subordination
provisions of this Indenture;




     (2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes, whether or not prohibited by the
subordination provisions of this Indenture;




     (3) failure by the Company or any of its Restricted Subsidiaries to comply for more
than thirty days after notice to the Company by the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding voting as a single class with
Section 4.10 and 4.15 hereof (other than the failure to purchase Notes);




     (4) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in this Indenture;




     (5) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, if that default:




     (A) is caused by a failure to pay principal of, or interest or premium, if any,
on, such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or



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     (B) results in the acceleration of such Indebtedness prior to its express
maturity,




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $20.0 million
or more;




     (6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of $20.0
million, excluding amounts covered by insurance, which judgments are not paid, discharged or
stayed for a period of 60 days;




     (7) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:




     (A) commences a voluntary case,




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




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




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




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




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




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




     (B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or




     (C) orders the liquidation of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary;




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



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Section 6.02 Acceleration.




     In the case of an Event of Default specified in clause (7) or (8) of Section 6.01 hereof, with
respect to the Company, any Restricted Subsidiary of the Company that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable immediately without
further action or notice. If any other Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare
all the Notes to be due and payable immediately. Upon any such declaration, the Notes shall become
due and payable immediately.



     The Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration and its
consequences, if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium or Liquidated Damages, if
any, that has become due solely because of the acceleration) have been cured or waived.



Section 6.03 Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium and Liquidated Damages, if any, and interest on the
Notes or to enforce the performance of any provision of the Notes or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.



Section 6.04 Waiver of Past Defaults.




     Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and Liquidated Damages, if any, or interest on,
the Notes (including in connection with an offer to purchase); provided, however, that the Holders
of a majority in aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.



Section 6.05 Control by Majority.




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



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Section 6.06 Limitation on Suits.




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




     (1) such Holder has previously given to the Trustee notice that an Event of Default is
continuing;




     (2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes
have requested the Trustee to pursue the remedy;




     (3) such Holder or Holders have offered the Trustee satisfactory security or indemnity
against any loss, liability or expense;




     (4) the Trustee has not complied with such request within 60 days after receipt of the
request and the offer of security or indemnity; and




     (5) Holders of a majority in aggregate principal amount of the then outstanding Notes
have not given the Trustee a direction inconsistent with such request.



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



Section 6.07 Rights of Holders of Notes to Receive Payment.




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



Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium and Liquidated Damages, if any,
and interest remaining unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.



Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07



66









 




hereof. To the extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the Holders may be entitled
to receive in such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.




Section 6.10 Priorities.




     If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the
money or property in the following order:




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




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




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



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



Section 6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in aggregate principal amount of the then outstanding Notes.



ARTICLE 7

TRUSTEE




Section 7.01 Duties of Trustee.




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



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




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




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



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




     (1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;




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




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



     (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.



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



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



Section 7.02 Rights of Trustee.




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



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



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



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



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



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



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



     (h) The Trustee shall not be charged with knowledge of an Default or Event of Default except
(i) any Default or Event of Default of which the Trustee shall have received written notification
from the Company or the Holders or (ii) any Default or Event of Default of which the Trustee has
obtained actual knowledge.



     (i) The rights, privileges, protections, immunities and benefits given to the Trustee
including without limitation, its rights to be indemnified are extended to and shall be enforced by
the Trustee in its capacities hereunder and each agent, custodian and other person employed to act
hereunder.



     (j) The permissive rights of the Trustee to take certain actions under this Indenture shall
not be construed as a duty unless so specified herein.



Section 7.03 Individual Rights of Trustee.




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



Section 7.04 Trustee’s Disclaimer.




     The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent



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other than the Trustee, and it will not be responsible for any statement or recital herein or
any statement in the Notes or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.




Section 7.05 Notice of Defaults.




     If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium or Liquidated Damages, if any, or interest on, any Note, the Trustee may withhold the
notice if and so long as a Responsible Officer or committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders of the Notes.



Section 7.06 Reports by Trustee to Holders of the Notes.




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



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



Section 7.07 Compensation and Indemnity.




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



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



     (c) The obligations of the Company under this Section 7.07 will survive the satisfaction and
discharge of this Indenture.



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     (d) To secure the Company’s payment obligations in this Section 7.07, the Trustee will have a
Lien prior to the Notes on all money or property held or collected by the Trustee. Such Lien will
survive the satisfaction and discharge of this Indenture.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(7) or (8) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



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



Section 7.08 Replacement of Trustee.




     (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.



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




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




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




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




     (4) the Trustee becomes incapable of acting.



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



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



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



     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof.




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Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.




Section 7.09 Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act will be the successor Trustee.



Section 7.10 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.



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



Section 7.11 Preferential Collection of Claims Against Company.




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



ARTICLE 8



LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




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



Section 8.02 Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Company will be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes, which will thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except for the following
provisions which will survive until otherwise terminated or discharged hereunder:



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     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium and Liquidated Damages, if any, on, such Notes when
such payments are due from the trust referred to in Section 8.04 hereof;




     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




     (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith; and




     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.



Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 hereof and clause (4) of Section 5.01
hereof with respect to the outstanding Notes on and after the date the conditions set forth in
Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will
thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and will have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply will not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of
this Indenture and such Notes will be unaffected thereby. In addition, upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(6)
hereof will not constitute Events of Default.



Section 8.04 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof:




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



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     (2) in the case of an election under Section 8.02 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that:




     (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (B) since the date of this Indenture, there has been a change in the applicable
federal income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;




     (3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;




     (4) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the Company is a party or by
which the Company is bound;




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




     (6) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and




     (7) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions provided for in, in the case of the Officers’
Certificates, clauses (1) through (6) of this Section 8.04 and, in the case of Opinions of
Counsel clauses (2) and/or (3) and (5) of this Section 8.04, have been complied with..


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




     Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as



74









 







Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and
to become due thereon in respect of principal, premium and Liquidated Damages, if any, and
interest, but such money need not be segregated from other funds except to the extent required by
law.



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



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.



Section 8.06 Repayment to Company.




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



Section 8.07 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this Indenture and the Notes
will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium or Liquidated Damages, if any, or interest on,
any Note following the reinstatement of its obligations, the Company will be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.



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ARTICLE 9



AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.




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




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




     (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;




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




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




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




     (6) to conform the text of this Indenture or the Notes to any provision of the
“Description of the Notes” section of the Company’s Offering Memorandum dated May 24, 2008,
relating to the initial offering of the Notes, to the extent that such provision in that
“Description of the Notes” was intended (such intent to be set forth in an officer’s
certificate to the Trustee at the time of such amendment or supplement) to be a verbatim
recitation of a provision of this Indenture or the Notes; or




     (7) to provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture as of the date hereof.



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



Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, and subject to Section 10.13, the Company and
the Trustee may amend or supplement this Indenture (including, without limitation, Section 3.09,
4.10 and 4.15 hereof) and the Notes with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including, without limitation, Additional
Notes, if any) voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium or Liquidated Damages, if any, or
interest on, the Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Notes may be waived with the
consent of the Holders of a majority in aggregate principal amount of the



76









 







then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
will not be obligated to, enter into such amended or supplemental Indenture.



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



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




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




     (2) reduce the principal of or change the fixed maturity of any Note or alter or waive
any of the provisions with respect to the redemption of the Notes (except as provided above
with respect to Sections 3.09, 4.10 and 4.15 hereof);




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




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




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




     (6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of, or interest
or premium or Liquidated Damages, if any, on, the Notes;




     (7) waive a redemption payment with respect to any Note (other than a payment required
by Sections 3.09, 4.10 or 4.15 hereof); or



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     (8) make any change in the preceding amendment and waiver provisions.



     In addition, any amendment to, or waiver of, the provisions of Section 10 of this Indenture
that adversely affects the rights of the Holders of the Notes will require the consent of the
Holders of at least 75% in aggregate principal amount of Notes then outstanding.



Section 9.03 Compliance with Trust Indenture Act.




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



Section 9.04 Revocation and Effect of Consents.




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



Section 9.05 Notation on or Exchange of Notes.




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



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



Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be
fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture.



ARTICLE 10



SUBORDINATION




Section 10.01 Agreement to Subordinate.




     The Company agrees, and each Holder by accepting a Note agrees, that the Indebtedness
evidenced by the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full of all Senior Debt (whether outstanding
on the date hereof or



78









 







hereafter created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.



Section 10.02 Liquidation; Dissolution; Bankruptcy.




     Upon any distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating
to the Company or its property, in an assignment for the benefit of creditors or any marshaling of
the Company’s assets and liabilities:




     (1) holders of Senior Debt will be entitled to receive payment in full of all
Obligations due in respect of such Senior Debt (including interest after the commencement of
any bankruptcy proceeding at the rate specified in the applicable Senior Debt) before the
Holders of Notes will be entitled to receive any payment with respect to the Notes (except
that Holders of Notes may receive and retain Permitted Junior Securities and payments made
from any defeasance trust created pursuant to Section 8.01 hereof); and




     (2) until all Obligations with respect to Senior Debt (as provided in clause (1) above)
are paid in full, any distribution to which Holders would be entitled but for this Article
10 will be made to holders of Senior Debt (except that Holders of Notes may receive and
retain Permitted Junior Securities and payments made from any defeasance trust created
pursuant to Section 8.01 hereof), as their interests may appear.



Section 10.03 Default on Designated Senior Debt.




     (a) The Company may not make any payment or distribution to the Trustee or any Holder in
respect of Obligations with respect to the Notes and may not acquire from the Trustee or any Holder
any Notes for cash or property (other than Permitted Junior Securities and payments made from any
defeasance trust created pursuant to Section 8.01 hereof) until all principal and other Obligations
with respect to the Senior Debt have been paid in full if:




     (1) payment default on Senior Debt occurs and is continuing beyond any applicable grace
period in the agreement, indenture or other document governing such Senior Debt; or




     (2) any other default occurs and is continuing on any series of Senior Debt that
permits holders of that series of Senior Debt to accelerate its maturity and the Trustee
receives a notice of such default (a “Payment Blockage Notice”) from the Company of the
holders of any Senior Debt. If the Trustee receives any such Payment Blockage Notice, no
subsequent Payment Blockage Notice will be effective for purposes of this Section 10.03
unless and until at least 360 days have elapsed since the effectiveness of the immediately
prior Payment Blockage Notice.



     No nonpayment default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee may be, or may be made, the basis for a subsequent Payment Blockage
Notice unless such default has have been cured or waived for a period of not less than 90
consecutive days.



     (b) The Company may and will resume payments on and distributions in respect of the Notes and
may acquire them upon the earlier of:




     (1) in the case of a payment default, upon the date upon which such default is cured or
waived, or



79









 






     (2) in the case of a nonpayment default, upon the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received, unless the maturity of any Designated Senior Debt has
been accelerated,


if this Article 10 otherwise permits the payment, distribution or acquisition at the time of such
payment or acquisition.




Section 10.04 Acceleration of Notes.




     If payment of the Notes is accelerated because of an Event of Default, the Company will
promptly notify holders of Senior Debt of the acceleration.



Section 10.05 When Distribution Must Be Paid Over.




     In the event that the Trustee or any Holder receives any payment of any Obligations with
respect to the Notes (other than Permitted Junior Securities and payments made from any defeasance
trust created pursuant to Section 8.01 hereof) at a time when the Trustee or such Holder, as
applicable, has actual knowledge that such payment is prohibited by Section 10.03 hereof, such
payment will be held by the Trustee or such Holder, in trust for the benefit of, and will be paid
forthwith over and delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the agreement, indenture or other document (if
any) pursuant to which Senior Debt may have been issued, as their respective interests may appear,
for application to the payment of all Obligations with respect to Senior Debt remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior Debt.



     With respect to the holders of Senior Debt, the Trustee undertakes to perform only those
obligations on the part of the Trustee as are specifically set forth in this Article 10, and no
implied covenants or obligations with respect to the holders of Senior Debt will be read into this
Indenture against the Trustee. The Trustee will not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and will not be liable to any such holders if the Trustee pays over or
distributes to or on behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Debt are then entitled by virtue of this Article 10, except if such payment
is made as a result of the willful misconduct or gross negligence of the Trustee.



Section 10.06 Notice by Company.




     The Company will promptly notify the Trustee and the Paying Agent in writing of any facts
known to the Company that would cause a payment of any Obligations with respect to the Notes to
violate this Article 10, but failure to give such notice will not affect the subordination of the
Notes to the Senior Debt as provided in this Article 10.



Section 10.07 Subrogation.




     After all Senior Debt is paid in full and until the Notes are paid in full, Holders of Notes
will be subrogated (equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Debt to receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the Holders of Notes have been applied to the
payment of Senior Debt. A distribution made under this Article 10 to holders of Senior Debt that
otherwise would have been made to Holders of Notes is not, as between the Company and Holders, a
payment by the Company on the Notes.



80









 





Section 10.08 Relative Rights.




     This Article 10 defines the relative rights of Holders of Notes and holders of Senior Debt.
Nothing in this Indenture will:




     (1) impair, as between the Company and Holders of Notes, the obligation of the Company,
which is absolute and unconditional, to pay principal of, premium and interest and
Liquidated Damages, if any, on, the Notes in accordance with their terms;




     (2) affect the relative rights of Holders of Notes and creditors of the Company other
than their rights in relation to holders of Senior Debt; or




     (3) prevent the Trustee or any Holder of Notes from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders and owners of Senior
Debt to receive distributions and payments otherwise payable to Holders of Notes.



     If the Company fails because of this Article 10 to pay principal of, premium or interest or
Liquidated Damages, if any, on, a Note on the due date, the failure is still a Default or Event of
Default.



Section 10.09 Subordination May Not Be Impaired by Company.




     No right of any holder of Senior Debt to enforce the subordination of the Indebtedness
evidenced by the Notes may be impaired by any act or failure to act by the Company or any Holder or
by the failure of the Company or any Holder to comply with this Indenture.



Section 10.10 Distribution or Notice to Representative.




     Whenever a distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.



     Upon any payment or distribution of assets of the Company referred to in this Article 10, the
Trustee and the Holders of Notes will be entitled to rely upon any order or decree made by any
court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders of Notes for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 10.



Section 10.11 Rights of Trustee and Paying Agent.




     Notwithstanding the provisions of this Article 10 or any other provision of this Indenture,
the Trustee will not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee has received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written notice of facts that
would cause the payment of any Obligations with respect to the Notes to violate this Article 10.
Only the Company or a Representative may give the notice. Nothing in this Article 10 will impair
the liens or claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.



     The Trustee in its individual or any other capacity may hold Senior Debt with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights.



81









 





Section 10.12 Authorization to Effect Subordination.




     Each Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the Trustee
on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 10, and appoints the Trustee to act as such Holder’s
attorney-in-fact for any and all such purposes.



Section 10.13 Amendments.




     The provisions of this Article 10 may not be amended or modified without the written consent
of the holders of all Senior Debt. In addition, any amendment to, or waiver of, the provisions of
this Article 10 that adversely affects the rights of the Holders of the Notes will require the
consent of the Holders of at least 75% in aggregate principal amount of Notes then outstanding.



ARTICLE 11



SATISFACTION AND DISCHARGE




Section 11.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when:




     (1) either:




          (a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company, have been delivered to the Trustee for
cancellation; or




          (b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Company has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the
Trustee for cancellation for principal, premium and Liquidated Damages, if any, and accrued
interest to the date of maturity or redemption;




     (2) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a party or by which
the Company is bound;




     (3) the Company has paid or caused to be paid all sums payable by it under this
Indenture; and




     (4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.



82









 




In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied,
provided that any such counsel may rely on any Officers’ Certificates as to matters of fact
(including as to compliance with the foregoing clauses (1), (2) and (3) of this Section 11.01).




     Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01, the provisions of
Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be
deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.



Section 11.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium and Liquidated Damages, if any) and
interest for whose payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the
Company has made any payment of principal of, premium or Liquidated Damages, if any, or interest
on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Notes to receive such payment from the money or Government
Securities held by the Trustee or Paying Agent.



ARTICLE 12



MISCELLANEOUS




Section 12.01 Trust Indenture Act Controls.




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



Section 12.02 Notices.




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



83









 






If to the Company:




Rural Cellular Corporation

3905 Dakota Street, S.W.

Alexandria, MN 56308

Facsimile No.: (320) 808-2108

Attention: Suzanne S. Allen




With a copy to:




Skadden, Arps, Slate, Meagher & Flom LLP

333 West Wacker Drive, Suite 2100

Chicago, IL 60606

Facsimile No.: (312) 407-8504

Attention: Gary Cullen, Esq.




If to the Trustee:




Wells Fargo Bank, N.A.

Corporate Trust Services

Sixth & Marquette; N9303-120

Minneapolis, MN 55479

Facsimile No.: (612) 667-9825

Attention: Rural Cellular Corporation Administrator



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



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.



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



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



84









 





Section 12.03 Communication by Holders of Notes with Other Holders of Notes.




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



Section 12.04 Certificate and Opinion as to Conditions Precedent.




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




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.



Section 12.05 Statements Required in Certificate or Opinion.




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




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




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




     (3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




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



Section 12.06 Rules by Trustee and Agents.




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



Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.




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



85









 







are part of the consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.



Section 12.08 Governing Law.




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



Section 12.09 No Adverse Interpretation of Other Agreements.




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



Section 12.10 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors.



Section 12.11 Severability.




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



Section 12.12 Counterpart Originals.




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



Section 12.13 Table of Contents, Headings, etc.




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



[Signatures on following page]




86









 








SIGNATURES




Dated as of May 30, 2007




	 	 	 	 	 
	 	RURAL CELLULAR CORPORATION

 	 
	 	By:  	/s/ Wesley E. Schultz
 	 
	 	 	Name:  	Wesley E. Schultz 	 
	 	 	Title:  	Executive Vice President and Chief
Financial Officer 	 
	 



	 	 	 	 	 
	 	WELLS FARGO BANK, National Association, as Trustee

 	 
	 	By:  	/s/ Jane Y. Schweiger
 	 
	 	 	Name:  	Jane Y. Schweiger 	 
	 	 	Title:  	Vice President 	 
	 








 









 











EXHIBIT A




[Face of Note]



 




CUSIP/CINS                     




Floating Rate Senior Subordinated Notes due 2013




			
	 	 	 
	No. ___
	 	$                    






RURAL CELLULAR CORPORATION




promises to pay to [                    ] or registered assigns,




the principal sum of                                                              DOLLARS on ___, 20___.




Interest Payment Dates: March 1, June 1, September 1 and December 1




Record Dates: February 15, May 15, August 15 and November 15




Dated:                     , 20__




	 	 	 	 	 
	 	RURAL CELLULAR CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



This is one of the Notes referred to

in the within-mentioned Indenture:




WELLS FARGO BANK, N.A.,

      as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 





 




A-1









 





[Back of Note]

Floating Rate Senior Subordinated Notes due 2013




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




[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]




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




     (1) Interest. Rural Cellular Corporation, a Minnesota corporation (the
“Company”), promises to pay interest on the principal amount of this Note at a rate per
annum, reset quarterly, equal to LIBOR plus 3.00% from May 30, 2007 until maturity and
shall pay the Liquidated Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and Liquidated Damages,
if any, quarterly in arrears on March 1, June 1, September 1 and December 1 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each, an
“Interest Payment Date”). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note
is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further that the first Interest Payment Date shall be September 1,
2007. The Company will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect to the extent
lawful; it will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if any, (without
regard to any applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.




     (2) Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are registered
Holders of Notes at the close of business on the February 15, May 15, August 15 or November
15 preceding the next Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium and Liquidated Damages, if any, and interest at the office or agency of
the Company maintained for such purpose within or without the City Minneapolis, Minnesota,
or, at the option of the Company, payment of interest and Liquidated Damages, if any, may be
made by check mailed to the Holders at their addresses set forth in the register of Holders;
provided that payment by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Liquidated Damages, if any, on, all Global
Notes and all other Notes the Holders of which will have provided wire transfer instructions
to the Company or the Paying Agent. Such payment will be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts.




     (3) Paying Agent and Registrar. Initially, Wells Fargo Bank, N.A., the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.



A-2









 






     (4) Indenture. The Company issued the Notes under an Indenture dated as of
May 30, 2007 (the “Indenture”) between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to
the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes are unsecured obligations of the Company. The
Indenture does not limit the aggregate principal amount of Notes that may be issued
thereunder.




     (5) Optional Redemption.



     (a) Except as set forth in subparagraph (b) of this Paragraph 5, the Company will not have the
option to redeem the Notes prior to June 1, 2008. On or after June 1, 2008, the Company will have
the option to redeem all or a part of the Notes upon not less than 30 nor more than 60 days’
notice, at the redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes redeemed to the
applicable redemption date, if redeemed during the twelve-month period beginning on June 1 of the
years indicated below, subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date:



	 	 	 	 	 
	Year	 	Percentage
	2008
	 	 	102.000	%
	2009
	 	 	101.000	%
	2010 and thereafter
	 	 	100.000	%






     Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.



     Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to
June 1, 2008, the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture with the net cash proceeds of an Equity
Offering at a redemption price equal to 100% of the aggregate principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages, if any to the redemption date; provided that at
least 65% in aggregate principal amount of the Notes issued under the Indenture (excluding Notes
held by the Company and its Subsidiaries, but including the principal amount of any Additional
Notes) remains outstanding immediately after the occurrence of such redemption and that such
redemption occurs within 90 days of closing of such Equity Offering.



     (b) At any time prior to June 1, 2008, the Company may also redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each
Holder’s registered address, at a redemption price equal to 100% of the principal amount of the
Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to the Redemption Date, subject to the rights of Holders of Notes on the relevant
record date to receive interest due on the relevant interest payment date.




     (6) Mandatory Redemption.



     The Company is not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.




     (7) Repurchase at the Option of Holder.



A-3









 






          (a) Upon the occurrence of a Change of Control, the Company will make an offer (a
“Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or
an integral multiple of $1,000 in excess of $2,000 thereof) of that Holder’s Notes at a
purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased
plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes repurchased to
the date of purchase, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date (the “Change of Control
Payment”). Within 10 days following any Change of Control, the Company will mail a notice to
each Holder setting forth the procedures governing the Change of Control Offer as required
by the Indenture.




          (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $20.0 million, the Company will commence an offer to all Holders of Notes and all
holders of other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in the Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets (an “Asset Sale Offer”) pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes (including any Additional Notes)
and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in
accordance with the procedures set forth in the Indenture. To the extent that the aggregate
amount of Notes (including any Additional Notes) and other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to
the Notes.




     (8) Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address, except that redemption notices may be mailed 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 or discharge of the Indenture. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.




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



A-4









 






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




     (11) Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes including
Additional Notes, if any, voting as a single class, and any existing Default or Event or
Default or compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class. Without the
consent of any Holder of a Note, the Indenture or the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of the
Company’s obligations to Holders of the Notes in case of a merger or consolidation, to make
any change that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under the Indenture of any such Holder,
to comply with the requirements of the SEC in order to effect or maintain the qualification
of the Indenture under the TIA, to conform the text of the Indenture or the Notes to any
provision of the “Description of the Notes” section of the Company’s Offering Memorandum
dated May 24, 2008, relating to the initial offering of the Notes, to the extent that such
provision in that “Description of Notes” was intended to be a verbatim recitation of a
provision of the Indenture or the Notes; or to provide for the issuance of Additional Notes
in accordance with the limitations set forth in the Indenture.




     (12) Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest on, or Liquidated Damages, if any, with respect to,
the Notes, whether or not prohibited by the subordination provisions of the Indenture; (ii)
default in the payment when due (at maturity, upon redemption or otherwise) of the principal
of, or premium, if any, on, the Notes, whether or not prohibited by the subordination
provisions of this Indenture, (iii) failure by the Company or any of its Restricted
Subsidiaries to comply for more than thirty days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class with Section 4.10 and 4.15 of the Indenture (other than the
failure to purchase Notes); (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding voting as a single
class to comply with any of the other agreements in the Indenture; (v) default under any
mortgage, indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of the Indenture, if that default (A) is caused by a failure to pay principal
of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default (a “Payment
Default”), or (B) results in the acceleration of such Indebtedness prior to its express
maturity and, in each of case (A) and (B), the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, aggregates $20.0 million
or more; (vi) certain final judgments for the payment of money that remain undischarged for
a period of 60 days; and (vii) certain events of bankruptcy or insolvency with respect to
the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary. If any Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes may



A-5









 







declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes except as provided in
the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default relating to the payment of
principal or interest or premium or Liquidated Damages, if any,) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders
of all of the Notes, rescind an acceleration or waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or premium or Liquidated Damages, if any, on, or the
principal of, the Notes. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.




     (13) Subordination. Payment of principal, interest and premium and Liquidated
Damages, if any, on the Notes is subordinated to the prior payment in full of all Senior
Debt of the Company, including amounts outstanding under the Credit Agreement, the Senior
Notes, the Senior Unsecured Notes and Senior Debt incurred after the date of the Indenture,
on the terms provided in the Indenture.




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




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




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




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




     (18) Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all
the rights set forth in the Registration Rights Agreement dated as of May 30, 2007, between
the Company and the Initial Purchaser or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in
one or more registration rights agreements, if any, between the Company and the other
parties thereto, relating



A-6









 







to rights given by the Company to the purchasers of any Additional Notes (collectively,
the “Registration Rights Agreement”).




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




     (20) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND
BE USED TO CONSTRUE THE INDENTURE, THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.



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



Rural Cellular Corporation

3905 Dakota Street, SW

Alexandria, Minnesota 56308

Attention: Suzanne S. Allen




A-7









 





Assignment Form




     To assign this Note, fill in the form below:



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

	 	 
	 

	 	(Insert assignee’s legal name)





 



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



 



 



 



 



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




	 	 	 
	and irrevocably appoint
	 	 
	 

	 	 





to transfer this Note on the books of the Company. The agent may substitute another to act for
him.




Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

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







Signature Guarantee*:                                                             






 




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




A-8









 










Rural Cellular Corporation

3905 Dakota Street, SW

Alexandria, Minnesota 56308




Wells Fargo Bank, National Association

Corporate Trust Services

Sixth and Marquette, N9303-120

Minneapolis, MN 55479




Option of Holder to Elect Purchase




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



	 	 	 
	Ň Section 4.10
	 	Ň Section 4.15






     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:



$                    




Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

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

	 
	 	 	 	 
	 

	 	Tax Identification No.:	 	 
	 

	 	 	 	 






Signature Guarantee*:                                         






 




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




A-9









 










Schedule of Exchanges of Interests in the Global Note 




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



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






A-10









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Rural Cellular Corporation

3905 Dakota Street, SW

Alexandria, Minnesota 56308




Wells Fargo Bank, National Association

Corporate Trust Services

Sixth and Marquette, N9303-120

Minneapolis, MN 55479




     Re: Floating Rate Senor Subordinated Notes due 2013



(CUSIP                     )




     Reference is hereby made to the Indenture, dated as of May 30, 2007 (the “Indenture”), between
Rural Cellular Corporation as issuer (the “Company”), and Wells Fargo Bank, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.



                                             , (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $                     in such
Note[s] or interests (the “Transfer”), to                                          (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




     1. o Check if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own account, or for one
or more accounts with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.



     2. o Check if Transferee will take delivery of a beneficial interest in the Regulation S
Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
Person in the United States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration



B-1









 







requirements of the Securities Act and (iv) if the proposed transfer is being made prior to
the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive
Note and in the Indenture and the Securities Act.



     3. o Check and complete if Transferee will take delivery of a beneficial interest in the
IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):




     (a) o such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;



or





     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or





     (c) o such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act;



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor and
pursuant to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the IAI Global Note and/or the Restricted
Definitive Notes and in the Indenture and the Securities Act.



     4. o Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.



     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement



B-2









 







Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.



     (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.



     (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	[Insert Name of Transferor]
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






     Dated:                                         




B-3









 








ANNEX A TO CERTIFICATE OF TRANSFER




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




[CHECK ONE OF (a) OR (b)]




          (a) o a beneficial interest in the:





     (i) o 144A Global Note (CUSIP                     ), or




     (ii) o Regulation S Global Note (CUSIP                     ), or




     (iii) o IAI Global Note (CUSIP                     ); or



          (b) o a Restricted Definitive Note.




2. After the Transfer the Transferee will hold:




[CHECK ONE]




          (a) o a beneficial interest in the:





     (i) o 144A Global Note (CUSIP                     ), or




     (ii) o Regulation S Global Note (CUSIP                     ), or




     (iii) o IAI Global Note (CUSIP                     ); or




     (iv) o Unrestricted Global Note (CUSIP                     ); or



          (b) o a Restricted Definitive Note; or




          (c) o an Unrestricted Definitive Note,




          in accordance with the terms of the Indenture.





B-4









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Rural Cellular Corporation

3905 Dakota Street, SW

Alexandria, Minnesota 56308




Wells Fargo Bank, National Association

Corporate Trust Services

Sixth and Marquette, N9303-120

Minneapolis, MN 55479




     Re: Floating Rate Senor Subordinated Notes due 2013



(CUSIP                     )




     Reference is hereby made to the Indenture, dated as of May 30, 2007 (the “Indenture”), between
Rural Cellular Corporation as issuer (the “Company”), and Wells Fargo Bank, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.



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



     1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.



     (b) o Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in



C-1









 







compliance with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



     (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In
connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.



     2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



     (b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE]
o 144A Global Note,
o Regulation S Global Note, o IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	[Insert Name of Trustee]
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Dated:                                         





C-2









 








EXHIBIT D




FORM OF CERTIFICATE FROM




ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Rural Cellular Corporation

3905 Dakota Street, SW

Alexandria, Minnesota 56308




Wells Fargo Bank, National Association

Corporate Trust Services

Sixth and Marquette, N9303-120

Minneapolis, MN 55479




     Re: Floating Rate Senor Subordinated Notes due 2013



(CUSIP                     )




     Reference is hereby made to the Indenture, dated as of May 30, 2007 (the “Indenture”), between
Rural Cellular Corporation as issuer (the “Company”), and Wells Fargo Bank, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.



     In connection with our proposed purchase of $                     aggregate principal amount of:



     (a) o a beneficial interest in a Global Note, or



     (b) o a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



     2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance with the Securities
Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a
transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.



     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other



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information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	[Insert Name of Accredited Investor]
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Dated:                                         





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