exv4w1



 


EXHIBIT 4.1






IMPSAT FIBER NETWORKS, INC.,

as Issuer



IMPSAT S.A.,

as Guarantor



and



THE BANK OF NEW YORK,

as Trustee, Registrar, Paying Agent and Conversion Agent







Senior Guaranteed Convertible Notes Indenture



Dated as of March 25, 2003







Series A 6% Senior Guaranteed Convertible Notes due 2011








 






 





CROSS-REFERENCE TABLE




	 	 	 	 	 	 
	TIA Sections	 	Indenture Sections
	
	 	

	§ 310
	(a)(1)
	 	 	7.10	 
	 	(a)(2)
	 	 	7.10	 
	 	(b)
	 	 	7.08	 
	§ 313
	(c)
	 	 	7.06; 12.02	 
	§ 314
	(a)
	 	 	4.19; 12.02	 
	 	(a)(4)
	 	 	4.18; 12.02	 
	 	(c)(1)
	 	 	12.03	 
	 	(c)(2)
	 	 	12.03	 
	 	(e)
	 	 	12.04	 
	§ 315
	(b)
	 	 	7.05; 12.02	 
	§ 316
	(a)(1)(A)
	 	 	6.05	 
	 	(a)(1)(B)
	 	 	6.04	 
	 	(b)
	 	 	6.07	 
	§ 317
	(a)(1)
	 	 	6.08	 
	 	(a)(2)
	 	 	6.09	 
	§ 318
	(a)
	 	 	12.01	 
	 	(c)
	 	 	12.01	 



Note: The Cross-Reference Table shall not for any purpose be deemed to be a part of the Indenture.


 






 



TABLE OF CONTENTS



	 	 	 	 	 	 
	 	 	 	Page
	 	 	 	

	RECITALS OF THE COMPANY	 	  1	 
	ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE	 	  1	 
	    SECTION 1.01.	 	
Definitions
	 	  1	 
	    SECTION 1.02.	 	
Incorporation by Reference of Trust Indenture Act
	 	20	 
	    SECTION 1.03.	 	
Rules of Construction
	 	21	 
	ARTICLE TWO THE SECURITIES	 	21	 
	    SECTION 2.01.	 	
Form and Dating
	 	21	 
	    SECTION 2.02.	 	
Restrictive Legends
	 	22	 
	    SECTION 2.03.	 	
Execution, Authentication and Denominations
	 	23	 
	    SECTION 2.04.	 	
Registrar, Paying and Conversion Agent
	 	24	 
	    SECTION 2.05.	 	
Paying Agent to Hold Money in Trust
	 	24	 
	    SECTION 2.06.	 	
Transfer and Exchange
	 	25	 
	    SECTION 2.07.	 	
Book-Entry Provisions for Global Securities
	 	26	 
	    SECTION 2.08.	 	
Special Transfer Provisions Applicable to Restricted Securities
	 	27	 
	    SECTION 2.09.	 	
Replacement Securities
	 	28	 
	    SECTION 2.10.	 	
Outstanding Securities
	 	29	 
	    SECTION 2.11.	 	
Temporary Securities
	 	29	 
	    SECTION 2.12.	 	
Cancellation
	 	29	 
	    SECTION 2.13.	 	
CUSIP, CINS and ISIN Numbers
	 	30	 
	    SECTION 2.14.	 	
Defaulted Interest
	 	30	 
	    SECTION 2.15.	 	
Issuance of Additional Securities
	 	30	 
	ARTICLE THREE CONVERSION	 	30	 
	    SECTION 3.01.	 	
Conversion Privilege
	 	30	 
	    SECTION 3.02.	 	
Conversion Procedure
	 	31	 
	    SECTION 3.03.	 	
Fractional Shares
	 	32	 
	    SECTION 3.04.	 	
Taxes on Conversion
	 	33	 
	    SECTION 3.05.	 	
Company to Provide Stock
	 	33	 
	    SECTION 3.06.	 	
Adjustment of Conversion Price
	 	33	 
	    SECTION 3.07.	 	
No Adjustment
	 	37	 
	    SECTION 3.08.	 	
Adjustment for Tax Purposes
	 	38	 
	    SECTION 3.09.	 	
Notice of Adjustment
	 	38	 
	    SECTION 3.10.	 	
Notice of Certain Transactions
	 	38	 
	    SECTION 3.11.	 	
Effect of Reclassification, Consolidation, Merger or Sale,
Transfer or Conveyance on Conversion Privilege
	 	38	 
	    SECTION 3.12.	 	
Trustee’s Disclaimer
	 	39	 
	ARTICLE FOUR COVENANTS	 	40	 
	    SECTION 4.01.	 	
Payment of Securities
	 	40	 






i






 





	 	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 	 	

	    SECTION 4.02.	 	
Maintenance of Offices or Agencies
	 	 	40	 
	    SECTION 4.03.	 	
Limitation on Indebtedness
	 	 	41	 
	    SECTION 4.04.	 	
Limitation on Restricted Payments
	 	 	43	 
	    SECTION 4.05.	 	
Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries
	 	 	45	 
	    SECTION 4.06.	 	
Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries
	 	 	46	 
	    SECTION 4.07.	 	
Limitation on Issuances of Guarantees by Restricted Subsidiaries
	 	 	47	 
	    SECTION 4.08.	 	
Limitation on Transactions with Stockholders and Affiliates
	 	 	48	 
	    SECTION 4.09.	 	
Limitation on Liens
	 	 	48	 
	    SECTION 4.10.	 	
Limitation on Sale-Leaseback Transactions
	 	 	49	 
	    SECTION 4.11.	 	
Limitation on Asset Sales
	 	 	49	 
	    SECTION 4.12.	 	
Repurchase of Securities upon a Change of Control
	 	 	50	 
	    SECTION 4.13.	 	
Existence
	 	 	50	 
	    SECTION 4.14.	 	
Payment of Taxes and Other Claims
	 	 	50	 
	    SECTION 4.15.	 	
Maintenance of Properties and Insurance
	 	 	51	 
	    SECTION 4.16.	 	
Notice of Default
	 	 	51	 
	    SECTION 4.17.	 	
Compliance Certificates
	 	 	51	 
	    SECTION 4.18.	 	
Commission Reports and Reports to Holders
	 	 	52	 
	    SECTION 4.19.	 	
Waiver of Stay, Extension or Usury Laws
	 	 	52	 
	    SECTION 4.20.	 	
Additional Amounts
	 	 	53	 
	    SECTION 4.21.	 	
Books and Records
	 	 	54	 
	ARTICLE FIVE SUCCESSOR CORPORATION; CLAIMED AMOUNTS	 	 	54	 
	    SECTION 5.01.	 	
When Company and the Guarantor May Merge, Etc.
	 	 	54	 
	    SECTION 5.02.	 	
Successor Substituted
	 	 	55	 
	    SECTION 5.03.	 	
Definition of Claimed Amount
	 	 	55	 
	ARTICLE SIX DEFAULT AND REMEDIES	 	 	55	 
	    SECTION 6.01.	 	
Events of Default
	 	 	55	 
	    SECTION 6.02.	 	
Acceleration
	 	 	57	 
	    SECTION 6.03.	 	
Other Remedies
	 	 	58	 
	    SECTION 6.04.	 	
Waiver of Past Defaults
	 	 	58	 
	    SECTION 6.05.	 	
Control by Majority
	 	 	58	 
	    SECTION 6.06.	 	
Limitation on Suits
	 	 	59	 
	    SECTION 6.07.	 	
Rights of Holders to Receive Payment
	 	 	59	 
	    SECTION 6.08.	 	
Collection Suit by Trustee
	 	 	59	 
	    SECTION 6.09.	 	
Trustee May File Proofs of Claim
	 	 	60	 
	    SECTION 6.10.	 	
Priorities
	 	 	60	 
	    SECTION 6.11.	 	
Undertaking for Costs
	 	 	61	 
	    SECTION 6.12.	 	
Restoration of Rights and Remedies
	 	 	61	 
	    SECTION 6.13.	 	
Rights and Remedies Cumulative
	 	 	61	 
	    SECTION 6.14.	 	
Delay or Omission Not Waiver
	 	 	61	 
	ARTICLE SEVEN TRUSTEE AND AGENTS	 	 	61	 
	    SECTION 7.01.	 	
General
	 	 	61	 



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	 	 	 	 	Page
	 	 	 	 	

	    SECTION 7.02.	 	
Certain Rights
	 	 	61	 
	    SECTION 7.03.	 	
Individual Rights of Trustee
	 	 	63	 
	    SECTION 7.04.	 	
Trustee’s Disclaimer
	 	 	63	 
	    SECTION 7.05.	 	
Notice of Default
	 	 	63	 
	    SECTION 7.06.	 	
Reports by Trustee to Holders
	 	 	63	 
	    SECTION 7.07.	 	
Compensation and Indemnity
	 	 	63	 
	    SECTION 7.08.	 	
Replacement of Trustee
	 	 	64	 
	    SECTION 7.09.	 	
Successor Trustee by Merger, Etc.
	 	 	65	 
	    SECTION 7.10.	 	
Eligibility
	 	 	65	 
	    SECTION 7.11.	 	
Money Held in Trust
	 	 	65	 
	    SECTION 7.12.	 	
Withholding Taxes
	 	 	65	 
	    SECTION 7.13.	 	
Beneficial Ownership Certificate
	 	 	65	 
	ARTICLE EIGHT DISCHARGE OF INDENTURE	 	 	66	 
	    SECTION 8.01.	 	
Termination of Company’s Obligations
	 	 	66	 
	    SECTION 8.02.	 	
Defeasance and Discharge of Indenture
	 	 	66	 
	    SECTION 8.03.	 	
Defeasance of Certain Obligations
	 	 	69	 
	    SECTION 8.04.	 	
Application of Trust Money
	 	 	71	 
	    SECTION 8.05.	 	
Repayment to Company
	 	 	71	 
	    SECTION 8.06.	 	
Reinstatement
	 	 	71	 
	    SECTION 8.07.	 	
Insiders
	 	 	72	 
	ARTICLE NINE REDEMPTION	 	 	72	 
	    SECTION 9.01.	 	
Right of Redemption
	 	 	72	 
	    SECTION 9.02.	 	
Notices to Trustee
	 	 	72	 
	    SECTION 9.03.	 	
Selection of Securities to Be Redeemed
	 	 	72	 
	    SECTION 9.04.	 	
Notice of Redemption
	 	 	72	 
	    SECTION 9.05.	 	
Effect of Notice of Redemption
	 	 	73	 
	    SECTION 9.06.	 	
Deposit of Redemption Price
	 	 	74	 
	    SECTION 9.07.	 	
Payment of Securities Called for Redemption
	 	 	74	 
	    SECTION 9.08.	 	
Securities Redeemed in Part
	 	 	74	 
	    SECTION 9.09.	 	
Offer to Purchase
	 	 	74	 
	ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	74	 
	    SECTION 10.01.	 	
Without Consent of Holders
	 	 	74	 
	    SECTION 10.02.	 	
With Consent of Holders
	 	 	75	 
	    SECTION 10.03.	 	
Revocation and Effect of Consent
	 	 	76	 
	    SECTION 10.04.	 	
Notation on or Exchange of Securities
	 	 	76	 
	    SECTION 10.05.	 	
Trustee to Sign Amendments, Etc.
	 	 	77	 
	    SECTION 10.06.	 	
Conformity with Trust Indenture Act
	 	 	77	 
	ARTICLE ELEVEN GUARANTEE OF SECURITIES	 	 	77	 
	    SECTION 11.01.	 	
Security Guarantee
	 	 	77	 
	    SECTION 11.02.	 	
Obligations Unconditional
	 	 	79	 
	    SECTION 11.03.	 	
Payments by the Guarantor
	 	 	79	 
	    SECTION 11.04.	 	
Notice to Trustee
	 	 	80	 



iii



 






 




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 	 	

	    SECTION 11.05.	 	
This Article Not to Prevent Events of Default
	 	 	80	 
	    SECTION 11.06.	 	
Net Worth Limitation
	 	 	80	 
	    SECTION 11.07.	 	
Representation and Warranty of the Guarantor
	 	 	80	 
	    SECTION 11.08.	 	
Expenses
	 	 	80	 
	    SECTION 11.09.	 	
Special Waiver
	 	 	80	 
	ARTICLE TWELVE MISCELLANEOUS	 	 	81	 
	    SECTION 12.01.	 	
Trust Indenture Act of 1939.
	 	 	81	 
	    SECTION 12.02.	 	
Notices
	 	 	81	 
	    SECTION 12.03.	 	
Certificate and Opinion as to Conditions Precedent
	 	 	82	 
	    SECTION 12.04.	 	
Statements Required in Certificate or Opinion
	 	 	82	 
	    SECTION 12.05.	 	
Rules by Trustee, Paying Agent or Registrar
	 	 	83	 
	    SECTION 12.06.	 	
Payment Date Other Than a Business Day
	 	 	83	 
	    SECTION 12.07.	 	
Governing Law; Consent to Jurisdiction
	 	 	83	 
	    SECTION 12.08.	 	
No Adverse Interpretation of Other Agreements
	 	 	83	 
	    SECTION 12.09.	 	
No Recourse Against Others
	 	 	84	 
	    SECTION 12.10.	 	

Successors
	 	 	84	 
	    SECTION 12.11.	 	
Duplicate Originals
	 	 	84	 
	    SECTION 12.12.	 	
Currency Indemnity
	 	 	84	 
	    SECTION 12.13.	 	
Currency Translations
	 	 	85	 
	    SECTION 12.14.	 	
Table of Contents, Headings, Etc.
	 	 	85	 
	EXHIBIT A	 	
Form of Security
	 	 	A-1	 
	EXHIBIT B	 	
Form of Certificate of Beneficial Ownership
	 	 	B-1	 



iv




 









 



SENIOR GUARANTEED CONVERTIBLE NOTES INDENTURE



     INDENTURE, dated as of March 25, 2003, among IMPSAT FIBER NETWORKS, INC.,
a Delaware corporation, as issuer (the “Company”), IMPSAT S.A., an Argentine
corporation, as guarantor (the “Guarantor”), and THE BANK OF NEW YORK, as
trustee, registrar, paying agent and conversion agent (the
“Trustee”).



RECITALS OF THE COMPANY



     The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of up to $67,531,000 aggregate principal
amount of the Company’s Series A 6% Senior Guaranteed Convertible Notes due
2011 (the “Securities”) issuable as provided herein. All things necessary to
make this Indenture a valid agreement of the Company and the Guarantor, in
accordance with its terms, have been done, and the Company and the Guarantor
have done all things necessary to make the Securities, when executed by the
Company and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company and the Guarantor
as hereinafter provided.


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


AND THIS INDENTURE FURTHER WITNESSETH



     The Company, the Guarantor and the Trustee agree as follows for the equal
and proportionate benefit of all Holders, as follows:



ARTICLE ONE

DEFINITIONS AND INCORPORATION BY REFERENCE




SECTION
1.01.      Definitions.


     “Acquired
Indebtedness” means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by a Restricted Subsidiary and not Incurred in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition.


     “Adjusted
Consolidated Net Income” means, for any period, the aggregate
net income (or loss) of the Company and its Restricted Subsidiaries for such
period determined in conformity with GAAP; provided that the following items
shall be excluded in computing Adjusted Consolidated Net Income (without
duplication): (i) the net income (or loss) of any Person that is not a
Restricted Subsidiary, except (x) with respect to the Company’s or any
Restricted Subsidiary’s equity in such net income, to the extent of the amount
of dividends or other distributions actually paid to the Company or any of its
Restricted Subsidiaries by such Person during such period and (y) with respect
to net losses, to the extent of the amount of Investments
made by the Company or any Restricted Subsidiary in such Person during
such period; (ii) solely for the purposes of calculating the amount of
Restricted Payments that may be made pursuant to


 






 





clause (C) of the first
paragraph of Section 4.04 (and in such case, except to the extent includable
pursuant to clause (i) above), the net income (or loss) of any Person accrued
prior to the date it becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are acquired by the
Company or any of its Restricted Subsidiaries; (iii) the net income of any
Restricted Subsidiary (other than the Guarantor) (A) to the extent that the
declaration or payment of dividends or similar distributions by such Restricted
Subsidiary of such net income is not at the time permitted by the operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted
Subsidiary; and (B) equal to the portion, if any, thereof that would be
required to be withheld for taxes with respect to the payment of dividends or
distributions on the Capital Stock of such Restricted Subsidiary during the
relevant period if such net income were to be declared and distributed to the
shareholders of such Restricted Subsidiary; (iv) any gains or losses (on an
after-tax basis) attributable to Asset Sales or other dispositions not effected
in the ordinary course of business; (v) any extraordinary gains and losses (on
an after-tax basis); and (vi) any gains and losses from a cumulative change in
accounting policy.


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


     “Affiliated
Holders” means any Holder that is an Affiliate of the Company
as of the Closing Date.


     “Agent” means any Registrar, Paying Agent, Conversion Agent,
authenticating agent or co-Registrar.


     “Agent
Members” has the meaning provided in Section 2.07(a).


     “Asset
Acquisition” means (i) an investment by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries; provided that such Person’s
primary business is related, ancillary or complementary to the businesses of
the Company and its Restricted Subsidiaries on the Closing Date or (ii) an
acquisition by the Company or any of its Restricted Subsidiaries of the
property and assets of any Person other than the Company or any of its
Restricted Subsidiaries that constitute substantially all of a division or line
of business of such Person; provided that the property and assets acquired are
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the Closing Date.


     “Asset
Disposition” means the sale or other disposition by the Company or
any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of (i) all or


2






 




 substantially all of the Capital Stock of
any Restricted Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any of its
Restricted Subsidiaries.


     “Asset
Sale” means any sale, transfer or other disposition (including by
way of merger, consolidation or sale-leaseback transaction) in one transaction
or a series of related transactions by the Company or any of its Restricted
Subsidiaries to any Person other than the Company or any of its Restricted
Subsidiaries of (i) any shares of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries outside the ordinary course of business of the Company or such
Restricted Subsidiary and, in each case, that is not governed by the provisions
of Article Five; provided that “Asset Sale” shall not include (a) sales or
other dispositions of equipment that has become obsolete or no longer useful in
the business of the Company or its Restricted Subsidiaries or inventory,
receivables and other current assets, (b) sales, transfers or other
dispositions of assets constituting a Restricted Payment permitted to be made
under Section 4.04, (c) sales, transfers or other dispositions of assets with a
fair market value (as certified in an Officers’ Certificate) not in excess of
$1.0 million in any transaction or series of related transactions, (d) sales or
other dispositions of assets for consideration at least equal to the fair
market value of the assets sold or disposed of, if the consideration received
consists solely of property or assets that would constitute property or assets
of the kind described in clause (B) of Section 4.11, (e) any long-term
assignment of capacity on the Company’s telecommunications network in an amount
between $1.0 million and $5.0 million pursuant to any transaction or series of
related transactions that has been approved by an affirmative vote of the Board
of Directors of the Company, (f) any long-term assignment of capacity on the
Company’s telecommunications network in an amount in excess of $5.0 million
pursuant to any transaction or series of related transactions that has been
approved by an affirmative vote of at least two-thirds of the Board of
Directors of the Company, or (g) issuances and sales of Common Stock of
Restricted Subsidiaries in accordance with clauses (i) or (ii) of Section 4.06.


     “Attributable
Debt” in respect of a sale and leaseback transaction means,
at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.


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


     “Board
of Directors” means, with respect to any Person, the Board of
Directors of such Person or any committee of such Board of Directors duly
authorized to act with respect to this Indenture.


3






 


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


     “Business
Day” means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.


     “Capital
Stock” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all Common
Stock and Preferred Stock.


     “Capitalized
Lease” means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present
value of the rental obligations of such Person as lessee, in conformity with
GAAP, is required to be capitalized on the balance sheet of such Person.


     “Capitalized
Lease Obligations” means the discounted present value of the
rental obligations under a Capitalized Lease.


     “Change
of Control” means such time as (i) a “person” or “group” (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than any
Permitted Investor or any Existing Securityholder or its Affiliates, becomes
the ultimate “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act) of Voting Stock representing more than 30% of the total voting power of
the Voting Stock of the Company on a fully-diluted basis and such ownership
represents a greater percentage of the total voting power of the Voting Stock
of the Company, on a fully-diluted basis, than is held in the aggregate by the
Existing Securityholders and their Affiliates on such date; or (ii) individuals
who on the Closing Date constitute the Company’s Board of Directors (together
with any new directors whose election by the Board of Directors or whose
nomination for election by the Company’s stockholders was approved by a vote of
at least two-thirds of the members of the Board of Directors then in office who
either were members of the Board of Directors on the Closing Date or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the Board of Directors then
in office; or (iii) the Company shall cease to be the beneficial owner of a
majority of the Voting Stock of the Guarantor or IMPSAT Comunicações Ltda; or
(iv) the occurrence of any transaction or event in connection with which all or
substantially all the Company’s Common Stock shall be exchanged for, converted
into, acquired for or constitute solely the right to receive (whether by means
of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) consideration
which (a) is not all or substantially all common stock listed (or, upon
consummation of or
immediately following such transaction or event, will be listed) on a
United States national securities exchange or approved for quotation on the
Nasdaq National Market or any similar United States system of automated
dissemination of quotations of securities prices and (b) does


4






 




not have
registration rights applicable thereto on terms no less favorable to the Holder
than those contained in the Registration Rights Agreement.


     “Change
of Control Redemption Price” has the meaning provided in Section
4.12.


     “Claimed
Amount” has the meaning provided in Section 5.03.


     “Closing
Date” means the date on which the Securities are originally
issued under this Indenture.


     “Closing
Price” with respect to any securities on any date shall mean the
closing sale price, regular way, on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, in each case on the New York Stock Exchange, or, if such security
is not listed or admitted to trading on such Exchange, on the principal
security exchange or quotation system in the United States on which such
security is quoted or listed or admitted to trading, or, the average of the
closing bid and asked prices of such security on the over-the-counter market on
the day in question as reported by the Nasdaq National Market or a similar
generally accepted reporting service, or if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose, or a price determined in good faith
by the Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive.


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


     “Common
Stock” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person’s common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.


     “Company” means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.


     “Company
Order” means a written request or order signed in the name of the
Company (i) by its Chairman, a Vice Chairman, its President or a Vice President
and (ii) by its Chief Financial Officer, Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the Trustee; provided that
such written request or order may be signed by any two of the officers or
directors listed in clause (i) above in lieu of being signed by one of such
officers or directors listed in such clause (i) and one of the officers listed
in clause (ii) above.


     “Consolidated
EBITDA” means, for any period, Adjusted Consolidated Net
Income for such period plus (without duplication), to the extent such amount
was deducted in calculating such Adjusted Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) income taxes


5






 




(other than income taxes
(either positive or negative) attributable to extraordinary and non-recurring
gains or losses or sales of assets) and any minimum net asset taxes payable by
any Restricted Subsidiary in a foreign jurisdiction as a result of generating
income before taxes, (iii) depreciation expense, (iv) amortization expense
(excluding amortization expense attributable to a prepaid cash item that was
paid in a prior period), and (v) all other non-cash items reducing Adjusted
Consolidated Net Income (other than items that will require cash payments and
for which an accrual or reserve is, or is required by GAAP to be, made and
other than amortization expense attributable to a prepaid cash item that was
paid in a prior period), less all non-cash items increasing Adjusted
Consolidated Net Income, and all as determined on a consolidated basis for the
Company and its Restricted Subsidiaries in conformity with GAAP; provided that,
if any Restricted Subsidiary (other than the Guarantor) is not a Wholly-Owned
Restricted Subsidiary, Consolidated EBITDA shall be reduced (to the extent not
otherwise reduced in accordance with GAAP) by an amount equal to (A) the amount
of the Adjusted Consolidated Net Income attributable to such Restricted
Subsidiary multiplied by (B) the percentage ownership interest in the income of
such Restricted Subsidiary not owned on the last day of such period by the
Company or any of its Restricted Subsidiaries.


     “Consolidated
Fixed Charges” means, with respect to the Company and its
Restricted Subsidiaries for any period, the sum, without duplication, of (1)
Consolidated Interest Expense, plus (2) the product of (x) the amount of all
dividend payments on any series of Preferred Stock of the Company and its
Restricted Subsidiaries (other than dividends paid in Capital Stock of the
Company (excluding Disqualified Stock) and other than dividends paid to the
Company or to a Wholly-Owned Restricted Subsidiary of the Company) paid,
accrued or scheduled to be paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local tax rate
of such Person, expressed as a decimal.


     “Consolidated
Interest Expense” means, with respect to any period, the
aggregate of the interest expense of the Company and its Restricted
Subsidiaries for such period determined in accordance with GAAP, plus (to the
extent not included in such aggregate interest expense, and to the extent
incurred by the Company or its Restricted Subsidiaries), without duplication,
(a) amortization of debt discount and amortization of write-off of deferred
financing costs; (b) the interest portion of any deferred payment obligation,
calculated in accordance with the effective interest method of accounting; (c)
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers’ acceptance financing; (d) the net costs
associated with Interest Rate Agreements; (e) interest paid or accrued (by any
Person) on Indebtedness that is Guaranteed or secured by such Person or any of
its Restricted Subsidiaries); and (f) all but the principal component of
rentals in respect of Capitalized Lease Obligations paid, accrued or scheduled
to be paid or to be accrued by the Company and its Restricted Subsidiaries
during such period all as determined on a consolidated basis for the Company
and its Restricted Subsidiaries in conformity with GAAP; excluding, however,
any amount of such interest of any Restricted Subsidiary if the net income of
such Restricted Subsidiary is excluded in the calculation of Adjusted
Consolidated Net Income pursuant to clause (iii) of the definition
thereof (but only in the same proportion as the net income of such
Restricted Subsidiary is excluded from the calculation of Adjusted Consolidated
Net Income pursuant to clause (iii) of the definition thereof).


6






 


     “Consolidated
Net Worth” means, at any date of determination,
stockholders’ equity as set forth on the quarterly or annual consolidated
balance sheet of the Company most recently filed with the Commission or
provided to the Trustee pursuant to Section 4.18, less the amount of
stockholders’ equity attributable to Unrestricted Subsidiaries and treating as
a liability all Disqualified Stock or any equity security convertible into or
exchangeable for Indebtedness, each item to be determined in conformity with
GAAP (excluding the effects of foreign currency exchange adjustments under
Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 52).


     “Conversion
Agent” has the meaning provided in Section 2.04. The Company
or any of its Subsidiaries or Affiliates may act as Conversion Agent. The term
“Conversion Agent” includes any additional Conversion Agent.


     “Conversion
Date” has the meaning provided in Section 3.02.


     “Conversion
Price” has the meaning provided in Section 3.01.


     “Conversion
Shares” has the meaning provided for in Section 3.06(d).


     “Corporate
Trust Office” means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date hereof, located at 101
Barclay Street, Floor 21 West, New York, New York 10286.


     “Currency
Agreement” means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.


     “Current
Market Price” shall mean the average of the daily Closing Prices
per share of the Company’s Common Stock for the ten consecutive Business Days
immediately prior to the date in question.


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


     “Depositary” means The Depository Trust Company, its nominees, and their
respective successors.


     “Disqualified
Stock” means any class or series of Capital Stock of any
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event or otherwise is (i) required to be redeemed
prior to Final Maturity, (ii) redeemable at the option of the holder of such
class or series of Capital Stock at any time prior to Final Maturity or (iii)
convertible into or exchangeable for Capital Stock referred to in clause (i) or
(ii) above or Indebtedness having a scheduled maturity prior to Final Maturity;
provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an “asset sale” or “change of control” occurring
prior to Final Maturity shall not constitute Disqualified Stock if the “asset
sale” or “change of control” provisions applicable to such Capital Stock are no
more


7






 




 favorable to the holders of such Capital Stock than the provisions in
favor of Holders that are contained in Section 4.11 and Section 4.12 and such
Capital Stock, or the agreements or instruments governing the redemption rights
thereof, specifically provides that such provisions will become operative only
after the Company’s repurchase of such Securities as are required to be
repurchased pursuant to Section 4.11 and Section 4.12.


     “Distributed
Securities” has the meaning provided in Section 3.06(d).


     “Distribution
Date” has the meaning provided for in Section 3.06(d).


     “Event
of Default” has the meaning provided in Section 6.01.


     “Excess
Proceeds” has the meaning provided in Section 4.11.


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


     “Existing
Securityholders” means each holder of Common Stock, or of
securities of the Company convertible into or exchangeable for, Common Stock,
in each case, representing five percent (5%) or more of the Company’s total
Common Stock on a fully-diluted basis as of the Effective Date.


     “Expiration
Time” has the meaning provided in Section 3.06 (e).


     “fair
market value” means the price that would be paid in an arm’s-length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy, as determined in
good faith by the Board of Directors, whose determination shall be conclusive
if evidenced by a Board Resolution.


     “Final
Maturity” means the final maturity of the Securities, which is
March 15, 2011.


     “Fixed
Charge Coverage Ratio” means, with respect to the Company and its
Restricted Subsidiaries, on any Transaction Date, the ratio of Consolidated
EBITDA to Consolidated Fixed Charges for the then most recent four fiscal
quarters for which financial statements of the Company have been filed with the
Commission or provided to the Trustee pursuant to Section 4.18 (such four
fiscal quarter period being the “Four Quarter Period”); provided that, in
making the foregoing calculation, (A) pro forma effect shall be given to Asset
Sales and other dispositions not effected in the ordinary course of business
and Asset Acquisitions (including giving pro forma effect to the application of
proceeds of any Asset Sales and other dispositions not effected in the ordinary
course of business) that occur from the beginning of the Four Quarter Period
through the Transaction Date (the “Reference Period”), as if they had occurred
and such proceeds had been applied on the first day of such Reference Period;
(B) pro forma effect shall be given to asset dispositions and asset
acquisitions (including giving pro forma effect to the application of proceeds
of any asset disposition) that have been made by any Person that has
become a Restricted Subsidiary or has been merged with or into the Company
or any Restricted Subsidiary during such Reference Period that would have
required adjustment under clause (A) had such transactions occurred when such
Person was a Restricted Subsidiary as if such asset dispositions or asset
acquisitions had occurred on the first day of such Reference Period; and


8






 




(C)
pro forma effect shall be given to any Incurrence, assumption, guarantee,
repayment, repurchase or redemption of any Indebtedness (other than the
Incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities) or issuance,
repurchase or redemption of Preferred Stock by the Company or any of its
Restricted Subsidiaries during the Reference Period, as if the same had
occurred on the first day of such Reference Period. Furthermore, in
calculating “Consolidated Fixed Charges” for purposes of determining the
denominator (but not the numerator) of this “Fixed Charge Coverage Ratio,” (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of
the Transaction Date and which will continue to be so determined thereafter
shall be deemed to have accrued at a fixed rate per annum equal to the average
rate of interest on such Indebtedness in effect on the 30 business days
preceding the Transaction Date; (2) if interest on any Indebtedness actually
incurred on the Transaction Date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Four Quarter
Period; and (3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
any Interest Rate Agreement, shall be deemed to accrue at the rate per annum
resulting after giving effect to the operation of such agreement.


     “GAAP” means generally accepted accounting principles in the United States
of America as in effect as of the Closing Date, including, without limitation,
those 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 approved by a significant segment of the
accounting profession and the rules and regulations of the Commission governing
the inclusion of financial statements (including pro forma financial
statements) in periodic reports to be filed with the Commission, including the
opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the Commission. All ratios and
computations contained or referred to herein shall be computed in conformity
with GAAP applied on a consistent basis.


     “Global
Security” has the meaning provided in Section 2.01.


     “Guarantee” means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation of such other Person (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) or (ii) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof
(in whole or in part); provided that the term “Guarantee” shall not
include endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” used as a verb has a corresponding meaning.


9






 


     “Guaranteed
Indebtedness” has the meaning provided in Section 4.07.


     “Guarantor” means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.


     “Holder”
or “Securityholder” means the then registered holder of any
Security.


     “HSR
Act” has the meaning provided in Section 3.02.


     “Incur” means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness,
including, with respect to the Company and its Restricted Subsidiaries, an
“Incurrence” of Acquired Indebtedness; provided that neither the accrual of
interest nor the accretion of original issue discount shall be considered an
Incurrence of Indebtedness.


     “Indebtedness” means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) or (ii) above or (v), (vi)
or (vii) below) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day
following such drawing), (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services, all obligations of
such Person under any title retention agreement and all conditional sale
obligations of such Person, except Trade Payables, (v) all Capitalized Lease
Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person, (vi) all Indebtedness
of other Persons secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (vii) the
amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock, (viii) all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person and (ix) to the extent not otherwise
included in this definition, obligations under Currency Agreements and Interest
Rate Agreements. The amount of Indebtedness of any Person at any date shall be
(without duplication) the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, provided (A) that the amount outstanding at any time of any
Indebtedness issued with
original issue discount is the original issue price of such Indebtedness
and (B) that Indebtedness shall not include any liability for federal, state,
local or other taxes.


10






 


     “Indenture” means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.


     “Interest
Payment Date” means each semiannual interest payment date on
March 15 and September 15 of each year, commencing September 15, 2005.


     “Interest
Rate Agreement” means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar
agreement or arrangement.


     “Investment” in any Person means any direct or indirect advance, loan or
other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers (other than
Unrestricted Subsidiaries of the Company) in the ordinary course of business
and accounts payable to suppliers in the ordinary course of business that are,
in conformity with GAAP, recorded as accounts receivable or accounts payable,
as the case may be, on the balance sheet of the Company or its Restricted
Subsidiaries and Trade Payables) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, bonds, notes, debentures or other similar instruments issued by,
such Person and shall include (i) the designation of a Restricted Subsidiary as
an Unrestricted Subsidiary and (ii) the fair market value of the Capital Stock
(or any other Investment), held by the Company or any of its Restricted
Subsidiaries, of (or in) any Person that has ceased to be a Restricted
Subsidiary, including without limitation, by reason of any transaction
permitted by clause (iii) of Section 4.06. For purposes of the definition of
“Unrestricted Subsidiary” and Section 4.04, (i) “Investment” shall include the
fair market value of the assets (net of liabilities, other than liabilities to
the Company or any of its Restricted Subsidiaries) of any Restricted Subsidiary
at the time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary, (ii) the fair market value of the assets (net of liabilities, other
than liabilities to the Company or any of its Restricted Subsidiaries) of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Restricted Subsidiary shall be considered a reduction in the
outstanding Investment in such Unrestricted Subsidiary and (iii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer.


     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof, any sale with
recourse against the seller or any Affiliate of the seller, or any agreement to
give any security interest).


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


     “Net
Cash Proceeds” means (a) with respect to any Asset Sale of an asset
or property not constituting Capital Stock, the proceeds of such Asset Sale in
the form of cash or cash equivalents, including payments in respect of deferred
payment obligations (to the extent


11






 



corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold with
recourse to the Company or any Restricted Subsidiary) and proceeds from the
conversion of other property received when converted to cash or cash
equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) actually
incurred related to such Asset Sale, (ii) provisions for all taxes paid or are
payable as a result of such Asset Sale, (iii) payments made to repay
Indebtedness outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold in such Asset Sale or (B) is
required to be paid as a result of such Asset Sale and (iv) appropriate amounts
to be provided by the Company or any Restricted Subsidiary as a reserve against
any liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as determined in conformity with GAAP and
(b) with respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale, in the form of cash or cash equivalents, including payments
in respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or cash equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) and proceeds
from the conversion of other property received when converted to cash or cash
equivalents, net of items of the type referred to in clauses (a)(i) and (ii)
above.


     “Nortel
Financing Agreements” mean (i) the Amended and Restated Financing
Agreement, dated as of March 25, 2003, by and among the Guarantor, Nortel
Networks Limited, as administrative agent, Deutsche Bank Trust Company
Americas, as collateral agent (the “Collateral Agent”); and the several lenders
party thereto from time to time, as lenders and (ii) the Amended and Restated
Financing Agreement, dated as of March 25, 2003, by and among IMPSAT
Comunicações Ltda., Nortel Networks Limited, as administrative agent, Nortel
Networks Limited, as collateral agent, and the several lenders party thereto
from time to time, as lenders.


     “Offer
to Purchase” means an offer to purchase Securities by the Company
from the Holders commenced by the Company’s mailing of a notice to the Trustee
and each Holder stating: (i) the covenant pursuant to which the offer is being
made and that all such Securities validly tendered will be accepted for payment
or, in the case of Offers to Purchase pursuant to Section 4.11, accepted for
payment on a pro rata basis; (ii) the purchase price and the date of purchase
(which shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed) (the “Payment Date”); (iii) that any such
Security not tendered will continue to accrue interest pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the purchase price,
any Security accepted for payment pursuant to the Offer to Purchase shall cease
to accrue interest on and after the Payment Date; (v) that Holders electing to
have such Security purchased pursuant to the Offer to Purchase will be required
to surrender the Security, together with the form entitled “Option of the
Holder to Elect Purchase” on the reverse side of the Security completed, to the
Paying Agent at the address specified in the notice prior to
the close of business on the Business Day immediately preceding the
Payment Date; (vi) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram,


12






 




 facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Securities delivered for purchase and a statement that such Holder is
withdrawing his election to have such Securities purchased; (vii) that Holders
whose Securities are being purchased only in part will be issued new Securities
equal in principal amount to the unpurchased portion of the Securities
surrendered; provided that each Security purchased and each new Security issued
shall be in a principal amount of $1.00 or an integral multiple thereof and
(viii) in the case of an Offer to Purchase pursuant to Section 4.12, the
circumstances and relevant facts giving rise to the Change of Control. On the
Payment Date, the Company shall (i) accept for payment on a pro rata basis
Securities or portions thereof tendered pursuant to an Offer to Purchase; (ii)
deposit with the Paying Agent money sufficient to pay the purchase price of all
Securities or portions thereof so accepted; and (iii) deliver, or cause to be
delivered, to the Trustee all Securities or portions thereof so accepted
together with an Officers’ Certificate specifying the Securities or portions
thereof accepted for payment by the Company. The Paying Agent shall promptly
mail to the Holders of Securities so accepted payment in an amount equal to the
purchase price, and the Trustee shall promptly authenticate and mail to such
Holders a new Security equal in principal amount to any unpurchased portion of
the Security surrendered; provided that each Security purchased and each new
Security issued shall be in a principal amount of $1.00 or an integral multiple
thereof. The Company will publicly announce the results of an Offer to
Purchase as soon as practicable after the Payment Date. The Trustee shall act
as the Paying Agent for an Offer to Purchase. The Company will comply with
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable, in the event
that the Company is required to repurchase Securities pursuant to an Offer to
Purchase.


     “Officer” means with respect to any Person, (i) the Chairman of the Board,
the Vice Chairman of the Board, the President, any Vice President, the Chief
Financial Officer, and (ii) the Treasurer or any Assistant Treasurer, or the
Secretary or any Assistant Secretary.


     “Officers’ Certificate” means a certificate signed by one Officer listed
in clause (i) of the definition thereof and one Officer listed in clause (ii)
of the definition thereof; provided that any such certificate may be signed by
any two of the Officers listed in clause (i) of the definition thereof in lieu
of being signed by one Officer listed in clause (i) of the definition thereof
and one Officer listed in clause (ii) of the definition thereof. Each
Officers’ Certificate (other than certificates provided pursuant to TIA Section
314(a)(4)) shall include the statements provided for in TIA Section 314(e).


     “Opinion
of Counsel” means a written opinion signed by legal counsel who
may be an employee of or counsel to the Company or the Guarantor, as
applicable. Each such Opinion of Counsel shall include the statements provided
for in TIA Section 314(e).


     “Paying
Agent” has the meaning provided in Section 2.04, except that, for
the purposes of Article Eight, the Paying Agent shall not be the Company or a
Subsidiary of the Company or an Affiliate of any of them. The term “Paying
Agent” includes any additional Paying Agent.


     “Payment
Date” has the meaning provided in the definition of “Offer to
Purchase.”


13






 


     “Permitted
Investment” means (i) an Investment in the Company or a
Restricted Subsidiary or a Person that will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; provided that such Person’s primary business is
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the Closing Date; (ii) Temporary Cash Investments;
(iii) payroll, travel and similar advances made in the ordinary course of
business to cover matters that are expected at the time of such advances
ultimately to be treated as expenses in accordance with GAAP; (iv) loans or
advances to employees made in the ordinary course of business in accordance
with past practice of the Company or its Restricted Subsidiaries and that do
not in the aggregate exceed $1 million at any time outstanding; (v) stock,
obligations or securities received in satisfaction of judgments, work-outs or
similar arrangements; and (vi) participations in Indebtedness of any Restricted
Subsidiary permitted to be Incurred by clause (x) of the second paragraph of
Section 4.03(a).


     “Permitted
Investor” means (i) any Person that is in the
Telecommunications Business and (A) for its last four consecutive fiscal
quarters has generated revenues of at least $1 billion or earnings before
interest, income taxes, depreciation and amortization of at least $180 million,
or (B) on the date of determination has an equity market capitalization of at
least $3 billion, or (ii) any Subsidiary of any such Person.


     “Permitted
Liens” means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; (ii) statutory and common law Liens
of landlords and carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or other similar Liens arising in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made; (iii) Liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security; (iv)
Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory or regulatory obligations, bankers’ acceptances, surety and
appeal bonds, contracts (other than for Indebtedness), performance and
return-of-money bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment of
borrowed money) and any bank’s unexercised right of setoff with respect to
deposits made in the ordinary course of business of the Company or any
Restricted Subsidiary; (v) easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or other
irregularities that do not materially detract from the value of the property so
encumbered; (vi) Liens (including extensions and renewals thereof) to finance
the acquisition of real or personal property acquired after the Closing Date;
provided that (a) such Lien is created solely for the purpose of securing
Indebtedness Incurred, in accordance with Section 4.03, (1) to finance the cost
(including the cost (other than the internal costs of the Company or any of its
Subsidiaries) of design, development,
acquisition, construction, installation, improvement, transportation or
integration) of acquiring the item of property or assets subject thereto and
such Lien is created prior to, at the time of or


14






 




 within six months after the
later of the acquisition, the completion of construction or the commencement of
full operation of such property or (2) to refinance any Indebtedness previously
so secured, (b) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of such cost and (c) any such Lien shall not extend to or
cover any property or assets other than such item of property or assets and any
improvements on such item; (vii) leases or subleases granted to others in the
ordinary course of business that do not materially interfere with the ordinary
course of business of the Company and its Restricted Subsidiaries, taken as a
whole; (viii) Liens encumbering property or assets under construction arising
from progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such property or assets; (ix) any interest
or title of a lessor in the property subject to any Capitalized Lease or
operating lease; (x) Liens arising from filing by a lessor of Uniform
Commercial Code financing statements regarding the related lease; (xi) Liens on
property of, or on shares of Capital Stock or Indebtedness of, any Person
existing at the time such Person becomes, or becomes a part of, any Restricted
Subsidiary; provided that (A) such Liens do not extend to or cover any property
or assets of the Company or any Restricted Subsidiary other than the property
or assets acquired and (B) the Indebtedness secured by such Liens is permitted
to be Incurred under clause (viii) of the second paragraph of Section 4.03(a);
(xii) Liens in favor of the Company or any Restricted Subsidiary; (xiii) Liens
arising from the rendering of a final judgment or order against the Company or
any Restricted Subsidiary that does not give rise to an Event of Default; (xiv)
Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and
the products and proceeds thereof; (xv) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods in the ordinary course of business;
(xvi) Liens encumbering customary initial deposits and margin deposits, and
other Liens that are within the general parameters customary in the industry
and incurred in the ordinary course of business, in each case, securing
Indebtedness under Interest Rate Agreements, Currency Agreements and forward
contracts, options, future contracts, futures options or similar agreements or
arrangements designed solely to protect the Company or any of its Restricted
Subsidiaries from fluctuations in interest rates, currencies or the price of
commodities; (xvii) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business in accordance with the past practices of the Company and its
Restricted Subsidiaries prior to the Closing Date; (xviii) Liens securing
Indebtedness permitted to be Incurred pursuant to clause (vii) of the second
paragraph of Section 4.03(a); and (xix) Liens that secure Indebtedness with an
aggregate principal amount not in excess of $5 million at any time outstanding.


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


     “Physical
Securities” has the meaning provided in Section 2.01.


     “Plan” means the Plan of Reorganization of the Company filed on September
4, 2002 (as amended and supplemented) with the U.S. Bankruptcy Court for the
Southern District of New York (the “Bankruptcy Court”) in the Company’s
proceeding under Chapter 11 of the U.S.


15






 


Bankruptcy Code (Case No. 02-12882
(REG)), which Plan was confirmed by the Bankruptcy Court on December 11, 2002.


     “Preferred
Stock” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person’s preferred or preference stock, whether
now outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such preferred or preference stock.


     “principal” of a debt security, including the Securities, means the
principal amount due on the Stated Maturity as shown on such debt security.


     “Public
Equity Offering” means an underwritten primary public offering of
Common Stock of the Company pursuant to an effective registration statement
under the Securities Act.


     “Purchased
Shares” has the meaning set forth in Section 3.06(e).


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


     “Redemption
Price” means, when used with respect to any Security to be
redeemed, the price at which such Security is to be redeemed pursuant to this
Indenture.


     “Registered
Securities” means Securities that are registered for resale
pursuant to an effective a registration statement on an appropriate form under
the Securities Act (or any similar rule that may be adopted by the Commission).


     “Registrar” has the meaning provided in Section 2.04.


     “Registration
Rights Agreement” means the Registration Rights Agreement,
dated as of March 25, 2003, among the Company and the Affiliated Holders.


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


     “Regular
Record Date” for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.


     “Responsible
Officer”, when used with respect to the Trustee, means any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, and any trust officer or assistant trust officer employed
in the conduct of the Trustee’s corporate trust business, or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above 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
or her knowledge of and familiarity with the particular subject.


16






 


     “Restricted
Payments” has the meaning provided in Section 4.04.


     “Restricted
Security” a Security authenticated and issued hereunder to an
Affiliated Holder, including any Security issued in exchange therefor or in
lieu thereof; provided that the term “Restricted Security” shall not include
any Securities as to which restrictions have been terminated in accordance with
Section 2.08(c).


     “Restricted
Subsidiary” means (i) the Guarantor and (ii) each other
Subsidiary of the Company that is not an Unrestricted Subsidiary.


     “Restrictive
Legend” means the legend initially set forth on the
Restricted Securities in the form set forth in Section 2.02(a).


     “Rights” has the meaning provided for in Section 3.06(d).


     “Securities” means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term “Securities”
shall include any Registered Securities. For purposes of this Indenture, all
Securities and Registered Securities shall vote together as one series of
Securities under this Indenture.


     “Securities
Act” means the Securities Act of 1933.


     “Security
Guarantee” means the full and unconditional Guarantee of the
Securities by the Guarantor, as set forth in Article Eleven.


     “Security
Register” has the meaning provided in Section 2.04.


     “Series B
Notes” means the Company’s Series B 6% Senior Guaranteed Notes
due 2011.


     “Series B
Notes Indenture” means the indenture relating to the Series B
Notes, as originally executed or as it may be amended or supplemented from time
to time by one or more indentures supplemental to such indenture entered into
pursuant to the applicable provisions thereof.


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


     “Significant
Subsidiary” means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the consolidated
financial statements of the Company for the fiscal year most recently
filed pursuant to Section 4.18.


     “S&P” means Standard & Poor’s Ratings Services and its successors.


17






 


     “Stated
Maturity” means (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.


     “Subsidiary” means, with respect to any Person, any corporation,
association or other business entity of which Voting Stock representing more
than 50% of the total voting power of the outstanding Voting Stock is owned,
directly or indirectly, by such Person and one or more other Subsidiaries of
such Person.


     “Subsidiary
Guarantee” has the meaning provided in Section 4.07.


     “Telecommunications
Business” means telecommunications services, value
added telecommunications services, radio paging, mobile telecommunications,
personal telecommunications services, trunking, transport of broadcasting
signals, information technology, Internet services and related and ancillary
services.


     “Temporary
Cash Investment” means any of the following: (i) direct
obligations of the United States of America or any agency thereof or
obligations fully and unconditionally guaranteed by the United States of
America or any agency thereof, (ii) time deposit accounts, certificates of
deposit and money market deposits maturing within one year of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America, and which bank or trust
company has capital, surplus and undivided profits aggregating in excess of
$500 million (or the foreign currency equivalent thereof) and has outstanding
debt which is rated “A” (or such similar equivalent rating) or higher by at
least one nationally recognized statistical rating organization (as defined in
Rule 436 under the Securities Act) or any money market fund sponsored by a
registered broker dealer or mutual fund distributor, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with a bank meeting the
qualifications described in clause (ii) above, (iv) commercial paper, maturing
not more than one year after the date of acquisition, issued by a corporation
(other than an Affiliate of the Company) organized and in existence under the
laws of the United States of America, any state thereof or any foreign country
recognized by the United States of America with a rating at the time as of
which any investment therein is made of “P-1” (or higher) according to Moody’s
or “A-1” (or higher) according to S&P, (v) securities with maturities of six
months or less from the date of acquisition issued or fully and unconditionally
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least “AA” by S&P or “Aa” by Moody’s, and (vi) certificates of deposit
maturing not more than one year after the acquisition thereof by a Restricted
Subsidiary and
issued by any of the ten largest banks (based on assets as of the last
December 31) organized under the laws of the country in which the Restricted
Subsidiary that acquires such certificates of deposit is organized, provided
that such bank is not under intervention, receivership or any similar
arrangement at the time of the acquisition of such certificates of deposit.


18






 



     “TIA”
or “Trust Indenture Act” means the Trust Indenture Act of 1939, as
amended (15 U.S. Code §§ 77aaa-77bbbb), as in effect on the date this Indenture
was executed, except as provided in Section 9.06.


     “Trade
Payables” means, with respect to any Person, any accounts payable
or any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services and required to be paid within one year.


     “Trading Day” means a day on which the principal national securities
exchange or market on which the Company’s Common Stock is listed or admitted to
trading is open for the transaction of business or, if the Company’s Common
Stock is not listed or admitted to trading on any national securities exchange
or market, any Business Day.


     “Transaction Date” means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date
such Indebtedness is to be Incurred and, with respect to any Restricted
Payment, the date such Restricted Payment is to be made.


     “Trustee” means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.


     “United States Bankruptcy Code” means the Bankruptcy Reform Act of 1978,
as amended and as codified in Title 11 of the United States Code, as amended
from time to time hereafter, or any successor federal bankruptcy law.


     “Unrestricted Subsidiary” means (i) any Subsidiary of the Company (other
than the Guarantor) that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner provided below;
and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors
may designate any Restricted Subsidiary (including any newly acquired or newly
formed Subsidiary of the Company but other than the Guarantor) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any Restricted
Subsidiary; provided that (A) any Guarantee by the Company or any Restricted
Subsidiary of any Indebtedness of the Subsidiary being so designated shall be
deemed an “Incurrence” of such Indebtedness by the Company or such Restricted
Subsidiary (or both, if applicable) at the time of such designation; (B) either
(I) the Subsidiary to be so designated has total assets of $1,000 or less or
(II) if such Subsidiary has assets greater than $1,000, such designation would
be permitted under Section 4.04; and (C) if applicable, the Incurrence of
Indebtedness would be permitted under this Indenture. The Board of Directors
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that immediately after giving effect to such designation (x) the
Company could Incur $1.00 of
additional Indebtedness under the first paragraph of Section 4.03 and (y)
no Default or Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers’ Certificate certifying that such


19






 




designation complied with the foregoing provisions. Notwithstanding anything
herein contained to the contrary, the Guarantor may not be designated as an
Unrestricted Subsidiary.


     “U.S.
Government Obligations” means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof at any time
prior to Final Maturity, and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.


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


     “Wholly-Owned” means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other
than any director’s qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly-Owned
Subsidiaries of such Person.



SECTION
1.02.      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 herein have the following meanings:


     “indenture
securities” means the Securities;


     “indenture
security holder” means a Holder or a Securityholder;


     “indenture
to be qualified” means this Indenture;


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


     “obligor” on the indenture securities means the Company or any other
obligor on the Securities.


     All other TIA terms used herein that are defined by the TIA, defined by
TIA reference to another statute or defined by a rule of the Commission and not
otherwise defined herein have the meanings assigned to them therein.


20






 



SECTION
1.03.      Rules of Construction. Unless the context otherwise
requires:


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


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


     (iii)       “or” is not exclusive;


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


     (v)        provisions apply to successive events and transactions;


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


     (vii)      all references to Sections or Articles refer to Sections or Articles
of this Indenture unless otherwise indicated.



ARTICLE TWO

THE SECURITIES




SECTION
2.01.      Form and Dating. The Securities and the Trustee’s
certificate of authentication shall be substantially in the form annexed hereto
as Exhibit A. The Securities may have notations, legends or endorsements
required by law, stock exchange agreements to which the Company is subject or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement on the Securities. Each Security shall be dated the date
of its authentication.


     The terms and provisions contained in the form of the Securities annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. Each of the Company and the Trustee, by its execution and
delivery of this Indenture, expressly agrees to the terms and provisions of the
Securities applicable to it and to be bound thereby.


     Securities shall be issued in the form of (i) one or more permanent global
Securities in registered form, substantially in the form set forth in Exhibit A
(collectively, the “Global Security”), deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided, or (ii) permanent certificated Securities in
registered form in substantially the form set forth in Exhibit A (the “Physical
Securities”); provided that only Restricted Securities shall bear the
Restrictive Legend. The aggregate principal amount of the Global Security may
from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian
for the Depositary or its nominee, as hereinafter provided.


     The definitive Securities shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the



21










 



rules of any securities exchange on which the Securities may be listed, all as
determined by the Officers executing such Securities, as evidenced by their
execution of such Securities.



SECTION 2.02.        Restrictive Legends.



                  
(a)        Unless and until the transfer restrictions under the Securities Act in
respect of a Restricted Security terminate in accordance with Section 2.08(c),
each such Restricted Security, whether issued in the form of a Global Security
or Physical Security, shall bear the legend set forth below on the face
thereof:



THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR
TRANSFERRED OTHER THAN IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND THE RULES AND REGULATIONS THEREUNDER OR AN EXEMPTION
THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.


                    
(b)        Each Global Security, whether or not a Restricted Security, shall also
bear the following legend on the face thereof:



UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO THE DEPOSITORY TRUST COMPANY OR NOMINEES OF THE DEPOSITORY
TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE
INDENTURE.


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SECTION 2.03.      Execution, Authentication and Denominations. Subject to
Article Four and applicable law, the aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The
Securities shall be executed by two Officers of
the Company. The signature of these Officers on the Notes may be by
facsimile or manual signature in the name and on behalf of the Company.


     If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee or authenticating agent authenticates the Security, the
Security shall be valid nevertheless.


     A Security shall not be valid until an authorized signatory of the Trustee
or authenticating agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.


     At any time and from time to time after the execution of this Indenture,
the Trustee or an authenticating agent shall upon receipt of a Company Order
authenticate for original issue Securities in the aggregate principal amount
specified in such Company Order; provided that the Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel of the Company in connection
with such authentication of Securities. The Opinion of Counsel shall be to the
effect that:


          (a)     the form and terms of such Securities have been established by or
pursuant to a Board Resolution of the Company or, if applicable, an indenture
supplemental hereto in conformity with the provisions of this Indenture;



          (b)     such supplemental indenture, if any, when executed and delivered by
the Company, the Guarantor and the Trustee, will constitute a valid and binding
obligation of the Company and the Guarantor;



          (c)     such Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding obligations of the
Company and the Guarantor in accordance with their terms and will be entitled
to the benefits of this Indenture, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general
equitable principles; and



          (d)     each of the Company and the Guarantor has been duly incorporated in,
and is a validly existing corporation in good standing under the laws of, the
jurisdiction of its incorporation.



          (e)     Such Company Order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated and, in the case of an issuance of Securities pursuant to Section
2.15, shall certify that such issuance is in compliance with Article Four.



23






 





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


     The Securities shall be issuable only in registered form without coupons
and only in denominations of $1.00 in principal amount and any integral
multiple of $1.00 in excess thereof.



SECTION 2.04.      Registrar, Paying and Conversion Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the “Registrar”), an office or agency where
Securities may be presented for payment (the “Paying Agent”), an office or
agency where Securities may be presented for conversion (the “Conversion
Agent”), and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served, which
shall be in the Borough of Manhattan, The City of New York. The Company shall
cause the Registrar to keep a register of the Securities and of their transfer,
exchange or conversion (the “Security Register”). The Company may have one or
more co-Registrars and one or more additional Paying Agents.


     The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain
a Registrar, Paying Agent and Conversion Agent and/or agent for service of
notices and demands, the Trustee shall act as such Registrar, Paying Agent and
Conversion Agent and/or agent for service of notices and demands for so long as
such failure shall continue and shall be entitled to compensation therefor
pursuant to Section 7.07. The Company may remove any Agent upon written notice
to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to
such Agent as evidenced by an appropriate agency agreement entered into by the
Company and such successor Agent and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as such Agent until
the appointment of a successor Agent in accordance with clause (i) of this
proviso. The Company, any Subsidiary of the Company, or any Affiliate of any
of them may act as Paying Agent, Conversion Agent, Registrar or co-Registrar,
and/or agent for service of notice and demands; provided that neither the
Company, a Subsidiary of the Company nor an Affiliate of any of them shall act
as Paying Agent in connection with the defeasance of the Securities or the
discharge of this Indenture under Article Eight.


     The Company initially appoints the Trustee as Registrar, Paying Agent,
Conversion Agent, authenticating agent and agent for service of notice and
demands. If, at any time, the Trustee is not the Registrar, the Registrar
shall make available to the Trustee before each Interest Payment Date and at
such other times as the Trustee may reasonably request, the names and addresses
of the Holders as they appear in the Security Register.



SECTION 2.05.      Paying Agent to Hold Money in Trust. Not later than 11:00
a.m. New York City time on each due date of the principal, premium, if any, and
interest on any Securities,


24






 


the Company shall deposit with the Trustee money in
immediately available funds sufficient to pay such principal, premium, if any,
and interest so becoming due. The Company shall require each Paying Agent, if
any, other than the Trustee to agree in writing that such Paying Agent shall
hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal of, premium, if any, and
interest on the Securities (whether such money has been paid to it by the
Company or any other obligor on the Securities), and that such Paying Agent
shall promptly notify the Trustee in writing of any default by the Company (or
any other obligor on the Securities) in making any such payment. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent shall have
no further liability for the money so paid over to the Trustee. If the Company
or any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it will, on or before each due date of any principal of, premium, if
any, or interest on the Securities, segregate and hold in a separate trust fund
for the benefit of the Holders a sum of money sufficient to pay such principal,
premium, if any, or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture,
and will promptly notify the Trustee in writing of its action or failure to act
as required by this Section 2.05. The Trustee shall arrange with all Paying
Agents for the payment, from funds furnished by the Company to the Trustee
pursuant to this Indenture, of principal and interest on the Securities and of
the compensation of the Paying Agents for their services as such from funds
furnished by the Company to the Trustee.



SECTION 2.06.      Transfer and Exchange. The Securities are issuable only in
registered form. A Holder may transfer a Security by written application to
the Registrar stating the name of the proposed transferee and otherwise
complying with the terms of this Indenture. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
registration of the transfer by the Registrar in the Security Register. Prior
to the registration of any transfer by a Holder as provided herein, the
Company, the Guarantor, the Trustee, and any agent of the Company, the
Guarantor or the Trustee shall treat the Person in whose name the Security is
registered as the owner thereof for all purposes whether or not the Security
shall be overdue, and neither the Company, the Guarantor, the Trustee, nor any

such agent shall be affected by notice to the contrary. Furthermore, any
Holder of or beneficial owner of an interest in a Global Security shall, by
acceptance of such Global Security, be deemed to have agreed that transfers of
beneficial interests in such Global Security may be effected only through a
book-entry system maintained by the Depositary (or its agent), and that
ownership of a beneficial interest in the Security shall be required to be
reflected in a book entry. When Securities are presented to the Registrar or a
co-Registrar with a request to register the transfer or to exchange them for an
equal principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met. To permit registrations of
transfers and exchanges in accordance with the terms, conditions and
restrictions hereof, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be
made to any Holder for any registration of transfer or exchange or redemption
of the Securities, but the Company may require payment by the Holder of a sum
sufficient to cover any transfer tax or similar


25






 


governmental charge payable in
connection therewith (other than any such transfer taxes or other
similar governmental charge payable upon transfers, exchanges or redemptions pursuant
to Section 2.11, 4.11, 4.12, 9.08 or 10.04).


     The Registrar shall not be required (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 9.03 or Section 9.08 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.



SECTION 2.07.      Book-Entry Provisions for Global Securities.


          (a)     The Global Securities initially shall (i) be registered in the name of
the Depositary for such Global Securities or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii) as
applicable, bear legends as set forth in Section 2.02; provided, however, that
Global Securities bearing the legend required under Section 2.02(a) hereof
shall be certificated and held separately from Global Securities not containing
such legend.



     Members
of, or participants in, the Depositary (“Agent Members”) shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under any
Global Security, and the Depositary may be treated by the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Security.


          (b)     Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Security
may be transferred in accordance with the applicable rules and procedures of
the Depositary and the provisions of Section 2.08. In addition, Physical
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for the Global
Security and a successor depositary is not appointed by the Company within 90
days of such notice or (ii) an Event of Default has occurred and is continuing
and the Registrar has received a request to the foregoing effect from the
Depositary.



          (c)     In connection with any transfer pursuant to paragraph (b) of this
Section 2.07 of a portion of the beneficial interests in a Global Security to
beneficial owners who are required to hold Physical Securities, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the Global Security in an amount equal to the



26






 





principal amount of the
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount.


          (d)     In connection with the transfer of an entire Global Security to
beneficial owners pursuant to paragraph (b) of this Section 2.07, the Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the Global Security an equal aggregate principal amount
of Physical Securities of authorized denominations.



          (e)     Any Physical Security delivered to an Affiliated Holder in exchange
for an interest in the Global Security pursuant to paragraph (b) or (c) of this
Section 2.07 shall, except as otherwise provided by paragraph (a) or (c) of
Section 2.08, bear the legend regarding transfer restrictions applicable to the
Physical Security set forth in Section 2.02.



          (f)     The registered holder of a Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.




SECTION 2.08.      Special Transfer Provisions Applicable to Restricted Securities.
Unless and until a Restricted Security ceases to be a Restricted
Security as provided under Section 2.08(c), transfers of such Restricted
Security shall only be permitted as specified below:


          (a)     Restrictive Legend. Upon the transfer, exchange or replacement of
Securities not bearing the Restrictive Legend, the Registrar shall deliver
Securities that do not bear the Restrictive Legend. Upon the transfer,
exchange or replacement of Restricted Securities, the Registrar shall deliver
only Securities that bear the Restrictive Legend unless (i) the Restrictive
Legend is no longer required by Section 2.02, (ii) such restrictions on
transfer shall be terminated in accordance with paragraph (c) of this Section
2.08 or (iii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.



          (b)     General. By its acceptance of any Restricted Security, each Holder
of, or beneficial owner of an interest in, such Restricted Security
acknowledges the restrictions on transfer of such Restricted Security set forth
in this Indenture and in the Restrictive Legend and agrees that it will
transfer such Restricted Security only as provided in this Indenture. The
Registrar shall not register a transfer of any Restricted Security unless such
transfer complies with the restrictions on transfer of such Restricted Security
set forth in this Indenture. In connection with any transfer of Restricted
Securities, each such Holder or beneficial owner agrees by its acceptance of
Restricted Securities to furnish to the Registrar and the Company such
certifications, legal opinions or other information as the Company may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall



27






 





not be required to determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other
information.


          (c)     Termination of Restrictions on Transfer. The restrictions imposed by
this Section 2.08 and Section 2.02 upon the transferability of any particular
Restricted Security shall cease and terminate when such Restricted Security has
been sold pursuant to an effective Registration Statement or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto), or is eligible to be transferred pursuant to paragraph (k) of Rule
144, and thereupon the Company shall deliver to the Trustee an Officer’s
Certificate to such effect. Any Restricted Security as to which the Company
has delivered to the Trustee an Officers’ Certificate that such restrictions on
transfer shall have expired in accordance with their terms or shall have
terminated may, upon surrender of such Restricted Security for exchange to the
Registrar in accordance with the provisions of this Section 2.08, be exchanged
for a new Security, of like tenor and aggregate principal amount, which shall
not bear the restrictive legends required by Section 2.02. The Company shall
inform the Trustee in writing of the effective date of any Registration
Statement registering the Securities under the Securities Act. The Trustee
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the aforementioned Registration Statement. As used in
the preceding two paragraphs of this Section 2.08, the term “transfer”
encompasses any sale, pledge, transfer or other disposition of any Restricted
Security.



          (d)     Securities Law Compliance. Neither the Trustee nor any of its agents
shall (i) have any duty to monitor compliance with or with respect to any
federal or state or other securities or tax laws or (ii) have any duty to
obtain documentation on any transfers or exchanges other than as specifically
required hereunder.



          (e)     Record Retention. The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 2.07 or
this Section 2.08. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.




SECTION 2.09.      Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder claims that the Security has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security of like tenor and principal amount
and bearing a number not contemporaneously outstanding; provided that the
requirements of the second paragraph of Section 2.10 are met. If required by
the Trustee or the Company, an indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge such Holder for its expenses
and the expenses of the Trustee in replacing a Security. In case any such
mutilated, lost, destroyed or wrongfully taken Security has become or is about
to become due and payable, the Company in its discretion may pay the principal
of, premium, if any, and interest accrued on such Security instead of issuing a
new Security in replacement thereof.


28






 


     Every replacement Security is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture.



SECTION 2.10.      Outstanding Securities. Securities outstanding at any time
are all Securities that have been authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section 2.10 as not outstanding.


     If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.


     If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay the principal of,
premium, if any, and interest accrued on Securities payable on that date, then
on and after that date such Securities cease to be outstanding and interest on
them shall cease to accrue.


     A Security does not cease to be outstanding because the Company or one of
its Affiliates holds such Security, provided that, in determining whether the
Holders of the requisite principal amount of the outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
that the Trustee knows to be so owned shall be so disregarded. Securities so
owned that have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.



SECTION 2.11.      Temporary Securities. Until definitive Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until
so exchanged, the temporary Securities shall be entitled to the same benefits
under this Indenture as definitive Securities.



SECTION 2.12.      Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder that the Company


29






 


may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder that the Company has not issued and sold. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for transfer, exchange, payment or cancellation and
shall dispose of them in accordance with its normal procedure. The Company
shall not issue new Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.



SECTION 2.13.      CUSIP, CINS and ISIN Numbers. The Company in issuing the
Securities may use “CUSIP”, “CINS”, “ISIN” or other identification numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP numbers, CINS
numbers, ISIN numbers or other identification numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders; provided that
any such notice shall state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption, conversion or exchange and that reliance may be
placed only on the other identification numbers printed on the Securities;
provided further, that failure to use “CUSIP”, “CINS”, “ISIN” or other
identification numbers in any notice of redemption, conversion or exchange
shall not effect the validity or sufficiency of such notice.



SECTION 2.14.      Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay the defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date.
A special record date, as used in this Section 2.14 with respect to the payment
of any defaulted interest, shall mean the 15th day next preceding the date
fixed by the Company for the payment of defaulted interest, whether or not such
day is a Business Day. At least 15 days before the subsequent special record
date, the Company shall mail to each Holder and to the Trustee a notice that
states the subsequent special record date, the payment date and the amount of
defaulted interest to be paid.



SECTION 2.15.      Issuance of Additional Securities. The Company may not
issue additional Securities under this Indenture.



ARTICLE THREE

CONVERSION




SECTION 3.01.      Conversion Privilege. Subject to the further provisions of
this Section 3.01, a Holder of a Security may convert such Security at any time
after the date hereof (but if such Security is called for redemption pursuant
to Article Nine, then only to and including but not after the close of business
on the fifth Business Day preceding the Redemption Date, provided that no
default by the Company in the payment of the Redemption Price shall have
occurred and be continuing on the Redemption Date in which case such right of
conversion shall be reinstated), at the Conversion Price (as hereinafter
defined) then in effect into shares of the Company’s Common Stock; provided
that, if the Holder of a Security tenders such Security pursuant to an Offer to
Purchase made as a result of a Change in Control, such Security may only be
converted if such Holder properly withdraws its election to participate in such
Offer to


30






 


Purchase prior to consummation of such Offer to Purchase. The number
of shares of the Company’s Common Stock issuable upon conversion of a Security
shall be determined by dividing the principal amount of the Security or portion
thereof surrendered for conversion by the
Conversion Price in effect on the Conversion Date. Subject to adjustment
or voluntary reduction as provided in this Article 3, the
“Conversion Price”
shall be calculated as follows:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Sixth Month	 	First	 	18th Month	 	Second
Anniversary of
	 	 	 	 	 	 	Anniversary	 	Anniversary	 	Anniversary	 	the Closing Date
	 	 	 	 	 	 	of the	 	of the	 	of the	 	and thereafter
	 	 	Closing	 	Closing	 	Closing	 	Closing	 	until Final
	 	 	Date	 	Date	 	Date	 	Date	 	Maturity
	 	 	
	 	
	 	
	 	
	 	

	Conversion Price
	 	$	14.39	 	$	14.17	$	13.97	$	13.76	$	13.56



     In the event that the Conversion Date shall be a date between any of the
dates specified in the table above (but prior to the second anniversary of the
Closing Date), the Conversion Price shall be calculated on the basis of the
decrease in the Conversion Price between such dates based a period of 180 days.


     A Holder may convert a portion of a Security equal to $1.00 or any
integral multiple thereof. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.


     A Holder of Securities is not entitled to any rights of a holder of the
Company’s Common Stock until such Holder has converted its Securities to the
Company’s Common Stock, and only to the extent such Securities have been
converted into the Company’s Common Stock pursuant to this Article 3.



SECTION 3.02.      Conversion Procedure. To convert a Security, a Holder must
(a) complete and manually sign the conversion notice on the back of the
Security (or complete and manually sign a facsimile of such notice) and deliver
such notice to the Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) furnish appropriate endorsements and transfer documents
if required by the Registrar or the Conversion Agent, (d) have satisfied any
necessary filing requirements under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the “HSR Act”), in respect of its
acquisition of the shares of Common Stock upon such conversion and the waiting
period under such HSR Act shall have expired or been terminated without
objection to such acquisition, (e) have received any other necessary regulatory
consents to its acquisition of the shares of Common Stock upon such conversion
and (f) pay any transfer or similar tax if required pursuant to Section 3.04
hereof. The date on which the Holder satisfies all of those requirements is
the “Conversion Date.” The notice of conversion shall state that the Holder
has satisfied or will have satisfied prior to the issuance of shares of Common
Stock upon conversion of such principal amount, and any accrued and unpaid
interest thereon, any and all legal or regulatory requirements for conversion,
including compliance with the Securities Act, the Exchange Act and the HSR Act.
The Company shall use its reasonable best efforts in cooperating in a timely
manner with such Holder to obtain such legal or regulatory approvals to the
extent its cooperation is necessary.


31






 


     As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through the Conversion Agent a certificate for the number
of whole shares of the Company’s
Common Stock issuable upon the conversion, payment for accrued and unpaid
interest on such Security, and cash in lieu of any fractional shares pursuant
to Section 3.03.


     The Person in whose name the certificate is registered shall be deemed to
be a stockholder of record on and after the Conversion Date, as the case may
be; provided that no surrender of a Security on any date when the stock
transfer books of the Company shall be closed shall be effective to constitute
the Person or Persons entitled to receive the shares of the Company’s Common
Stock upon such conversion as the record holder or holders of such shares of
the Company’s Common Stock on such date, but such surrender shall be effective
to constitute the Person or Persons entitled to receive such shares of the
Company’s Common Stock as the record holder or holders thereof for all purposes
at the close of business on the next succeeding day on which such stock
transfer books are open; and provided, further, that such conversion shall be
at the Conversion Price in effect on the Conversion Date as if the stock
transfer books of the Company had not been closed. Upon conversion of a
Security, such Person shall no longer be a Holder of such Security.


     If any Holder surrenders a Security for conversion after the close of
business on the Regular Record Date for the payment of an installment of
interest and before the close of business on the related Interest Payment Date,
the Company shall pay accrued interest, if any, through the Conversion Date to
the Holder of such Security on such Regular Record Date. On conversion of a
Security, that portion of accrued original issue discount attributable to the
period from the Closing Date to the Conversion Date with respect to the
converted Security shall not be canceled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the Holder thereof through the delivery
of shares of the Company’s Common Stock (together with the cash payment, if
any, in lieu of fractional shares) in exchange for the Security being
converted.


     If a Holder converts more than one Security at the same time, the number
of shares of the Company’s Common Stock issuable upon the conversion shall be
based on the aggregate Claimed Amount of Securities converted.


     Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security equal in principal amount to the unconverted portion of the Security
surrendered.


     If the last day on which a Security may be converted is not a Business Day
in a place where a Conversion Agent is located, the Security may be surrendered
to that Conversion Agent on the next succeeding day that is a Business Day.



SECTION 3.03.      Fractional Shares. The Company shall not issue fractional
shares of its Common Stock upon conversion of Securities. In lieu thereof, the
Company shall pay an amount in cash based upon the Closing Price of its Common
Stock on the Business Day immediately prior to the Conversion Date.


32






 



SECTION 3.04.      Taxes on Conversion. If a Holder converts a Security, the
Company shall pay any documentary, stamp or similar issue or transfer tax due
on the issue of shares of its Common Stock upon such conversion. However, the
Holder shall pay any such tax that is due
because the Holder requests the shares to be issued in a name other than
the Holder’s name. The Conversion Agent may refuse to deliver the certificate
representing the shares of the Company’s Common Stock being issued in a name
other than the Holder’s name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder’s name. Nothing herein shall preclude any tax
withholding required by law or regulation.



SECTION 3.05.      Company to Provide Stock. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as it may be
necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of its Common Stock to permit the conversion of all
outstanding Securities into shares of such Common Stock.


     All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly authorized,
validly issued, fully paid and nonassessable and shall be free from preemptive
rights and free of any Lien or adverse claim.


     The Company shall endeavor promptly to comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock
upon conversion of Securities, if any, and will list or cause to have quoted
such shares of Common Stock on each national securities exchange or on the
over-the-counter market or such other market on which such Common Stock is then
listed or quoted.



SECTION 3.06.      Adjustment of Conversion Price. The Conversion Price shall
be adjusted from time to time by the Company as follows:


          (a)     In case the Company shall (i) pay a dividend in shares of Common Stock
to the holders of its Common Stock, (ii) make a distribution in shares of
Common Stock to the holders of its Common Stock, (iii) subdivide or split its
outstanding Common Stock into a larger number of shares, or (iv) combine its
outstanding Common Stock into a smaller number of shares, the Conversion Price
in effect immediately prior thereto shall be adjusted so that the Holder of any
Security thereafter surrendered for conversion shall be entitled to receive
that number of shares of Common Stock that it would have owned or been entitled
to receive had such Security been converted immediately prior to the happening
of such event. An adjustment made pursuant to this subsection (a) shall become
effective as of the close of business on the record date in the case of a
dividend in shares or distribution and shall become effective as of the close
of business on the effective date in the case of a subdivision, split or
combination.



          (b)     In case (i) the Company shall issue rights or warrants to all or
substantially all holders of its Common Stock entitling them (for a period
commencing no earlier than the record date described below and expiring not
more than 60 days after such record date) to subscribe for or purchase shares
of its Common Stock (or securities convertible into its Common Stock) at a
price per share less than the Current Market Price per share of the Company’s
Common Stock at the record date for the determination of stockholders entitled
to receive such



33






 





rights or warrants or (ii) the Company shall sell or issue any
Common Stock and the consideration per share of such Common Stock to be paid
upon such sale or issuance is less than the Current Market Price per share of
such Common Stock or the Company shall sell or issue
warrants, rights or other convertible securities to subscribe for or
purchase shares of its Common Stock at a price per share less than the Current
Market Price per share of such Common Stock on the date of such sale or
issuance, the Conversion Price in effect as of the close of business on the
record date thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect on the record date by
a fraction, the numerator of which shall be the number of shares of the
Company’s Common Stock outstanding on such record date, plus the number of
shares which the aggregate offering price of the total number of shares of the
Company’s Common Stock so offered (or the aggregate conversion price of the
convertible securities so offered) would purchase at such Current Market Price,
and the denominator of which shall be the number of shares of the Company’s
Common Stock outstanding on such record date plus the number of additional
shares of the Company’s Common Stock offered (or into which the convertible
securities so offered are convertible). Such adjustment shall be made
successively whenever any such rights, warrants or convertible securities are
issued, and shall become effective as of the close of business on such record
date. If at the end of the period during which such rights or warrants are
exercisable not all rights or warrants shall have been exercised, the adjusted
Conversion Price shall be immediately readjusted to what it would have been
based upon the number of additional shares of the Company’s Common Stock
actually issued (or the number of shares of the Company’s Common Stock issuable
upon conversion of convertible securities actually issued).


          (c)     In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock, cash (excluding (x) any regular cash dividend on
such Common Stock to the extent that the aggregate cash dividend per share of
the Common Stock in any four fiscal quarters does not exceed the greater of (A)
the amount per share of the Common Stock of the cash dividend on the Common
Stock for the preceding four fiscal quarters to the extent that such dividend
for the preceding four fiscal quarters did not require any adjustment of the
Conversion Price pursuant to this Section 3.06(c) (as adjusted to reflect
subdivisions or combinations of the Common Stock), and (B) 3.75% of the
arithmetic average of the Closing Prices during the ten Business Days
immediately prior to the date of declaration of such dividend, (y) any dividend
or distribution in connection with the liquidation, dissolution or winding up
of the Company, whether voluntary or involuntary, and (z) any cash that is
distributed as part of a distribution requiring a Conversion Price adjustment
pursuant to Section 3.06(d)), then, in such case, the Conversion Price shall be
decreased so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on the
record date of such action by a fraction, the numerator of which shall be the
Current Market Price of the Company’s Common Stock on such record date less the
amount of cash so distributed (and not excluded as provided above) applicable
to one share of the Company’s Common Stock and the denominator shall be the
Current Market Price of the Company’s Common Stock on such record date, such
decrease shall be effective immediately prior to the opening of business on the
day following the record date of such action; provided that, in the event the
portion of the cash so distributed applicable to one share of the Company’s
Common Stock is equal to or greater than the Current Market Price of such
Common Stock on



34






 





the record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive
upon conversion the amount of cash such Holder would have received had such
Holder converted such Security on the record date. In the event
that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared. If any
adjustment is required to be made as set forth in this Section 3.06(c) as a
result of a distribution that is a regular dividend, such adjustment shall be
based upon the amount by which such distribution exceeds the amount of the
regular cash dividend permitted to be excluded pursuant hereto. If an
adjustment is required to be made as set forth in this Section 3.06(c) above as
a result of a distribution that is not a regular dividend, such adjustment
shall be based upon the full amount of the distribution.


          (d)     In case the Company shall distribute to all or substantially all
holders of its Common Stock any shares of Capital Stock of the Company (other
than Common Stock), evidences of indebtedness or other non-cash assets
(including securities of any Person), or shall distribute to all holders of its
Common Stock rights or warrants to subscribe for or purchase any of its
securities (excluding those referred to in Section 3.06(b)) (any of the
foregoing hereinafter referred to as the “Distributed
Securities”), then in
each such case the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect as of
the close of business on the record date for such distribution by a fraction,
the numerator of which shall be the Current Market Price of the Company’s
Common Stock on the record date mentioned below less the fair market value on
such record date of the portion of the Distributed Securities applicable to one
share of the Company’s Common Stock (determined on the basis of the number of
shares of the Company’s Common Stock outstanding on the record date), and the
denominator of which shall be the Current Market Price per share of the
Company’s Common Stock on such record date. Such adjustment shall become
effective as of the close of business on the record date for the determination
of stockholders entitled to receive such distribution. Notwithstanding the
foregoing, in the event (x) that the Company shall distribute rights or
warrants (other than those referred to in Section 3.06(b)) pro rata to holders
of its Common Stock or (y) the then fair market value of the portion of the
Distributable Securities so distributed applicable to one share of the
Company’s Common Stock is equal to or greater than the Current Market Price of
such Common Stock, the Company may, in lieu of making any adjustment pursuant
to this Section 3.06, make proper provision so that each Holder of a Security
who converts such Security (or any portion thereof) after the record date for
such distribution and shall be entitled to receive upon such conversion, in
addition to the shares of the Company’s Common Stock issuable upon such
conversion (the “Conversion Shares”), the amount of Distributed Securities such
Holder would have received had such Holder converted such Security on such
record date; provided that, with respect to clause (x), the foregoing provision
shall apply only to the extent the Distributed Securities receivable upon
conversion for such Security would be convertible, exchangeable or exercisable,
as applicable, without any loss of rights or privileges for a period of at
least 60 days following conversion of such Security.



          (e)     In case a tender or exchange offer made by the Company or any
Subsidiary of the Company for all or any portion of the Company’s Common Stock
shall expire and such tender or exchange offer shall involve the payment by the
Company or such Subsidiary of consideration per share of the Company’s Common
Stock having a fair market value (as



35






 





determined by the Board of Directors of
the Company or, to the extent permitted by applicable law, a duly authorized
committee thereof, whose determination shall be conclusive, and described in a
resolution of such Board of Directors or such duly authorized committee
thereof,
as the case may be, at the last time (the “Expiration Time”) tenders or
exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended)) that exceeds the Current Market Price per share of the
Company’s Common Stock on the Trading Day next succeeding the Expiration Time,
the Conversion Price shall be reduced so that the same shall equal the
Conversion Price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be the number of shares of the Company’s Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Current Market Price of the Company’s Common Stock on the Trading Day
next succeeding the Expiration Time, and the denominator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted up to any such maximum, being referred to as the
“Purchased Shares”) and (y) the product of the number of shares of the
Company’s Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price of the Company’s Common Stock on
the Trading Day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the Trading Day next
succeeding the Expiration Time. In the event that the Company or such
Subsidiary is obligated to purchase shares of the Company’s Common Stock
pursuant to any such tender or exchange offer, but the Company or such
Subsidiary is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall again
be adjusted to be the Conversion Price that would then be effect if such tender
or exchange offer had not been made.


          (f)     In case a tender or exchange offer made by a Person other than the
Company or any Subsidiary of the Company for an amount that increases the
offeror’s ownership of the Company’s Common Stock to more than 30% of the
Company’s Common Stock outstanding shall expire and such tender or exchange
offer shall involve the payment by such Person of consideration per share of
the Company’s Common Stock having a fair market value (as determined by the
Board of Directors of the Company or to the extent permitted by applicable law,
a duly authorized committee thereof, whose determination shall be conclusive,
and described in a resolution of such Board of Directors or such duly
authorized committee thereof, as the case may be) at the Expiration Time that
exceeds the Current Market Price of the Company’s Common Stock on the Trading
Day next succeeding the Expiration Time, and in which, as of the Expiration
Time the Board of Directors of the Company is not recommending rejection of the
offer, the Conversion Price shall be reduced so that the same shall equal the
Conversion Price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be the number of shares of the Company’s Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Current Market Price of the Company’s Common Stock on the Trading Day
next succeeding the Expiration Time and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to



36






 





stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all Purchased Shares and (y) the
product of the number of shares of the Company’s Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and
the Current Market Price of the Company’s Common Stock on the Trading Day
next succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time. In the event that such Person is obligated to purchase shares
of the Company’s Common Stock pursuant to any such tender or exchange offer,
but such Person is permanently prevented by applicable law from effecting any
such purchases or all such purchases are rescinded, the Conversion Price shall
again be adjusted to be the Conversion Price that would then be in effect if
such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 3.06(f) shall not be made
if, as of the Expiration Time, the offering documents with respect to such
offer disclose a plan or intention to cause the Company to engage in any
transaction described in Article 5.


          (g)     In any case in which this Section 3.06 shall require that an
adjustment be made on a record date established for purposes of this Section
3.06, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 3.09) issuing to the Holder of any Security converted
after such record date but prior to the issue date, the shares of the Company’s
Common Stock and other capital stock of the Company issuable upon such
conversion over and above the shares of the Company’s Common Stock and other
capital stock of the Company issuable upon such conversion only on the basis of
the Conversion Price prior to adjustment; and, in lieu of the shares the
issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company
of the right to receive such shares. If any distribution in respect of which an
adjustment to the Conversion Price is required to be made as of the record date
or effective date therefor is not thereafter made or paid by the Company for
any reason, the Conversion Price shall be readjusted to the Conversion Price
which would then be in effect if such record date had not been fixed or such
effective date had not occurred.




SECTION 3.07.      No Adjustment. No adjustment in the Conversion Price shall
be required unless the adjustment would require an increase or decrease of at
least 1% in the Conversion Price as last adjusted; provided that any
adjustments which by reason of this Section 3.07 are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Article 3 shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be.


     No adjustment need be made for a transaction referred to in Section 3.06
if all Holders are entitled to participate in the transaction on a basis and
with notice to the same extent as holders of the Company’s Common Stock
participate in the transaction. The Company shall give notice to the Trustee
of any such determination.


     No adjustment need be made for rights to purchase the Company’s Common
Stock or issuances of Company’s Common Stock pursuant to a Company plan for
reinvestment of dividends or interest.


37






 


     No adjustment need be made for a change in the par value or a change to no
par value of the Company’s Common Stock.


     To the extent that the Securities become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.



SECTION 3.08.      Adjustment for Tax Purposes. The Company shall be entitled
to make such reductions in the Conversion Price, in addition to those required
by Section 3.06, as it in its discretion shall determine to be advisable in
order that any stock dividends, subdivisions of shares, distributions of rights
to purchase stock or Securities or distributions of Securities convertible into
or exchangeable for Capital Stock hereafter made by the Company to its
stockholders shall not be taxable, provided that such reduction does not have
an adverse effect for tax purposes, or otherwise, on holders of the Securities.



SECTION 3.09.      Notice of Adjustment. Whenever the Conversion Price is
adjusted, the Company shall promptly mail to Holders a notice of the adjustment
and file with the Trustee an Officers’ Certificate briefly stating the facts
requiring the adjustment, the manner of computing it and the new Conversion
Price.



SECTION 3.10.      Notice of Certain Transactions. In the event that:


          (a)     the Company takes any action that would require an adjustment in the
Conversion Price,



          (b)     the Company takes any action that would require a supplemental
indenture pursuant to Section 3.11 or consolidates or merges with, or transfers
all or substantially all of its property and assets to, another corporation and
stockholders of the Company must approve the transaction, or



          (c)     there is a dissolution or liquidation of the Company,



the Company shall mail to Holders and file with the Trustee a notice stating
the proposed record or effective date, as the case may be. The Company shall
mail the notice at least 15 days before such date. Failure to mail such notice
or any defect therein shall not affect the validity of any transaction referred
to in clause (a), (b) or (c) of this Section 3.10.



SECTION 3.11.      Effect of Reclassification, Consolidation, Merger or Sale,
Transfer or Conveyance on Conversion Privilege. If any of the following shall
occur, namely:


          (a)     any reclassification or change of shares of the Company’s Common Stock
issuable upon conversion of the Securities (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination, or any other change for which an
adjustment is provided in Section 3.06);



          (b)     any consolidation or merger to which the Company is a party other than
a merger in which the Company is the continuing corporation and which does not
result in any reclassification of, or change (other than a change in name, or
in par value, or from par value to



38






 





no par value, or from no par value to par
value, or as a result of a subdivision or combination) in, outstanding shares
of the Company’s Common Stock; or


          (c)     any sale, transfer or conveyance of all or substantially all of the
property and assets of the Company to any Person,



then the Company, or such successor or purchasing corporation, as the case may
be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, sale, transfer or conveyance, execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security
then outstanding shall have the right to convert such Security into the kind
and amount of shares of stock and other securities and property (including
cash) receivable upon such reclassification, change, consolidation, merger,
sale, transfer or conveyance by a holder of the number of shares of the
Company’s Common Stock deliverable upon conversion of such Security immediately
prior to such reclassification, change, consolidation, merger, sale, transfer
or conveyance. Such supplemental indenture shall provide for adjustments of
the Conversion Price which shall be as nearly equivalent as may be practicable
to the adjustments of the Conversion Price provided for in this Article 3. If,
in the case of any such consolidation, merger, sale, transfer or conveyance,
the stock or other securities and property (including cash) receivable
thereupon by a holder of the Company’s Common Stock include shares of stock or
other securities and property of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger,
sale, transfer or conveyance, then such amendment to this Indenture shall also
be executed by such other corporation and shall contain such additional
provisions to protect the interests of the Holders of the Securities as the
Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 3.11 shall similarly apply to
successive consolidations, mergers, sales, transfer or conveyances.


     In the event the Company shall execute an amendment to this Indenture
pursuant to this Section 3.11, the Company shall promptly file with the Trustee
(x) an Officers’ Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or other Securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities
after any such reclassification, change, consolidation, merger, sale, transfer
or conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with, and (y) an Opinion of Counsel
that all conditions precedent have been complied with.



SECTION 3.12.      Trustee’s Disclaimer. The Trustee shall have no duty to
determine when an adjustment under this Article 3 should be made, how it should
be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be
protected in relying upon, an Officers’ Certificate, including the Officers’
Certificate with respect thereto that the Company is obligated to file with the
Trustee pursuant to Section 3.09. The Trustee makes no representation as to
the validity or value of any Securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company’s failure
to comply with any provisions of this Article 3.


     The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 3.11, but may


39






 


accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the
Officers’ Certificate with respect thereto that the Company is obligated to
file with the Trustee pursuant to Section 3.11.



ARTICLE FOUR

COVENANTS




SECTION 4.01.      Payment of Securities. The Company shall pay the principal
of, premium, if any, and interest on the Securities on the dates and in the
manner provided in the Securities and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date
due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the
Company, or any Affiliate of any of them) holds on that date money designated
for and sufficient to pay the installment. If the Company or any Subsidiary of
the Company or any Affiliate of any of them, acts as Paying Agent, an
installment of principal, premium, if any, or interest shall be considered paid
on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to the Company, the Trustee shall serve as
the Paying Agent for the Securities.


     The Company shall pay interest on overdue principal, premium, if any, and
interest on overdue installments of interest, to the extent lawful, at the rate
per annum specified in the Securities.



SECTION 4.02.      Maintenance of Offices or Agencies. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
(which may be an office of the Trustee, Registrar or co-Registrar or any
Affiliate of any of them) where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such offices or agencies. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.


     The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.


     The Company hereby initially designates the Corporate Trust Office of the
Trustee, located in the Borough of Manhattan, The City of New York, as such
office of the Company in accordance with Section 2.04.


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SECTION 4.03.      Limitation on Indebtedness.


          (a)     The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than the Securities and
Indebtedness existing on the Closing Date); provided that, if no Event of
Default shall have occurred and be continuing at the time of or as a
consequence of the Incurrence of any such Indebtedness, the Company may Incur
Indebtedness if, after giving effect to the Incurrence of such Indebtedness and
the receipt and application of the proceeds therefrom, the Fixed Charge Coverage Ratio
would be at least 2.0 to 1.0.



     Notwithstanding the foregoing, the Company and any Restricted Subsidiary
(except as specified below) may Incur each and all of the following: (i)
Indebtedness in an aggregate principal amount not to exceed $150 million, or in
the event that the Company or any Restricted Subsidiary incurs any Indebtedness
permitted under clause (vii) of this paragraph, the difference between $150
million less the amount of any such Indebtedness incurred pursuant to said
clause (vii); provided that in the event that any Restricted Subsidiary (other
than the Guarantor) Incurs any Indebtedness pursuant to this clause (i) in
excess of $25 million in the aggregate at any time outstanding and the proceeds
of such Indebtedness are not used for capital expenditures, then any such
Restricted Subsidiary shall, as a condition precedent to incurring such
Indebtedness, execute and deliver a supplemental indenture to this Indenture
providing for a Guarantee of payment of the Securities by such Person; and
provided further that no more than 25% of the Indebtedness Incurred under this
clause (i) may be used for purposes other than capital expenditures; (ii)
Indebtedness owed (A) to the Company evidenced by a promissory note or (B) to
any Restricted Subsidiary; provided that any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or another Restricted
Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in
exchange for, or the net proceeds of which are used to refinance or refund,
then outstanding Indebtedness (other than Indebtedness Incurred under clause
(ii), (vi), (vii) or (x) of this paragraph) and any refinancings thereof in an
amount not to exceed the amount so refinanced or refunded (plus premiums,
accrued interest, fees and expenses); provided that Indebtedness the proceeds
of which are used to refinance or refund the Securities, the Security Guarantee
or Indebtedness that is pari passu with, or subordinated in right of payment
to, the Securities or the Security Guarantee shall only be permitted under this
clause (iii) if (A) in case the Securities or the Security Guarantee are
refinanced in part or the Indebtedness to be refinanced is pari passu with the
Securities or the Security Guarantee, such new Indebtedness, by its terms or by
the terms of any agreement or instrument pursuant to which such new
Indebtedness is outstanding, is expressly made pari passu with, or subordinate
in right of payment to, the remaining Securities or Security Guarantee, as the
case may be, (B) in case the Indebtedness to be refinanced is subordinated in
right of payment to the Securities or the Security Guarantee, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is issued or remains outstanding, is
expressly made subordinate in right of payment to the Securities or the
Security Guarantee at least to the extent that the Indebtedness to be
refinanced is subordinated to the Securities or the Security Guarantee, as the
case may be, and (C) such new Indebtedness, determined as of the date of
Incurrence of such new Indebtedness, does not mature prior to the Stated
Maturity of the Indebtedness to be refinanced or refunded,


41






 


and the Average Life
of such new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded; and provided further that in no
event may Indebtedness of the Company or the Guarantor be refinanced by means
of any Indebtedness of any Restricted Subsidiary other than the Guarantor
pursuant to this clause (iii); (iv) Indebtedness (A) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, (B) under
Currency Agreements and Interest Rate Agreements; provided that such
agreements (a) are designed solely to protect the Company or its
Restricted Subsidiaries against fluctuations in foreign currency exchange rates
or interest rates and (b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder; and (C) 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 Restricted Subsidiary (other than Guarantees of
Indebtedness Incurred by any Person acquiring all or any portion of such
business, assets or Restricted Subsidiary for the purpose of financing such
acquisition), in a principal amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in connection with such
disposition; (v) Indebtedness of the Company, to the extent the net proceeds
thereof are promptly (A) used to purchase Securities and Series B Notes
tendered in an Offer to Purchase made as a result of a Change in Control or (B)
deposited to defease the Securities (as described below under Article Eight)
and the Series B Notes (as provided in Article Eight of the Series B Notes
Indenture); (vi) Guarantees of the Securities and Guarantees of Indebtedness of
the Company by any Restricted Subsidiary provided the Guarantee of such
Indebtedness is permitted by and made in accordance with Section 4.07; (vii)
Indebtedness outstanding at any time in the aggregate principal amount not to
exceed $50 million from official, regional and multilateral development
agencies; (viii) Acquired Indebtedness (I) to the extent Incurred in connection
with an Asset Acquisition in which the consideration paid by the Company or any
of its Restricted Subsidiaries consists solely of Capital Stock (other than
Disqualified Stock) of the Company, without any limitations as to amount or
(II) to the extent Incurred in connection with an Asset Acquisition in which
the consideration paid by the Company or any of its Restricted Subsidiaries
consists of cash or other property, so long as the aggregate amount of such
consideration paid by the Company or any of its Restricted Subsidiaries does
not exceed $15 million; (ix) Series B Notes issued (1) pursuant to the Plan or
(2) to holders of Indebtedness existing as of the Closing Date in respect of
which such holders did not vote affirmatively to accept the Plan so long as the
amount of Series B Notes issued to any such holder does not exceed the amount
of such Indebtedness that such holder would have been entitled to receive had
it voted affirmatively to accept the Plan; (x) Indebtedness of any Restricted
Subsidiary, to the extent that the Company is the beneficial owner of such
Indebtedness and such Indebtedness is evidenced by a promissory note or
participation certificate issued to the Company by the record holder of such
indebtedness; and (xi) Indebtedness of the Company (in addition to Indebtedness
permitted under clauses (i) through (x) above) in an aggregate principal amount
outstanding at any time not to exceed $100 million, less any amount of such
Indebtedness permanently repaid as provided under Section 4.11; provided that
(i) such Indebtedness is expressly made subordinate in right of payment to the
Securities, the terms of


42






 


such subordinated Indebtedness expressly provide that
(A) the holders of such Indebtedness shall not be entitled to receive any
payments during such time as a Default or Event of Default has occurred and is
continuing under the Securities or accelerate such Indebtedness until such time
as a declaration of acceleration of the Securities has occurred pursuant to
Section 6.01 hereof and (B) in the event that a declaration of acceleration of
the Securities has been rescinded and annulled pursuant to Section 6.02 hereof,
the event giving rise to the acceleration of such
Indebtedness incurred pursuant to this clause (xi) shall be deemed cured
and such acceleration shall be deemed rescinded and annulled without any
further action, and (ii) such Indebtedness does not mature prior to Final
Maturity.


          (b)     Notwithstanding any other provision of this Section 4.03, the maximum
amount of Indebtedness that the Company or a Restricted Subsidiary may Incur
pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect
to any outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.



          (c)     For purposes of determining any particular amount of Indebtedness
under this Section 4.03, (1) Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (2) any Liens
granted pursuant to the equal and ratable provisions referred to in Section
4.09 shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 4.03, in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
the above clauses, the Company, in its sole discretion, shall classify, and
from time to time may reclassify, such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of such
clauses.




SECTION 4.04.      Limitation on Restricted Payments. The Company will not,
and will not permit any Restricted Subsidiary (including the Guarantor) to,
directly or indirectly, (i) declare or pay any dividend or make any
distribution on or with respect to its Capital Stock held by Persons other than
the Company or any Restricted Subsidiary (other than (x) dividends or
distributions payable solely in shares of its or such Restricted Subsidiary’s
Capital Stock (other than Disqualified Stock) or in options, warrants or other
rights to acquire shares of such Capital Stock and (y) pro rata dividends or
distributions on Common Stock of Restricted Subsidiaries; provided that such
payments made to Persons other than the Company or a Restricted Subsidiary
shall be included in calculating whether the conditions of clause (C) of this
first paragraph of Section 4.04 have been met), (ii) purchase, redeem, retire
or otherwise acquire for value any shares of Capital Stock of the Company or
the Guarantor (including options, warrants or other rights to acquire such
shares of Capital Stock) held by Persons other than the Company or any of its
Wholly-Owned Restricted Subsidiaries, (iii) make any voluntary or optional
principal payment, or voluntary or optional redemption, repurchase, defeasance,
or other acquisition or retirement for value, of Indebtedness of the Company
that is subordinated in right of payment to the Securities or of the Guarantor
that is subordinated to the Security Guarantee or (iv) make any Investment,
other than a Permitted Investment, in any Person (such payments or any other
actions described in clauses (i) through (iv) above being collectively
“Restricted Payments”) if, at the time of, and after giving effect to, the
proposed Restricted Payment: (A) a Default or Event of Default shall have
occurred and be continuing, (B) the Company could not Incur at least $1.00 of
Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate
amount of all


43






 


Restricted Payments (the amount, if other than in cash, to be
determined in good faith by the Board of Directors, whose determination shall
be evidenced by a Board Resolution) made after the Closing Date shall exceed
the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net
Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of
the amount of such loss) (determined by excluding income resulting from
transfers of assets by the Company or a Restricted Subsidiary to an
Unrestricted Subsidiary) accrued on a cumulative
basis during the period (taken as one accounting period) beginning on the
first day of the fiscal quarter commencing after the Closing Date and ending on
the last day of the last fiscal quarter preceding the Transaction Date for
which reports have been filed with the Commission or provided to the Trustee
pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by
the Company after the Closing Date as a capital contribution or from the
issuance and sale of its Capital Stock (other than Disqualified Stock) to a
Person who is not a Subsidiary of the Company, including an issuance or sale
permitted by this Indenture of Indebtedness of the Company for cash subsequent
to the Closing Date upon the conversion of such Indebtedness into Capital Stock
(other than Disqualified Stock) of the Company, or from the issuance to a
Person who is not a Subsidiary of the Company of any options, warrants or other
rights to acquire Capital Stock of the Company (in each case, exclusive of any
convertible indebtedness, Disqualified Stock or any options, warrants or other
rights that are redeemable at the option of the holder, or are required to be
redeemed, prior to Final Maturity), in each case except to the extent such Net
Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the
second paragraph under Section 4.03, plus (3) an amount equal to the net
reduction in Investments made pursuant to this first paragraph of this Section
4.04 in any Person resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of assets, in
each case to the Company or any Restricted Subsidiary or from the Net Cash
Proceeds from the sale of any such Investment (except, in each case, to the
extent any such payment or proceeds are included in the calculation of Adjusted
Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries (valued in each case as provided in the definition
of “Investments”), not to exceed, in each case, the amount of Investments
previously made and treated as Restricted Payments by the Company or any
Restricted Subsidiary in such Person or Unrestricted Subsidiary.


     The foregoing provision shall not be violated by reason of: (i) the
payment of any dividend within 60 days after the date of declaration thereof
if, at said date of declaration, such payment would comply with the foregoing
paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of payment
to the Securities including premium, if any, and accrued and unpaid interest,
with the proceeds of, or in exchange for, Indebtedness Incurred under clause
(iii) of the second paragraph of part (a) of Section 4.03; (iii) the
repurchase, redemption or other acquisition of Capital Stock of the Company or
any Restricted Subsidiary (or options, warrants or other rights to acquire such
Capital Stock) in exchange for, or out of the Net Cash Proceeds of a capital
contribution or a substantially concurrent offering of, shares of Capital Stock
(other than Disqualified Stock) of the Company (or options, warrants or other
rights to acquire such Capital Stock); provided that the Net Cash Proceeds from
such sale or such capital contribution (to the extent so used for such
Restricted Payment) shall be excluded from the calculation of the amounts under
clause (2) of the previous paragraph; (iv) the making of any principal payment
or the repurchase, redemption,


44






 


retirement, defeasance or other acquisition for
value of Indebtedness of the Company that is subordinated in right of payment
to the Securities in exchange for, or out of the Net Cash Proceeds of a capital
contribution or a substantially concurrent offering of, shares of the Capital
Stock (other than Disqualified Stock) of the Company (or options, warrants or
other rights to acquire such Capital Stock); provided, however, that the Net
Cash Proceeds from such sale or such capital contribution (to the extent so
used for such Restricted Payment) shall be excluded
from the calculation of the amounts under clause (2) of the previous
paragraph; (v) payments or distributions, to dissenting stockholders pursuant
to applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets that complies with Article Five; (vi) Investments in
Unrestricted Subsidiaries not to exceed, at any one time outstanding, $5
million; or (vii) Investments acquired in exchange for Capital Stock (other
than Disqualified Stock) of the Company or with the Net Cash Proceeds of such
Capital Stock; provided that such proceeds are so applied within 90 days of
receipt thereof; provided that the Net Cash Proceeds from such sale or such
capital contribution (to the extent so used for such Restricted Payment) shall
be excluded from the calculation of the amounts under clause (2) of the
previous paragraph; (viii) the payment of cash to (A) the holders of warrants
issued pursuant to the Plan upon exercise of such warrants and (B) the holders
of Securities or the Series B Notes upon conversion of the Securities or the
Series B Notes, in each case in lieu of fractional shares of the Company’s
Common Stock and (ix) other Restricted Payments in an aggregate amount not to
exceed $10 million; provided that, except in the case of clause (i), no Default
or Event of Default shall have occurred and be continuing or occur as a
consequence of the actions or payments set forth therein. The value of any
Restricted Payment made other than in cash shall be the fair market value
thereof. The amount of any Investment “outstanding” at any time shall be
deemed to be equal to the amount of such Investment on the date made, less the
return of capital to the Company and its Restricted Subsidiaries with respect
to such Investment (up to the amount of such Investment).


     Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof, an
exchange of Capital Stock for Capital Stock or Indebtedness referred to in
clause (iv) thereof and an Investment referred to in clause (vi) thereof), and
the Net Cash Proceeds from any capital contribution or any issuance of Capital
Stock referred to in clauses (iv) and (vii), shall be included in calculating
whether the conditions of clause (C) of the first paragraph of this Section
4.04 have been met with respect to any subsequent Restricted Payments. If the
proceeds of an issuance of Capital Stock of the Company are used for the
redemption, repurchase or other acquisition of the Securities, or Indebtedness
that is pari passu with the Securities, then the Net Cash Proceeds of such
issuance shall be included in clause (C) of the first paragraph of this Section
4.04 only to the extent such proceeds are not used for such redemption,
repurchase or other acquisition of Indebtedness. For purposes of determining
compliance with this Section 4.04, in the event that a Restricted Payment meets
the criteria of more than one of the types of Restricted Payments described in
clauses (i) through (x) of the preceding paragraph, the Company, in its sole
discretion, shall classify such Restricted Payment and only be required to
include the amount and type of such Restricted Payment in one of such clauses.



SECTION 4.05.      Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Company will not, and will not permit
any Restricted Subsidiary to,


45






 


create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary (other than the Guarantor) to (i) pay
dividends or make any other distributions permitted by applicable law on any
Capital Stock of such Restricted Subsidiary owned by the Company or any other
Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any
other Restricted Subsidiary, make loans or
advances to the Company or any other Restricted Subsidiary or (iv)
transfer any of its property or assets to the Company or any other Restricted
Subsidiary.


     The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Closing Date (including the Nortel Financing
Agreements) or any other agreements in effect on the Closing Date, and any
extensions, refinancings, renewals or replacements of such agreements; provided
that the encumbrances and restrictions in any such extensions, refinancings,
renewals or replacements are no less favorable in any material respect to the
Holders than those encumbrances or restrictions that are then in effect and
that are being extended, refinanced, renewed or replaced; (ii) existing under
or by reason of applicable law; (iii) existing with respect to any Person or
the property or assets of such Person acquired by the Company or any Restricted
Subsidiary, existing at the time of such acquisition and not incurred in
contemplation thereof, which encumbrances or restrictions are not applicable to
any Person or the property or assets of any Person other than such Person or
the property or assets of such Person so acquired; (iv) in the case of clause
(iv) of the first paragraph of this Section 4.05, (A) that restrict in a
customary manner the subletting, assignment or transfer of any property or
asset that is a lease, license, conveyance or contract or similar property or
asset, (B) existing by virtue of any transfer of, agreement to transfer, option
or right with respect to, or Lien on, any property or assets of the Company or
any Restricted Subsidiary not otherwise prohibited by this Indenture or (C)
arising or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary in
any manner material to the Company or any Restricted Subsidiary (v) with
respect to a Restricted Subsidiary and imposed pursuant to an agreement that
has been entered into for the sale or disposition of all or substantially all
of the Capital Stock of, or property and assets of, such Restricted Subsidiary
during the period between the execution of such agreement and the closing
thereunder; or (vi) contained in the terms of any Indebtedness or any agreement
pursuant to which such Indebtedness was issued if (A) the encumbrance or
restriction applies only in the event of a payment default or a default with
respect to a financial covenant contained in such Indebtedness or agreement,
(B) the encumbrance or restriction is not more disadvantageous to the Holders
of the Securities than is customary in comparable financings (as determined in
good faith by the Board of Directors) and (C) the Board of Directors determines
that any such encumbrance or restriction will not adversely affect the
Company’s financial ability to make principal or interest payments on the
Securities when due. Nothing contained in this Section 4.05 shall prevent the
Company or any Restricted Subsidiary from (1) creating, incurring, assuming or
suffering to exist any Liens otherwise permitted in Section 4.09 or (2)
restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure, in a manner permitted by
this Indenture, Indebtedness of the Company or any of its Restricted
Subsidiaries.



SECTION 4.06.      Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries. The Company will not sell, and will not permit any
Restricted Subsidiary, directly



46









 



or indirectly, to issue or sell, any shares of Capital Stock of a
Restricted Subsidiary (including options, warrants or other rights to purchase
shares of such Capital Stock) except (i) to the Company or a Wholly-Owned
Restricted Subsidiary; (ii) issuances of director’s qualifying shares or sales
to foreign nationals of shares of Capital Stock of foreign Restricted
Subsidiaries, to the extent required by applicable law; (iii) if, immediately
after giving effect to such issuance or sale, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary and any Investment in such Person
remaining after giving effect to such issuance or sale would have been
permitted to be made under Section 4.04 if made on the date of such issuance or
sale; (iv) the sale of Common Stock of Restricted Subsidiaries that is not
Disqualified Stock, if the proceeds of such issuance or sale are applied in
accordance with clause (A) or (B) of the first paragraph of Section 4.11 or (v)
the transfer of up to 3% of the Common Stock of ConeXia S.A. to employees of
ConeXia S.A. in connection with such employment.



SECTION 4.07.      Limitation on Issuances of Guarantees by Restricted
Subsidiaries. The Company will not permit any Restricted Subsidiary, directly
or indirectly, to Guarantee any Indebtedness of the Company or the Guarantor
(“Guaranteed Indebtedness”), unless (i) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
(x) for a Guarantee (a “Subsidiary Guarantee”) on the terms contained in
Article Eleven of this Indenture, mutatis mutandis, of payment of the
Securities by such Restricted Subsidiary and (y) that, upon such execution and
delivery, such Restricted Subsidiary shall, with respect to such Subsidiary
Guarantee, be subject to all of the obligations of, and deemed to be for all
purposes, a Guarantor under this Indenture (and such Subsidiary Guarantee shall
be deemed to be a Security Guarantee for all purposes under this Indenture)
with the same effect as if such Restricted Subsidiary had been named as a
Guarantor in this Indenture, (ii) such supplemental indenture is accompanied by
an opinion of counsel to the effect that the supplemental indenture has been duly authorized, executed and delivered by
such Restricted Subsidiary, is enforceable against such Restricted Subsidiary
(subject to customary exceptions) and is in compliance in all material respects
with the terms of this Indenture and (iii) such Restricted Subsidiary waives
and will not in any manner whatsoever claim or take the benefit or advantage
of, any rights of reimbursement, indemnity or subrogation or any other rights
against the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Subsidiary Guarantee; provided
that this paragraph shall not be applicable to any Guarantee of any Restricted
Subsidiary that is permitted as Acquired Indebtedness under Section 4.03 of
this Indenture and existed at the time such Person became a Restricted
Subsidiary and was not Incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary. If the Guaranteed Indebtedness
is (A) pari passu with the Securities or the Security Guarantee, then the
Guarantee of such Guaranteed Indebtedness shall be pari passu with, or
subordinated to, the Security Guarantee or (B) subordinated to the Securities
or the Security Guarantee, then the Guarantee of such Guaranteed Indebtedness
shall be subordinated to the Security Guarantee at least to the extent that the
Guaranteed Indebtedness is subordinated to the Securities or the Security
Guarantee, as the case may be.


     Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted
Subsidiary may provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the
Company’s and each Restricted Subsidiary’s Capital Stock in, or all or
substantially all the


47






 


assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the release
or discharge of the Guarantee that resulted in the creation of such Subsidiary
Guarantee, except a discharge or release by or as a result of payment under
such Guarantee.



SECTION 4.08.      Limitation on Transactions with Stockholders and Affiliates.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, renew or extend any transaction (including,
without limitation, the purchase, sale, lease or exchange of property or
assets, or the rendering of any service) with any holder (or any Affiliate of
such holder) of 5% or more of any class of Capital Stock of the Company or with
any Affiliate of the Company or any Restricted Subsidiary, unless (A) the
transaction is upon fair and reasonable terms no less favorable to the Company
or such Restricted Subsidiary than could be obtained, at the time of such
transaction or, if such transaction is pursuant to a written agreement, at the
time of the execution of the agreement providing therefor, in a comparable
arm’s-length transaction with a Person that is not such a holder or an
Affiliate; and (b) the Company delivers to the Trustee (1) with respect to any
such transaction or series of related transactions involving aggregate
consideration in excess of $1.0 million, a resolution of the Board of Directors
set forth in an Officers’ Certificate certifying that such transaction complies
with this covenant and that such transaction has been approved by a majority of
the disinterested members of the Board of Directors; and (2) with respect to
any such transaction or series of related transactions involving aggregate
consideration in excess of $20.0 million, an opinion as to the fairness to the
Company or such Subsidiary of the financial terms of such transaction from a
financial point of view issued by an accounting, appraisal or investment
banking firm of national standing.


     The foregoing limitation does not limit, and shall not apply to (i) any
transaction solely between the Company and any of its Wholly-Owned Restricted
Subsidiaries or solely between Wholly-Owned Restricted Subsidiaries; (ii) the
payment of reasonable and customary regular fees to directors of the Company
who are not employees of the Company; (iii) any payments or other transactions
pursuant to any tax-sharing agreement between the Company and any other Person
with which the Company files a consolidated tax return or with which the
Company is part of a consolidated group for tax purposes; or (iv) any
Restricted Payments not prohibited by Section 4.04.



SECTION 4.09.      Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Lien on any of its assets or properties of any character (including,
without limitation, licenses), or any shares of Capital Stock or Indebtedness
of any Restricted Subsidiary, without making effective provision for all of the
Securities and all other amounts due under this Indenture to be directly
secured equally and ratably with (or, if the obligation or liability to be
secured by such Lien is subordinated in right of payment to the Securities,
prior to) the obligation or liability secured by such Lien.


     The foregoing limitation does not apply to (i) Liens existing on the
Closing Date; (ii) Liens granted after the Closing Date on any assets or
Capital Stock of the Company or its Restricted Subsidiaries created in favor of
the Holders and the holders of the Series B Notes on an equal basis between the
Securities and the Series B Notes; (iii) Liens with respect to the assets of a
Restricted Subsidiary granted by such Restricted Subsidiary to the Company or a
Wholly-


48






 


Owned Restricted Subsidiary to secure Indebtedness owing to the Company
or such other Restricted Subsidiary; (iv) Liens securing Indebtedness that is
Incurred to refinance secured Indebtedness permitted to be Incurred under
clause (iii) of the second paragraph of Section 4.03; provided that such Liens
do not extend to or cover any property or assets of the Company or any
Restricted Subsidiary other than the property or assets securing the
Indebtedness being refinanced; (v) Permitted Liens.



SECTION 4.10.      Limitation on Sale-Leaseback Transactions. The Company will
not, and will not permit any Restricted Subsidiary to, enter into any
sale-leaseback transaction involving any of its assets or properties whether
now owned or hereafter acquired, whereby the Company or a Restricted Subsidiary
sells or transfers such assets or properties and then or thereafter leases such
assets or properties or any part thereof or any other assets or properties that
the Company or such Restricted Subsidiary, as the case may be, intends to use
for substantially the same purpose or purposes as the assets or properties sold
or transferred, unless:



	 	(1)	 	the Company or that Restricted Subsidiary, as applicable,
could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction
permitted under the caption “Limitation on Indebtedness” and (b)
incurred a Lien to secure such Indebtedness pursuant to the covenant
described above under the caption “Limitation on Liens;”
	 
	 	(2)	 	the gross cash proceeds of that sale and leaseback transaction
are at least equal to the fair market value (in the case of gross
cash proceeds in excess of $5.0 million as determined in good faith
by the Board of Directors and set forth in an Officers’ Certificate
delivered to the Trustee), of the property that is the subject of
that sale and leaseback transaction; and
	 
	 	(3)	 	the transfer of assets in that sale and leaseback transaction
is permitted by, and the Company applies the proceeds of such
transaction in compliance with, the covenant described above under
the caption “Limitation on Asset Sales.”



     The foregoing restriction does not apply to any sale-leaseback transaction
if the transaction is solely between the Company and any Wholly-Owned
Restricted Subsidiary or solely between Wholly-Owned Restricted Subsidiaries.



SECTION 4.11.      Limitation on Asset Sales. The Company will not, and will
not permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i)
the consideration received by the Company or such Restricted Subsidiary is at
least equal to the fair market value of the assets sold or disposed of and (ii)
at least 85% of the consideration received consists of cash or Temporary Cash
Investments. Within 365 days after the receipt of any Net Cash Proceeds from
any Asset Sale, the Company shall or shall cause the relevant Restricted
Subsidiary to (i) (A) apply an amount equal to the Net Cash Proceeds to
permanently repay unsubordinated Indebtedness of the Company, the Guarantor or
of any other Restricted Subsidiary, in each case owing to a Person other than
the Company or any of its Restricted Subsidiaries or (B) invest an equal
amount, or the amount not so applied pursuant to clause (A) (or enter into a
definitive agreement committing to so invest within 12 months after the date of
such agreement), in property or assets (other than


49






 


current assets) of a nature
or type or that are used in a business (or in a company having property and
assets of a nature or type, or engaged in a business) similar or related to the
nature or type of the property and assets of, or the business of, the Company
and its Restricted Subsidiaries existing on the date of such investment (as
determined in good faith by the Board of Directors, whose determination shall
be conclusive and evidenced by a Board Resolution) and (ii) apply (no later
than the end of the 365-day period referred to in clause (i)) the Net Cash
Proceeds (to the extent not applied pursuant to clause (i)) as provided in the
following paragraph of this Section 4.11. The amount of the Net Cash Proceeds
required to be applied (or to be committed to be applied) during such 12-month
period as set forth in clause (i) of the preceding sentence and not applied as
so required by the end of such period shall constitute “Excess Proceeds.”


     If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to
this Section 4.11 totals at least $10 million, the Company must commence, not
later than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Securities equal to the Excess Proceeds on such date, at a purchase price equal
to 101% of the Claimed Amount (in effect as of the Payment Date) of the
Securities, plus accrued interest (if any) to the Payment Date.



SECTION 4.12.      Repurchase of Securities upon a Change of Control. Unless
waived in writing by Holders of two-thirds in principal amount of the
Securities then outstanding, the Company must commence, within 30 days of the
occurrence of a Change of Control, and consummate an Offer to Purchase for all
Securities then outstanding, at a purchase price equal to 101% of the Claimed
Amount of the Securities on the relevant Payment Date (the “Change of Control
Redemption Price”), plus accrued interest (if any) to the Payment Date. Prior
to the mailing of the notice to Holders commencing such Offer to Purchase, but
in any event within 30 days following any Change of Control, the Company
covenants to (i) repay in full all indebtedness of the Company that would
prohibit the repurchase of the Securities pursuant to such Offer to Purchase or
(ii) obtain any requisite consents under instruments governing any such
indebtedness of the Company to permit the repurchase of the Securities. The
Company shall first comply with the covenant in the preceding sentence before
it shall be required to repurchase Securities pursuant to this Section 4.12.



SECTION 4.13.      Existence. Subject to Articles Four and Five of this
Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each such Subsidiary and the rights
(whether pursuant to charter, partnership certificate, agreement, statute or
otherwise), material licenses and franchises of the Company and each such
Subsidiary; provided that the Company shall not be required to preserve any
such right, license or franchise, or the existence of any Restricted Subsidiary
(other than itself and each Guarantor), if the maintenance or preservation
thereof is no longer desirable in the conduct of the business of the Company
and its Restricted Subsidiaries taken as a whole.



SECTION 4.14.      Payment of Taxes and Other Claims. The Company shall pay or
discharge and shall cause each of its Subsidiaries to pay or discharge, or cause to be paid or discharged,


50






 


before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the Company or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Company or any
such Subsidiary and (ii) all material lawful claims for labor, materials and
supplies that, if unpaid, might by law become a Lien upon the property of the
Company or any such Subsidiary; provided that the Company shall not be required
to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge or claim the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
reserves have been established.



SECTION 4.15.      Maintenance of Properties and Insurance. The Company shall
cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries, to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times; provided that nothing in this Section 4.15 shall prevent the Company or
any such Restricted Subsidiary from discontinuing the use, operation or
maintenance of any of such properties or disposing on any of them, if such
discontinuance or disposal is, in the judgment of the Company, desirable in the
conduct of the business of the Company or such Restricted Subsidiary.


     The Company shall provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency
or instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or such Restricted Subsidiary, as the case may
be, is then conducting business.



SECTION 4.16.      Notice of Default. In the event that the Company or any
Restricted Subsidiary becomes aware of any Default or Event of Default, the
Company or the Guarantor promptly after it becomes aware thereof, shall give
written notice thereof to the Trustee.



SECTION 4.17.      Compliance Certificates. The Company shall deliver to
the Trustee, within 90 days after the end of the Company’s fiscal year, an
Officers’ Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal year. Such certificates
shall contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of the Company that a review
has been conducted of the activities of the Company and the Restricted
Subsidiaries and the Company’s and the Restricted Subsidiaries’ performance
under this Indenture and that, to the best knowledge of such officer, the
Company has complied with all conditions and covenants under this Indenture.
For purposes of this Section 4.17, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture. If any such officer knows of


51






 


such a Default or Event of Default,
the certificate shall describe any such Default or Event of Default and its
status.


          (b)     The Company shall deliver to the Trustee, within 90 days after the end
of its fiscal year, a certificate signed by the Company’s independent certified
public accountants stating (i) that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters, (ii) that they have read the most recent Officers’
Certificate delivered to the Trustee pursuant to paragraph (a) of this Section
4.17 and (iii) whether, in connection with their audit examination, anything
came to their attention that caused them to believe that the Company was not in
compliance with any of the terms, covenants, provisions or conditions of
Article Four and Section 5.01 of this Indenture as they pertain to accounting
matters and, if any Default or Event of Default has come to their attention,
specifying the nature and period of existence thereof; provided that such
independent certified public accountants shall not be liable in respect of such statement by reason of
any failure to obtain knowledge of any such Default or Event of Default that
would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards in effect at the date of
such examination.



          (c)     Within 90 days of the end of each of the Company’s fiscal years, the
Company shall deliver to the Trustee a list of all Significant Subsidiaries.
The Trustee shall have no duty with respect to any such list except to keep it
on file and available for inspection by the Holders.




SECTION 4.18.      Commission Reports and Reports to Holders. Whether or not
the Company is required to file reports with the Commission, if any Securities
are outstanding, the Company shall file with the Commission all such reports
and other information as it would be required to file with the Commission by
Sections 13(a) or 15(d) under the Exchange Act if it were subject thereto,
unless the Company shall be unable to effect such filing or the Commission
shall refuse to accept such filing. The Company shall supply the Trustee and
each Holder of Securities or shall supply to the Trustee for forwarding to each
such Holder, without cost to such Holder, copies of such reports and other
information, whether or not the Company shall be unable to effect such filing
or the Commission refuses to accept such filing.



SECTION 4.19.      Waiver of Stay, Extension or Usury Laws. Each of the
Company and the Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company or the
Guarantor, as the case may be, from paying all or any portion of the principal
of, premium, if any, or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Guarantor hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as if no such law had
been enacted.


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SECTION 4.20.      Additional Amounts. Any payments made by the Guarantor
under or with respect to the Securities pursuant to the Security Guarantee will
be made free and clear of and without withholding or deduction for or on
account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the Government of the
Republic of Argentina or of any subdivision, province or territory thereof or
by any authority or agency therein or thereof having power to tax (hereinafter
“Taxes”), unless the Guarantor is required to withhold or deduct Taxes by law
or by the interpretation or administration thereof. If the Guarantor is
required to withhold or deduct any amount for or on account of Taxes from any
payment made under or with respect to the Security Guarantee, the Guarantor
will, on or prior to the due date for the payment thereof, pay any such
Taxes to the appropriate governmental authority, and will pay such
additional amounts (“Additional Amounts”) as may be necessary, so that the net
amount received by each Holder of Securities (including Additional Amounts)
after such withholding or deduction will not be less than the amount such
Holder would have received if such Taxes had not been withheld or deducted;
provided that no Additional Amounts will be payable with respect to a payment
made to a Holder (an “Excluded Holder”) (i) who is liable for taxes or duties
in respect of such Security by reason of its having some connection with
Argentina other than the mere holding of such Security or the receipt of
principal or interest in respect thereof; (ii) in respect of any estate,
inheritance, gift, sales, transfer or personal property tax or any similar tax,
assessment or governmental charge; or (iii) in respect of any tax, assessment
or other governmental charge which would not have been imposed but for any
failure to comply with certification, information or other report requirements
concerning the nationality, residence or identity of the Holder or beneficial
owner of such Security, if such compliance is required by statute or by
regulation of Argentina or of any political subdivision or taxing authority
thereof or therein as a precondition to relief or exemption from such tax,
assessment or other governmental charge. The Guarantor will, upon written
request of any Holder (other than an Excluded Holder), reimburse such Holder
for the amount of (i) any Taxes so levied or imposed and paid by such Holder as
a result of payments made under or with respect to the Securities and (ii) any
Taxes so levied or imposed with respect to any reimbursement under the
foregoing clause (i), but excluding any such Taxes on such Holder’s net income
so that the net amount received by such Holder after such reimbursement will
not be less than the net amount the Holder would have received if Taxes on such
reimbursement had not been imposed.


     At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Guarantor will be
obligated to pay Additional Amounts with respect to such payment, the Guarantor
will deliver to the relevant Trustee and Paying Agents an Officers’ Certificate
stating the amount of Taxes required to be deducted or withheld and certifying
that the Guarantor shall make such deduction or withholding and pay such Taxes
and stating the fact that such Additional Amounts will be payable and the
amounts so payable and will set forth such other information necessary to
enable the Trustee to pay such Additional Amounts to Holders on the payment
date. The Trustee and each Paying Agent shall be fully protected in relying
upon any Officers’ Certificates furnished pursuant to this paragraph or upon
the failure of the Guarantor to furnish any such Officers’ Certificate.
Whenever either in this Indenture or in the Securities there is mentioned, in
any context, the payment of principal (or premium, if any), Redemption Price,
interest or any other amount payable under or with respect


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to any Security,
such mention shall be deemed to include mention of the payment of Additional
Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.



SECTION 4.21.      Books and Records. The Company shall keep proper books of
records and account in which full, true and correct entries in conformity with
GAAP and all applicable laws shall be made of all dealings and transactions in
relation to its businesses and activities.



ARTICLE FIVE

SUCCESSOR CORPORATION; CLAIMED AMOUNTS




SECTION 5.01.      When Company and the Guarantor May Merge, Etc. Each of the
Company and the Guarantor shall not consolidate with, merge with or into, or
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person (other than a
consolidation or merger with or into a Wholly-Owned Restricted Subsidiary with
a positive net worth (after giving effect to such consolidation or merger);
provided that, in connection with any such merger or consolidation, no
consideration (other than Common Stock in the surviving Person, the Company or
the Guarantor, as the case may be) shall be issued or distributed to the
stockholders of the Company or the Guarantor, as the case may be) or permit any
Person to merge with or into the Company or the Guarantor unless: (i) the
Company or the Guarantor shall be the continuing Person, or the Person (if
other than the Company or the Guarantor) formed by such consolidation or into
which the Company or the Guarantor, as the case may be, is merged or that
acquired or leased such property and assets of the Company or the Guarantor, as
the case may be, shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction thereof (or, in
the case of a consolidation, merger or sale, conveyance, transfer, lease or
other disposition of all or substantially all of the property or assets of the
Guarantor, the country of organization of the Guarantor immediately prior to
such consolidation, merger, sale, conveyance transfer or lease) and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company or the Guarantor, as the case
may be, on all of the Securities and hereunder; (ii) immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing; (iii) immediately after giving effect to such transaction on
a pro forma basis, the Company or the Guarantor, as the case may be, or any
Person becoming the successor obligor of the Securities shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Company or the Guarantor, as the case may be, immediately prior to such
transaction; (iv) immediately after giving effect to such transaction on a pro
forma basis the Company, or any Person becoming the successor obligor to the
Company of the Securities, as the case may be, could Incur at least $1.00 of
Indebtedness under the first paragraph of Section 4.03; provided that this
clause (iv) shall not apply to a consolidation, merger or sale of all or
substantially all of the assets of the Company if immediately after giving
effect to such transaction on a pro forma basis, the Company or any Person
becoming the successor obligor of the Securities shall have Consolidated Net
Worth in an amount equal to or greater than the Consolidated Net Worth of the
Company immediately prior to such transaction and such transaction shall have
been approved by the affirmative vote of two-thirds of the Company’s Board of
Directors; and (v) the Company or the Guarantor, as the case


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may be, delivers
to the Trustee an Officers’ Certificate (attaching the arithmetic computations
to demonstrate compliance with clauses (iii) and (iv) above) and Opinion of
Counsel, in each case stating that such consolidation, merger or transfer and
such supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction have been
complied with; provided that clauses (iii) and (iv) above do not apply if, in
the good faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose
of such transaction is to change the state of incorporation of the Company; and
provided further that any such transaction shall not have as one of its
purposes the evasion of the foregoing limitations.



SECTION 5.02.      Successor Substituted. Upon any consolidation or merger, or
any sale, conveyance, transfer or other disposition of all or substantially all
of the property and assets of the Company or the Guarantor in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company or the Guarantor is merged or to which
such sale, conveyance, transfer or other disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or the Guarantor, as the case may be, under this Indenture with the same effect
as if such successor Person had been named as the Company or the Guarantor, as
the case may be, herein; provided that the Company or the Guarantor, as the
case may be, shall not be released from its obligations to pay the principal
of, premium, if any, or interest on the Securities in the case of a lease of
all or substantially all of its property and assets.



SECTION 5.03.      Definition of Claimed Amount. For purposes of this
Indenture, the “Claimed Amount” corresponding to any applicable date shall be
the applicable Claimed Amount specified in the following table:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Second
	 	 	 	 	 	 	Sixth Month	 	First	 	18th Month	 	Anniversary of
	 	 	 	 	 	 	Anniversary	 	Anniversary	 	Anniversary	 	the Closing Date
	 	 	 	 	 	 	of the	 	of the	 	of the	 	and thereafter
	 	 	Closing	 	Closing	 	Closing	 	Closing	 	until Final
	 	 	Date	 	Date	 	Date	 	Date	 	Maturity
	 	 	
	 	
	 	
	 	
	 	

	Claimed Amount
(as % of face
principal amount of
the Security)
	 	 	88.85	%	 	 	91.51	%	 	 	94.26	%	 	 	97.09	%	 	 	100.00	%



     In the event that a determination of the Claimed Amount is to be made for
a day between any of the dates specified in the table above (but prior to the
second anniversary of the Closing Date), the Claimed Amount shall be calculated
on the basis of the increase in the Claimed Amount between such dates based a
period of 180 days.



ARTICLE SIX

DEFAULT AND REMEDIES



SECTION 6.01.      Events of Default. Any of the following events shall
constitute an Event of Default:


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          (a)     default in the payment of principal of (or premium, if any, on) any
Security, including the Change of Control Redemption Price, when the same
becomes due and payable at maturity, upon acceleration, redemption or
otherwise;



          (b)     default in the payment of interest on any Security when the same
becomes due and payable, and such default continues for a period of 30 days;



          (c)     the Company or the Guarantor defaults in the performance of or
breaches any other covenant or agreement in this Indenture, the Registration
Rights Agreement or under the Securities and such default or breach continues
for a period of 30 consecutive days after written notice by the Trustee or the
Holders of 25% or more in aggregate principal amount of the Securities;



          (d)     there occurs with respect to any issue or issues of Indebtedness of
the Company, the Guarantor or any Significant Subsidiary having an outstanding
principal amount of $5 million or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness now exists or shall hereafter be
created, (I) an event of default that has caused the holder thereof to declare
such Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has not been
rescinded or annulled within 30 days of such acceleration and/or (II) the
failure to make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made, waived or
extended within 30 days of such payment default; provided that any such event
of default or failure to make a payment, in each case, with respect to any
Indebtedness existing as of the Closing Date in respect of which the holders
thereof did not vote affirmatively to accept the Plan, shall not be deemed to
be an Event of Default;



          (e)     any final judgment or order (not covered by insurance) for the payment
of money in excess of $5 million in the aggregate for all such final judgments
or orders against all such Persons (treating any deductibles, self-insurance or
retention as not so covered) shall be rendered against the Company, the
Guarantor or any Significant Subsidiary and shall not be paid or discharged,
and either (A) an enforcement proceeding shall have been commenced by a
creditor upon such judgment or order or (B) there shall be any period of 30
consecutive days following entry of the final judgment or order that causes the
aggregate amount for all such final judgments or orders outstanding and not
paid or discharged against all such Persons to exceed $5 million during which a
stay of enforcement of such final judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided that the occurrence of
any such actions that relate to or arise out of any Indebtedness existing as of
the Closing Date in respect of which the holders thereof did not vote
affirmatively to accept the Plan shall not be deemed to be an Event of Default;



          (f)     a court having jurisdiction in the premises enters a decree or order
for (A) relief in respect of the Company, the Guarantor or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company, the Guarantor or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company, the Guarantor or
any



56






 





Significant Subsidiary or (C) the winding up or liquidation of the affairs
of the Company, the Guarantor or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period of 30
consecutive days; provided that the issuance of any such decree or order with
respect to the Guarantor or any Significant Subsidiary (the entry of which was
not consented to by the Company, the Guarantor or any Significant Subsidiary)
at the request of the holder of any Indebtedness existing as of the Closing
Date in respect of which such holder did not vote affirmatively to accept the
Plan shall not be deemed to be an Event of Default;


          (g)     the Company, the Guarantor or any Significant Subsidiary (A) commences
a voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, the Guarantor or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company, the Guarantor or any Significant Subsidiary or (C)
effects any general assignment for the benefit of creditors; provided that the
occurrence of any such event with respect to the Guarantor, in each case
between the Closing Date and September 25, 2003, shall not be deemed to be an
Event of Default;



          (h)     the Security Guarantee or any Subsidiary Guarantee by a Restricted
Subsidiary shall cease to be, or shall be asserted in writing by the Company,
the Guarantor or such Restricted Subsidiary not to be, in full force and effect
or enforceable in accordance with its terms.




SECTION 6.02.      Acceleration. If an Event of Default (other than an Event
of Default specified in clause (f) or (g) of Section 6.01 that occurs with
respect to the Company) occurs and is continuing under this Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Securities, then outstanding, by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and
accrued interest on the Securities to be immediately due and payable. Upon a
declaration of acceleration, such principal of (which shall be deemed to equal
the then applicable Claimed Amount), premium, if any, and accrued interest
shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (d) of Section
6.01 has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (d) of Section 6.01 shall be remedied or
cured by the Company, the Guarantor or the relevant Significant Subsidiary or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto, and no other Defaults under
this Indenture have occurred and are continuing after giving pro forma effect
to such remedy, cure or waiver. If an Event of Default specified in clause (f)
or (g) of Section 6.01 occurs with respect to the Company, the principal (which
shall be deemed to equal the then applicable Claimed Amount) of, premium, if
any, and accrued interest on the Securities then outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.


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     At any time after such declaration of acceleration, but before a judgment
or decree for the payment of the money due has been obtained by the Trustee,
the Holders of at least a majority in principal amount of the outstanding
Securities, by written notice to the Company and to the Trustee, may waive all
past Defaults and rescind and annul a declaration of acceleration and its
consequences if (a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, (ii) all overdue
interest on all Securities, (iii) the principal (which shall be deemed to
equal the then applicable Claimed Amount) of and premium, if any, on any
Securities that have become due otherwise than by such declaration or
occurrence of acceleration and interest thereon at the rate prescribed therefor
by such Securities, and (iv) to the extent that payment of such interest is
lawful, interest upon overdue interest, if any, at the rate prescribed therefor
by such Securities, (b) all existing Events of Default, other than the
non-payment of the principal (which shall be deemed to equal the then
applicable Claimed Amount) of, premium, if any, and accrued interest on the
Securities that have become due solely by such declaration of acceleration have
been cured or waived as provided in Section 6.04 and (c) the rescission would
not conflict with any judgment or decree of a court of competent jurisdiction.



SECTION 6.03.      Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal (which shall be deemed to equal
the then applicable Claimed Amount) of, premium, if any, or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.


     The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding.



SECTION 6.04.      Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and
10.02, the Holders of at least a majority in principal amount of the
outstanding Securities, by notice to the Trustee, may waive all existing
Defaults and Events of Default and its consequences, except a Default in the
payment of principal of, premium, if any, or interest on any Security as
specified in clause (a) or (b) of Section 6.01 or in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected. 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 Event of Default or impair any right consequent thereto.



SECTION 6.05.      Control by Majority. The Holders of at least a majority in
aggregate principal amount of the outstanding Securities may, subject to
Section 7.02(iv), direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders of Securities not joining in the
giving of such direction and may take any other


58






 


action it deems proper that is
not inconsistent with any direction received from Holders of Securities
pursuant to this Section 6.05.



SECTION 6.06.      Limitation on Suits. A Holder may not pursue any remedy with respect to this Indenture or the
Securities unless:


               (i)
     the Holder gives the Trustee written notice of a continuing Event of
Default;



               (ii)     the Holders of at least 25% in aggregate principal amount of
outstanding Securities make a written request to the Trustee to pursue the
remedy;



               (iii)    such Holder or Holders offer the Trustee indemnity satisfactory to
the Trustee against any costs, liabilities or expenses which may be incurred in
compliance with such request;



               (iv)     the Trustee does not comply with the request within 60 days after
receipt of the written request and the offer of indemnity; and



               (v)
     during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities do not give the Trustee a
direction that is inconsistent with the request.



     For purposes of Section 6.05 and this Section 6.06, the Trustee shall
comply with TIA Section 316(a) in making any determination of whether the
Holders of the required aggregate principal amount of outstanding Securities
have concurred in any request or direction of the Trustee to pursue any remedy
available to the Trustee or the Holders with respect to this Indenture or the
Securities or otherwise under the law.


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



SECTION 6.07.      Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of the principal of, premium, if any, or interest on such
Security, or to bring suit for the enforcement of any such payment, on or after
the due date expressed in such Security, shall not be impaired or affected
without the consent of such Holder.



SECTION 6.08.      Collection Suit by Trustee. If an Event of Default in
payment of principal, premium or interest specified in clause (a) or (b) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor of the Securities for the whole amount of principal, premium, if any,
and accrued interest remaining unpaid, together with interest on overdue
principal, premium, if any, and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the rate
specified in the Securities, 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.


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SECTION 6.09.      Trustee May File Proofs of Claim. The Trustee may 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 any other amounts due the Trustee under Section
7.07) and the Holders allowed in any judicial proceedings relative to the
Company (or any other obligor of the Securities), its creditors or its property
and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon redemption, conversion
or exchange of the Securities or upon any such claims and to distribute the
same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and counsel, and
any other amounts due the Trustee under Section 7.07. Nothing herein contained
shall be deemed to empower 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 Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.



SECTION 6.10.      Priorities. If the Trustee collects any money pursuant to
this Article Six, it shall pay out the money in the following order:



		
	 	     First: to the Trustee for all amounts due under Section 7.07;
	 
	 	     Second: to the Holders for amounts then due and unpaid for
principal (which shall be deemed to equal the then applicable Claimed
Amount) of, premium, if any, and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (which shall be deemed to
equal the then applicable Claimed Amount), premium, if any, and interest,
respectively; and
	 
	 	     Third: to the Company or any other obligors of the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.



            The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.


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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 Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and
the court 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
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the outstanding Securities.



SECTION 6.12.      Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Company, Trustee and the Holders shall continue as if no such
proceeding had been instituted.



SECTION 6.13.      Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.09, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.



SECTION 6.14.      Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article Six or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



ARTICLE SEVEN

TRUSTEE AND AGENTS




SECTION 7.01.      General. The duties and responsibilities of the Trustee
shall be as provided by the TIA and as set forth herein. Whether or not herein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article Seven.



SECTION 7.02.      Certain Rights. Subject to TIA Sections 315(a) through (d):


               (i)     the Trustee and each Agent may conclusively rely, and shall be
protected in acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other



61






 





evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee and each Agent
need not investigate any fact or matter stated in the document and may in good
faith conclusively rely as to the truth of the statements and the correctness
of the opinions therein;


               (ii)     before the Trustee or any Agent acts or refrains from acting, it may
consult with counsel and require an Officers’ Certificate or an Opinion of
Counsel or both. The Trustee and each Agent shall not be liable for any action
it takes or omits to take in good faith in reliance on such certificate,
opinion and/or an accountants’ certificate;



               (iii)    the Trustee and each Agent may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any attorney
or agent appointed with due care;



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



               (v)
     the Trustee and each Agent shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance with
the direction of the Holders of a majority in principal amount of the
outstanding Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; provided that the
Trustee’s or such Agent’s conduct, as applicable, does not constitute bad
faith;



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



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



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



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SECTION 7.03.      Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company, the Guarantor or their Affiliates with
the same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to TIA Sections 310(b)
and 311.



SECTION 7.04.      Trustee’s Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the
Securities, (ii) shall not be accountable for the Company’s use or application
of the proceeds from the Securities and (iii) shall not be responsible for any
statement in the Securities other than its certificate of authentication.



SECTION 7.05.      Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to an
officer assigned to administer corporate trust matters of the Trustee, the
Trustee shall mail to each Holder in the manner and to the extent provided in
TIA Section 313(c) notice of the Default or Event of Default within 45 days
after it occurs, unless such Default or Event of Default has been cured or
waived; provided that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Security, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.



SECTION 7.06.      Reports by Trustee to Holders. Within 60 days after each
May 15, beginning with May 15, 2003, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report that complies with TIA Section
313(a) dated as of such May 15, if required by TIA Section 313(a).


     A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the Commission and
each stock exchange on which the Securities are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the
Securities are listed on any stock exchange or of any delisting thereof.



SECTION 7.07.      Compensation and Indemnity. The Company and the Guarantor,
jointly and severally, shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its services. The
compensation of the Trustee shall not be limited by any law on compensation of
a trustee of an express trust. The Company and the Guarantor, jointly and
severally, shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses (including costs of collection)
and advances incurred or made by the Trustee. Such expenses shall include the
reasonable compensation and expenses of the Trustee’s agents and counsel.


     The Company and the Guarantor, jointly and severally, shall indemnify the
Trustee for, and hold it harmless against, any loss or liability or expense
incurred by it without negligence or bad faith on its part in connection with
the acceptance or administration of this Indenture and its duties under this
Indenture and the Securities, including, without limitation, the costs and
expenses of investigating or defending itself against any claim or liability
and of complying with


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any process served upon it or any of its officers in
connection with the exercise or performance of any of its powers or duties
under this Indenture and the Securities.


     To secure the Company’s payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on,
particular Securities.


     If the Trustee incurs expenses or renders services after the occurrence of
an Event of Default specified in clause (f) or (g) of Section 6.01, the
expenses and the compensation for the services will be intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for the relief of debtors.



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


     The Trustee may resign at any time by so notifying the Company in writing
at least 30 days prior to the date of the proposed resignation. The Holders of
a majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company. The Company may at any time remove
the Trustee, by Company Order given at least 30 days prior to the date of the
proposed removal if: (i) the Trustee is no longer eligible under Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a receiver or
other public officer takes charge of the Trustee or its property; or (iv) the
Trustee becomes incapable of acting.


     If the Trustee resigns or is removed, or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If the successor Trustee does not deliver its written acceptance required by
the next succeeding paragraph of this Section 7.08 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.


     A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after the delivery of
such written acceptance, but only provided all sums owing to the Trustee
hereunder have been paid and subject to the lien provided in Section 7.07, (i)
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the retiring Trustee
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder.


     If the Trustee is no longer eligible under Section 7.10 or shall fail to
comply with TIA Section 310(b), any Holder who satisfies the requirements of
TIA Section 310(b) may petition


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any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


     The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.


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



SECTION 7.09.      Successor Trustee by Merger, Etc. If the Trustee or any
Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee or Agent with the same effect as if the successor Trustee
or Agent had been named as the Trustee or Agent herein, provided such
corporation shall be otherwise qualified and eligible under this Article.



SECTION 7.10.      Eligibility.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have a
combined capital and surplus of at least $25 million as set forth in its most
recent published annual report of condition.



SECTION 7.11.      Money
Held in Trust. The Trustee shall 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 and except for money held
in trust under Article Eight of this Indenture.



SECTION 7.12.      Withholding
Taxes. The Trustee, as agent for the Company,
shall exclude and withhold from each payment of principal and interest and
other amounts due hereunder or under the Securities any and all withholding
taxes applicable thereto as required by the federal law of the United States or
the law of the State of New York or any political subdivision thereof (“U.S.
Taxes”). The Trustee agrees to act as such withholding agent and, in
connection therewith, whenever any present or future U.S. Taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Securities, to withhold such amounts and timely pay the same to
the appropriate authority in the name of and on behalf of the holders of the
Securities, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each holder of a Security appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such holders may reasonably request from time to time.



SECTION 7.13.      Beneficial
Ownership Certificate. At the end of the second
and fourth quarters of each calendar year, the Trustee shall mail to each
Holder a certificate in the form of Exhibit B hereto.


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ARTICLE EIGHT

DISCHARGE OF INDENTURE




SECTION 8.01.      Termination of Company’s Obligations. Except as otherwise
provided in this Section 8.01, the Company and the Guarantor each may terminate
its obligations under the Securities and this Indenture if:


               (i)     (1) all Securities previously authenticated and delivered (other than
destroyed, lost or stolen Securities that have been replaced or Securities that
are paid pursuant to Section 4.01 or Securities for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation; or



                         (2) (A) the Securities mature within one year or all of them are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for giving the notice of redemption, (B) the Company or the Guarantor
irrevocably deposits in trust with the Trustee, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds solely for the benefit of the Holders for that purpose, money or
U.S. Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if, any, and
interest on the Securities to maturity or redemption, as the case may be, and
to pay all other sums payable by it hereunder, (C) no Default or Event of
Default with respect to the Securities shall have occurred and be continuing on
the date of such deposit, and (D) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company or the Guarantor is a party or by
which it is bound;



               (ii)     the Company has paid or caused to be paid all sums payable under this
Indenture by the Company; and



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



     With respect to the foregoing clause (i)(1), the Company’s obligations
under Section 7.07 shall survive. With respect to the foregoing clause (i)(2),
the Company’s and the Guarantor’s obligations in Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 4.20, 7.07, 7.08, 8.04, 8.05
and 8.06 and Article Eleven shall survive until the Securities are no longer
outstanding. Thereafter, only the Company’s and the Guarantor’s obligations in
Sections 7.07, 8.05 and 8.06 shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge of
the Company’s and the Guarantor’s obligations under the Securities and this
Indenture except for those surviving obligations specified above.



SECTION 8.02.      Defeasance and Discharge of Indenture. The Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities on the

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123rd day or, to the extent applicable under
clause (B) below, one year after the date of the deposit referred to in clause
(A) of this Section 8.02, and the provisions of this Indenture will no longer
be in effect with respect to the Securities, and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same if:



	 	(A)	 	the Company has irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10) and conveyed all right, title and
interest for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee as trust funds in trust, specifically pledged to the Trustee
for the benefit of the Holders as security for payment of the
principal of, premium, if any, and interest, if any, on the
Securities, and dedicated solely to, the benefit of the Holders, in
and to (1) money in an amount, (2) U.S. Government Obligations that,
through the payment of interest, premium, if any, and principal in
respect thereof in accordance with their terms, will provide, not
later than one day before the due date of any payment referred to in
this clause (A), money in an amount or (3) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment
of all federal, state and local taxes or other charges and assessments
in respect thereof payable by the Trustee, the principal of, premium,
if any, and accrued interest on the outstanding Securities at Final
Maturity of such principal or interest; provided that (1) such
trustee, if any, shall have been irrevocably instructed to pay such
money or the proceeds of such U.S. Government Obligations to the
Trustee, and (2) the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations
to the payment of such principal, premium, if any, and interest with
respect to the Securities;
	 
	 	(B)	 	the Company shall have delivered to the Trustee (i) either (x) an
Opinion of Counsel to the effect that Holders will not recognize
income, gain or loss for United States federal income tax purposes as
a result of the Company’s exercise of its option under this Section
8.02 and will be subject to United States federal income tax on the
same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised, which Opinion of
Counsel must be based upon (and accompanied by a copy of) a ruling of
the United States Internal Revenue Service to the same effect unless
there has been a change in applicable United States federal income tax
law after the Closing Date such that a ruling is no longer required or
(y) a ruling directed to the Trustee received from the United States
Internal Revenue Service to the same effect as the aforementioned
Opinion of Counsel; and (ii) an Opinion of Counsel to the effect that
(x) the creation of the defeasance trust does not violate the
Investment Company Act of 1940 and (y) after the passage of 123 days
following the deposit (except, with respect to any trust funds for
the account of any Holder who may be deemed to be an “insider” for
purposes of the United States Bankruptcy Code, after one year
following the deposit), the trust funds will not be subject to the
effect of Section 547 of the United States Bankruptcy Code or Section
15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company or the



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	 	 	 	Guarantor under either such statute, and
either (I) the trust funds will no longer remain the property of the
Company or the Guarantor (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally) or (II) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company or the Guarantor (a)
assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to the Holders, the
Trustee will hold, for the benefit of the Holders, a valid and
perfected security interest in such trust funds that is not avoidable
in bankruptcy or otherwise (except for the effect of Section 552(b) of
the United States Bankruptcy Code on interest on the trust funds
accruing after the commencement of a case under such statute), (b) the
Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such
case or proceeding and (c) no property, rights in property or other
interests granted to the Trustee or the Holders in exchange for, or
with respect to, such trust funds will be subject to any prior rights
of holders of other Indebtedness of the Guarantor, the Company or any
of its Subsidiaries;
	 
	 	(C)	 	immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or during the period ending on
the 123rd day (or one year) after the date of such deposit, and such
deposit shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound;
	 
	 	(D)	 	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);
	 
	 	(E)	 	the Company has delivered to the Trustee an Officers’ Certificate
stating that the deposit was not made by the Company with the intent
of preferring the holders of Securities over the other creditors of
the Company or any Guarantor with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or such
Guarantor or others;
	 
	 	(F)	 	if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Securities will not be delisted as a
result of such deposit, defeasance and discharge; and
	 
	 	(G)	 	the Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated
by this Section 8.02 have been complied with.



     Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (B)(ii)(y) of this Section 8.02, none of the
Company’s or the Guarantor’s obligations under this Indenture shall be
discharged. Subsequent to the end of such 123-day (or one-year) period with
respect to this Section 8.02, the Company’s and the Guarantor’s

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obligations in
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.11, 2.14, 4.01,
4.02, 4.13. 4.19, 4.20, 7.07, this Article Eight and Article Eleven shall
survive unless otherwise terminated or discharged hereunder until the
Securities are paid in full. Thereafter, only the Company’s obligations in
Sections 7.07, 8.04, 8.05 and 8.06 shall survive.


     After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company’s and the Guarantor’s
obligations under the Securities and this Indenture except for those surviving
obligations in the immediately preceding paragraph.



SECTION 8.03.      Defeasance of Certain Obligations. The Company and the
Guarantor may omit to comply with any term, provision or condition set forth in
clauses (iii) and (iv) of Section 5.01 and Sections 4.03 through 4.12, and
clause (c) of Section 6.01 with respect to clauses (iii) and (iv) of Section
5.01 and clauses (d), (e) and (h) of Section 6.01 shall be deemed not to be
Events of Default, in each case with respect to the outstanding Securities if:


               (i)     the Company has irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as security
for payment of the principal of, premium, if any, and interest, if any, on the
Securities, and dedicated solely to, the benefit of the Holders, in and to (A)
money in an amount, (B) U.S. Government Obligations that, through the payment
of interest and principal in respect thereof in accordance with their terms,
will provide, not later than one day before the due date of any payment
referred to in this clause (i), money in an amount or (C) a combination thereof
in an amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, the principal of, premium, if any, and interest
on the outstanding Securities at Final Maturity; provided that the Trustee
shall have been irrevocably instructed to apply such money or the proceeds of
such U.S. Government Obligations to the payment of such principal, premium, if
any, and interest with respect to the Securities;



               (ii)     such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Guarantor, the Company or any of its Subsidiaries is a party or by
which it is bound;



               (iii)     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);



               (iv)     the Company has delivered to the Trustee an Officers’ Certificate
stating that the deposit was not made by the Company with the intent of
preferring the holders of Securities over the other creditors of the Company or
any Guarantor with the intent of defeating,



69






 





hindering, delaying or defrauding
any other creditors of the Company or such Guarantor or others;


               (v)     the Company has delivered to the Trustee an Opinion of Counsel to the
effect that (A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, (B) the Holders have a valid first-priority
security interest in the trust funds, (C) the Holders will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such deposit and the defeasance of the obligations referred to in the first
paragraph of this Section 8.03 and will be subject to United States federal
income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred, and
(D) after the passage of 123 days following the deposit (except, with respect
to any trust funds for the account of any Holder who may be deemed to be an
“insider” for purposes of the United States Bankruptcy Code, after one year
following the deposit), the trust funds will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law in a case commenced by or against the Company or the
Guarantor under either such statute, and either (1) the trust funds will no
longer remain the property of the Company or the Guarantor (and therefore will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally) or (2) if
a court were to rule under any such law in any case or proceeding that the
trust funds remained the property of the Company or the Guarantor (x) assuming
such trust funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold, for the
benefit of the Holders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise (except for the effect
of Section 552(b) of the United States Bankruptcy Code on interest on the trust
funds accruing after the commencement of a case under such statute), (y) the
Holders will be entitled to receive adequate protection of their interests in
such trust funds if such trust funds are used in such case or proceeding and
(z) no property, rights in property or other interests granted to the Trustee or the Holders in exchange for, or with respect to, such
trust funds will be subject to any prior rights of holders of other
Indebtedness of the Guarantor, the Company or any of its Subsidiaries;



               (vi)     if the Securities are then listed on a national securities exchange,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit and defeasance will not cause the Securities to be
delisted; and



               (vii)     the Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section
8.03 have been complied with.



     Notwithstanding any discharge or release of any obligations under this
Indenture pursuant to this Section 8.03, the Company’s and Guarantor’s
obligations in Sections 2.04, 2.05, 2.06, 2.09, 7.07, 8.04, 8.05 and 8.06 shall
survive until such time as the Securities have been paid in full. Thereafter,
the Company’s and Guarantor’s obligations in Sections 7.07, 8.05 and 8.06 shall
survive.


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SECTION 8.04.      Application
of Trust Money. Subject to Section 8.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Securities and this Indenture to
the payment of principal of, premium, if any, and interest on the Securities;
but such money need not be segregated from other funds except to the extent
required by law.



SECTION 8.05.      Repayment to Company. Anything in this Article Eight to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon the Request by the Company any money or U.S. Government
Obligations held by it as provided in Section 8.02 or Section 8.03 that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent defeasance as set forth in those Sections. The Trustee
and the Paying Agent shall pay to the Company any money held by them for the
payment of principal, premium, if any, or interest that remains unclaimed for
two years; provided that the Trustee or such Paying Agent before being required
to make any payment may cause to be published at the expense of the Company
once in a newspaper of general circulation in the City of New York or mail to
each Holder entitled to such money at such Holder’s address (as set forth in
the Security Register) notice that such money remains unclaimed and that after
a date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
such money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.



SECTION 8.06.      Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 8.01,
8.02 or 8.03, as the case may be, 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
and the Guarantor’s obligations under this Indenture and the Securities shall
be revived and reinstated as if no deposit had occurred pursuant to Section
8.01, 8.02 or 8.03, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be;
provided that, if the Company or the Guarantor has made any payment of
principal of, premium, if any, or interest on any Securities because of the
reinstatement of its obligations, the Company or the Guarantor, as the case may
be, shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.


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SECTION 8.07.      Insiders. With respect to the determination of the Persons
constituting beneficial owners of Securities and whether any such Person is an
“insider” for purposes of Sections 8.02(B)(ii)(y) and 8.03(iv)(E), the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Officers’ Certificate.



ARTICLE NINE

REDEMPTION




SECTION 9.01.      Right of Redemption. At any time prior to March 25, 2006,
the Company may redeem up to 35% of the principal amount of the Securities
originally issued with the Net Cash Proceeds of one or more Public Equity
Offerings at any time or from time to time in part, at a Redemption Price of
100% of the Claimed Amount thereof on the Redemption Date, together with
accrued and unpaid interest, if any, thereon; provided that (i) at least 65% of
the principal amount of the Securities remain outstanding after each such
redemption and (ii) notice of such redemption is mailed within 60 days of such
issuance. In addition, the Company may not redeem any of the Series B Notes
unless it makes a pro rata redemption of the Securities.



SECTION 9.02.      Notices to Trustee. If the Company elects to redeem
Securities pursuant to Section 9.01, it shall notify the Trustee in writing of
the Redemption Date and the principal amount of Securities to be redeemed.


     The Company shall give each notice provided for in this Section 9.02 in an
Officers’ Certificate at least ten days before mailing the notice to Holders
required pursuant to Section 9.04 (unless a shorter period shall be
satisfactory to the Trustee).



SECTION 9.03.      Selection of Securities to Be Redeemed. In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed on a national securities exchange,
by lot or by such other method as the Trustee in its sole discretion shall deem
to be fair and appropriate; provided that no Security of $1,000 in principal
amount or less shall be redeemed in part.


     The Trustee shall make the selection from the Securities outstanding and
not previously called for redemption. Securities in denominations of $1,000 or
less in principal amount may only be redeemed in whole. The Trustee may select
for redemption portions (equal to $1.00 in principal amount or any integral
multiple thereof) of Securities that have denominations larger than $1,000 in
principal amount. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company and the Registrar promptly in writing of the
Securities or portions of Securities to be called for redemption.



SECTION 9.04.      Notice
of Redemption. With respect to any redemption of
Securities pursuant to Section 9.01, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail a notice of redemption by
first class mail to each Holder whose Securities are to be redeemed.


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     The notice shall identify the Securities to be redeemed and shall state:


          (a)     the Redemption Date;



          (b)     the Redemption Price;



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



          (d)     that Securities called for redemption must be surrendered to the
Paying Agent in order to collect the Redemption Price;



          (e)     that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders is to receive
payment of the Redemption Price plus accrued interest to the Redemption Date
upon surrender of the Securities to the Paying Agent;



          (f)     that, if any Security is being redeemed in part, the portion of the
principal amount (equal to $1.00 in principal amount or any integral multiple
thereof) of such Security to be redeemed and that, on and after the Redemption
Date, upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion thereof will be reissued; and



          (g)     that, if any Security contains a CUSIP, CINS, ISIN or other
identification number as provided in Section 2.13, no representation is being
made as to the correctness of the CUSIP, CINS, ISIN or other identification
number either as printed on the Securities or as contained in the notice of redemption and that reliance may be placed only
on the other identification numbers printed on the Securities.



     At the Company’s request (which request may be revoked by the Company at
any time prior to the time at which the Trustee shall have given such notice to
the Holders), made in writing to the Trustee at least ten days before it is
required to mail the notice to Holders required by this Section 9.04, the
Trustee shall give such notice of redemption in the name and at the expense of
the Company. If, however, the Company gives such notice to the Holders, the
Company shall concurrently deliver to the Trustee an Officers’ Certificate
stating that such notice has been given.



SECTION 9.05.      Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon surrender of any Securities
to the Paying Agent, such Securities shall be paid at the Redemption Price,
plus accrued interest, if any, to the Redemption Date.


     Notice of redemption shall be deemed to be given when mailed, whether or
not the Holder receives the notice. In any event, failure to give such notice,
or any defect therein, shall not affect the validity of the proceedings for the
redemption of Securities held by Holders to whom such notice was properly
given.


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SECTION 9.06.      Deposit of Redemption Price. On or prior to 10:00 A.M. on
any Redemption Date, the Company shall deposit with the Paying Agent (or, if
the Company is acting as its own Paying Agent, shall segregate and hold in
trust as provided in Section 2.05) money sufficient to pay the Redemption Price
of and accrued interest on all Securities to be redeemed on that date other
than Securities or portions thereof called for redemption on that date that
have been delivered by the Company to the Trustee for cancellation.



SECTION 9.07.      Payment of Securities Called for Redemption. If notice of
redemption has been given in the manner provided above, the Securities or
portion of Securities specified in such notice to be redeemed shall become due
and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such Securities at the
Redemption Price and accrued interest to the Redemption Date, in which case the
principal, until paid, shall bear interest from the Redemption Date at the rate
prescribed in the Securities), such Securities shall cease to accrue interest.
Upon surrender of any Security for redemption in accordance with a notice of
redemption, such Security shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided that installments of interest shall be payable to the Holders
registered as such at the close of business on the relevant Regular Record Date
that is on or prior to the Redemption Date.



SECTION 9.08.      Securities Redeemed in Part. Upon surrender of any Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security equal in principal amount
to the unredeemed portion of such surrendered Security.



SECTION 9.09.      Offer to Purchase. Without limiting the obligations of the
Company under this Indenture, in the event that the Company shall make any
“Offer to Purchase” (as defined in the Series B Notes Indenture) the Series B
Notes, or any portion thereof, the Company shall also make an Offer to Purchase
the Securities on substantially the same terms and conditions.



ARTICLE TEN

AMENDMENTS, SUPPLEMENTS AND WAIVERS




SECTION 10.01.      Without Consent of Holders. The Company and the Guarantor,
when authorized by resolutions of their Boards of Directors, and the Trustee
may amend or supplement this Indenture or the Securities without notice to or
the consent of any Holder:


          (a)     to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not adversely affect the
interests of the Holders in any material respect;



          (b)     to comply with Article Five;



          (c)     to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the TIA;



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          (d)     to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee; or



          (e)     to make any change that, does not materially and adversely affect the
rights of any Holder.




SECTION 10.02.      With Consent of Holders. Subject to Sections 6.04 and 6.07
and without prior notice to the Holders, the Company and the Guarantor, when
authorized by their Boards of Directors (as evidenced by a Board Resolution),
and the Trustee may amend this Indenture and the Securities with the written
consent of the Holders of a majority in principal amount of the Securities then
outstanding, and the Holders of a majority in principal amount of the
Securities then outstanding by written notice to the Trustee may waive future
compliance by the Company or the Guarantor with any provision of this Indenture
or the Securities.


     Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected, an amendment or waiver, including a waiver pursuant to
Section 6.04, may not:


               (i)     change the Final Maturity, the Claimed Amount of, or any installment
of interest on, any Security;



               (ii)     reduce the principal amount of, the Claimed Amount of, or premium, if
any, or interest on, any Security, or adversely affect any right of repayment
at the option of any Holder of any Security;



               (iii)     change the place or currency of payment of principal of, or premium,
if any, or interest on, any Security;



               (iv)     impair the right to institute suit for the enforcement of any payment
on or after Final Maturity (or, in the case of a redemption, on or after the
Redemption Date) of any Security;



               (v)     make any change in a Subsidiary Guarantee that materially and
adversely affects the rights of any Holder;



               (vi)     reduce the above-stated percentage of outstanding Securities the
consent of whose Holders is required for any amendment of this Indenture, any
supplemental indenture, for any waiver of compliance with certain provisions of
this Indenture or for waiver of certain Defaults and their consequences
provided for in this Indenture;



               (vii)     waive a default in the payment of principal of, premium, if any, or
interest on the Securities;



               (viii)     release the Guarantor from the Security Guarantee; or



               (ix)     modify any of the provisions of this Section 10.02, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot



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be modified or waived without the consent of the Holder
of each outstanding Security affected thereby.


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


     After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.



SECTION 10.03.      Revocation and Effect of Consent. Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the Security
of the consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to its Security or portion of its Security. Such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective on receipt by the Trustee of
written consents from the Holders of the requisite percentage in principal
amount of the outstanding Securities.


     The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
last two sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies) and only
those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.


     After an amendment, supplement or waiver becomes effective, it shall bind
every Holder unless it is of the type described in any of clauses (i) through
(v) of Section 9.02. In case of an amendment or waiver of the type described
in clauses (i) through (v) of Section 9.02, the amendment or waiver shall bind
each Holder who has consented to it and every subsequent Holder of a Security
that evidences the same indebtedness as the Security of the consenting Holder.



SECTION 10.04.      Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder to deliver such Security to the Trustee. At the Company’s expense
the Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Security thereafter authenticated. Alternatively, if the


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Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms.



SECTION 10.05.      Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the
rights, duties or immunities of the Trustee under this Indenture or otherwise.
The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.



SECTION 10.06.      Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect.



ARTICLE ELEVEN

GUARANTEE OF SECURITIES




SECTION 11.01.      Security Guarantee. Subject to the provisions of this
Article Eleven, the Guarantor hereby fully, unconditionally and irrevocably
guarantees to each Holder and to the Trustee on behalf of the Holders: (i) the
due and punctual payment of the principal (which shall be deemed to equal the
then applicable Claimed Amount) of, premium, if any, on and interest on each
Security, when and as the same shall become due and payable, whether, by
acceleration, required repurchase (including by reason of Change of Control),
call for redemption or otherwise, the due and punctual payment of interest on
the overdue principal of and interest, if any, on the Securities, to the extent
lawful (in each case including interest accruing on or after filing of any
petition in bankruptcy or reorganization relating to the Company or the
Guarantor, whether or not a claim for post filing interest is allowed in such
proceeding), and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms of
such Security and this Indenture and (ii) in the case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, at Stated Maturity, by acceleration,
required repurchase (including by reason of Change of Control), call for
redemption or otherwise. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a proceeding first against the
Company, the benefit of discussion, protest or notice with respect to any such
Security or the debt evidenced thereby and all demands whatsoever, and
covenants that this Security Guarantee will not be discharged as to any such
Security except by payment in full of the principal (which shall be deemed to
equal the then applicable Claimed Amount) thereof and interest thereon and as
provided in Section 8.01 and Section 8.02 (subject to Section 8.06). The
Guarantor hereby also irrevocably waives any right contemplated by Articles 480
(second paragraph), 481 and 482 of the Argentine Commercial Code as well as any
rights and powers contemplated by Articles 1990, 1994, 2012, 2015, 2017, 2018,
2020, 2021 (except the right to oppose payment), 2022, 2023, 2024, 2025, 2026,
2028, 2029 (in the same extension as provided in the third paragraph of this


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Section 11.01), 2043, 2044, 2045, 2046, 2047, 2049 (except in the case of
express prior written waiver issued by the Trustee), and 2050 of the Argentine
Civil Code, to the extent any such rights of defenses would otherwise become
applicable or available to the Guarantor. The obligations of the Guarantor
hereunder shall not be affected by any failure or delay of the Trustee to
exercise any right or remedy under this Indenture, the Securities or this
Security Guarantee. The maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this Article Eleven.
In the event of any declaration of acceleration of such obligations as
provided in Article Six, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantor for the purpose of this
Article Eleven. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Six,
the Trustee shall promptly make a demand for payment on the Securities under
the Security Guarantee provided for in this Article Eleven.


     The Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant portion of the Company’s assets, and if
the Trustee or the Holder of any Security is required by any court or otherwise
to return to the Company or the Guarantor, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in relation
to the Company or the Guarantor, any amount paid to the Trustee or such Holder
in respect of a Security, this Security Guarantee, to the extent theretofore
discharged, shall continue to be effective or be reinstated in full force and
effect, as the case may be, all as if such payment has not been made. The
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of this Security
Guarantee, notwithstanding any stay, injunction or other prohibition extant
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations Guaranteed hereby.


     The Guarantor hereby irrevocably waives any claim or other rights which it
may now or hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of its obligations under this Security
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights until such time as
the Securities and all of the Company’s other obligations being guaranteed
hereby shall have been indefeasibly paid in full. If any amount shall be paid
to the Guarantor in violation of the preceding sentence and the principal of,
premium, if any, and accrued interest on the Securities shall not have been
paid in full, such amount shall be deemed to have been paid to the Guarantor
for the benefit of, and held in trust for the benefit of, the Holders, and
shall forthwith be paid to the Trustee for the benefit of the Holders to be
credited and applied upon the principal (which shall be deemed to equal the
then applicable Claimed Amount) of, premium, if any, and accrued interest on
the


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Securities. The Guarantor acknowledges that it will receive direct and
indirect benefits from the issuance of the Securities pursuant to this
Indenture and that the waivers set forth in this Section 11.01 are knowingly
made in contemplation of such benefits.


     The Security Guarantee set forth in this Section 11.01 shall not be valid
or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.



SECTION 11.02.      Obligations Unconditional. This Guarantee is absolute, unconditional and irrevocable irrespective of
the genuineness, validity, regularity, legality or enforceability of the
Securities or this Indenture or the obligations of the Company hereunder or
thereunder, the absence of any action to enforce the same, any merger,
consolidation, reorganization, winding-up or dissolution of the Company, any
waiver or consent or other action by any Holder of the Securities or by the
Trustee with respect to any provisions hereof or thereof, any release or
amendment or waiver of any term of any other guarantee of, or consent to
departure from any requirement of, any other guarantee of all or any of the
Securities, the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of the claims of the Trustee or any of the Holders for payment
of any of the Securities, the obtaining of any judgment against the Company or
any action to enforce the same, the failure of the Company to pay any fees to
the Guarantor, or any other circumstances whatsoever which might in any manner
or to any extent constitute a legal or equitable discharge or defense available
to the Company or to a guarantor or vary the risk of the Guarantor.


     The Guarantee shall be continuing and remain in full force and effect and
be binding upon the Guarantor and its successors and inure to the benefit of
the Trustee and the Holders, until all obligations of the Company with respect
to the Securities have been performed and indefeasiby paid in full, except as
otherwise provided in this Article Eleven.


     Subject to Section 11.05, nothing contained in this Article Eleven or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Guarantor and the holders of the Securities, the
obligation of the Guarantor, which is absolute, unconditional and irrevocable,
upon failure by the Company, to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms, without the
necessity of action by the Trustee or any Holder, or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors of
the Guarantor, nor shall anything herein or therein prevent the Holder of any
Security or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture.


     Without limiting the foregoing, nothing contained in this Article Eleven
will restrict the right of the Trustee or the Holders of the Securities to take
any action to declare the Security Guarantee to be due and payable prior to
Final Maturity pursuant to Section 6.02 or to pursue any rights or remedies
hereunder.



SECTION 11.03.      Payments by the Guarantor. The Guarantor agrees that any
payments made by it on the Securities will be paid strictly in accordance with
the terms and provisions


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thereof, regardless of any law, statute, rule,
regulation, decree or order, now or hereafter in effect in any jurisdiction,
purporting to affect in any manner any of the terms or provisions of the
Securities, this Indenture or this Security Guarantee or any of the Guarantor’s
rights, obligations or remedies with respect thereto as against the Company,
the Trustee of the Holders or purporting to cause or permit to be invoked any
alteration in the time, amount, manner, place or terms of payment by the
Company or the Guarantor under the Securities.



SECTION 11.04.      Notice to Trustee. The Guarantor shall give prompt written
notice to the Trustee of any fact known to the Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of the Security
Guarantee pursuant to the provisions of this Article Eleven.



SECTION 11.05.      This Article Not to Prevent Events of Default. The failure
to make a payment on account of principal of, premium, if any, or interest on
the Securities by reason of any provision of this Article Eleven will not be
construed as preventing the occurrence of an Event of Default.



SECTION 11.06.      Net Worth Limitation. Notwithstanding any other provision
of this Indenture or the Securities, the Security Guarantee shall not be
enforceable against the Guarantor in an amount in excess of the net worth of
the Guarantor at the time that determination of such net worth is, under
applicable law, relevant to the enforceability of the Security Guarantee. Such
net worth shall include any claim of the Guarantor against the Company for
reimbursement and any claim against any grantor of a Subsidiary Guarantee for
contribution.



SECTION 11.07.      Representation and Warranty of the Guarantor. The
Guarantor hereby represents and warrants that all acts, conditions and things
required to be done and performed and to have happened precedent to the
creation and issuance of this Security Guarantee, to constitute the same valid,
binding and legal obligation of the Guarantor, enforceable against the
Guarantor, its successors and assigns in accordance with its terms, have been
done and performed and have happened in compliance with all applicable laws.
The Guarantor acknowledges that this Security Guarantee is a guarantee of
payment and not of collection. The obligation of the Guarantor under this
Security Guarantee shall constitute a direct, general, irrevocable, unsecured
and unsubordinated obligations of the Guarantor. The Guarantor acknowledges
that it will receive direct and indirect benefits from the issuance of the
Securities pursuant to this Indenture and that the waivers set forth in this
Article Eleven are knowingly made in contemplation of such benefits.



SECTION 11.08.      Expenses. The Guarantor agrees to pay or reimburse the
Trustee upon its request for all expenses, disbursements, losses, liabilities
and advances (including the reasonable compensation and expenses and
disbursements of its counsel and of its agents) incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture,
including in particular, but without limitation, those incurred in connection
with the enforcement of any remedies or rights hereunder.



SECTION 11.09.      Special Waiver. To the extent that the Guarantor may be
entitled to the benefit of any provision of law requiring the Trustee or any
Holder of the Securities, in any suit,

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action or proceeding brought in a court in Argentina or other jurisdiction arising out of or in connection
with any of this Indenture or the Securities, to post security for litigation
costs or otherwise post a performance bond or guaranty (“cautio judication
solvi” or “excepcion de arraigo”), or to take any similar action, the Guarantor
hereby waives such benefit, in each case to the fullest extent now or hereafter
permitted under the laws of Argentina or, as the case may be, such other
jurisdiction.



 ARTICLE TWELVE

MISCELLANEOUS




SECTION 12.01.      Trust Indenture Act of 1939. Prior to the effectiveness of
the Registration Statement, this Indenture shall incorporate and be governed by
the provisions of the TIA that are required to be part of and to govern
indentures qualified under the TIA. After the effectiveness of the
Registration Statement, this Indenture shall be subject to the provisions of
the TIA that are required to be a part of this Indenture and shall, to the
extent applicable, be governed by such provisions.



SECTION 12.02.      Notices. Any notice or communication shall be sufficiently
given if in writing and delivered in Person or mailed by first class mail
addressed as follows:



		
	 	     if to the Company:




	 
	Elvira Rawson de Dellepiane 150

8th Floor

C1107BCA Buenos Aires, Argentina

Attention: Chief Executive Officer




		
	 	     if to the Guarantor:




	 
	Alférez Pareja 256

1107 Buenos Aires, Argentina

Attention: President




		
	 	     if to the Trustee:




	 
	The Bank of New York
	101 Barclay Street
	Floor 21 West
	New York, New York 10286
	Attention: Corporate Trust Administration



     The Company, the Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.


     Any notice or communication mailed to a Holder shall be mailed to him at
his address as it appears on the Security Register by first class mail and
shall be sufficiently given to him if so


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mailed within the time prescribed. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.


     Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee, which is deemed given only when received, and except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 12.02, it is duly given, whether or not the
addressee receives it. If, by reason of the suspension of publication or
general circulation of any newspaper or otherwise, it shall be impracticable to
publish notice to the Holders in the manner described herein, then any manner
of giving such notice as shall be satisfactory to the Trustee shall be deemed a
sufficient giving of such notice.


     Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.


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



SECTION 12.03.      Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or the Guarantor to the Trustee to
take any action under this Indenture, the Company or the Guarantor shall
furnish to the Trustee:


               (i)     an Officers’ Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and



               (ii)     an Opinion of Counsel stating that, in the opinion of such Counsel,
all such conditions precedent have been complied with.




SECTION 12.04.      Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


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



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



               (iii)     a statement that, in the opinion of each such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and



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               (iv)     a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with; provided that, with respect
to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate
or certificates of public officials.




SECTION 12.05.      Rules by Trustee, Paying Agent or Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.



SECTION 12.06.      Payment Date Other Than a Business Day. If an Interest
Payment Date, Redemption Date, Payment Date, or Final Maturity of any Security
shall not be a Business Day, then payment of principal of, premium, if any, or
interest on such Security, as the case may be, need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, Payment Date, Redemption Date,
or at Final Maturity of such Security; provided that no interest shall accrue
for the period from and after such Interest Payment Date, Payment Date,
Redemption Date, or Final Maturity, as the case may be.



SECTION 12.07.      Governing Law; Consent to Jurisdiction. This Indenture and
the Securities shall be governed by the laws of the State of New York. Each of
the Company and the Guarantor hereby acknowledges and agrees that it has
irrevocably designated and appointed the Company’s registered agent in the
State of Delaware, currently located at Corporation Trust Center, 1209 Orange
Street, Wilmington, DE, 19801 (together with any successor, the “Process
Agent”) as its authorized agent upon whom process may be served in any suit,
action or proceeding arising out of or relating to this Indenture or the
Securities or the transactions contemplated herein or brought under federal or
state securities laws that may be instituted in any federal or state court in
the State of New York, sitting in the city of New York, and acknowledges that
the Process Agent has accepted such designation, (ii) agrees that service of
process upon the Process Agent and written notice of such service to the
Company or the Guarantor, as the case may be (mailed or delivered to the Chief
Executive Officer of the Company at its principal office at Elvira Rawson de
Dellepiane 150, 8th Floor, C1107BCA Buenos Aires, Argentina), shall be deemed
in every respect effective service of process upon the Company or the
Guarantor, as the case may be, in any such suit, action or proceeding and (iii)
agrees to take any and all action, including the execution and filing of any
and all such documents and instruments as may be necessary to continue such
designation and appointment of the Process Agent in full force and effect so
long as any of the Securities shall be outstanding. Each of the Company and
the Guarantor hereby agrees to submit to the nonexclusive jurisdiction of any
such federal or state court in the State of New York in any such suit, action
or proceeding arising out of or relating to this Indenture or the Securities or
the transactions contemplated herein and hereby waives to the fullest extent permitted by law any defense to the institution or
continuance of any such suit, action or proceeding based upon lack of proper
venue, inconvenient forum or similar grounds.



SECTION 12.08.      No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company, the Guarantor or any Subsidiary of the Company. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.


83






 



SECTION 12.09.      No Recourse Against Others. No recourse for the payment of
the principal of, premium, if any, or interest on any of the Securities, or for
any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company or the Guarantor
contained in this Indenture, or in any of the Securities, or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator or against any past, present or future partner, stockholder, other
equity holder, officer, director, employee or controlling person, as such, of
the Company or the Guarantor or of any successor Person, either directly or
through the Company or the Guarantor or any successor Person, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.



SECTION 12.10.      Successors. All agreements of the Company and the Guarantor
in this Indenture and the Securities shall bind their respective successors.
All agreements of the Trustee in this Indenture shall bind its successors.



SECTION 12.11.      Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.



SECTION 12.12.      Currency Indemnity. U.S. dollars are the sole currency of
account and payment for all sums payable by the Company or the Guarantor under
or in connection with the Securities or the Security Guarantee, including
damages. Any amount received or recovered in a currency other than U.S.
dollars (whether as a result of, or of the enforcement of, a judgment or order
of a court of any jurisdiction, in the winding-up or dissolution of the Company
or the Guarantor or otherwise) by any Holder of a Security in respect of any
sum expressed to be due to it from the Company or the Guarantor shall only
constitute a discharge to the Company or the Guarantor to the extent of the
U.S. dollar amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so). If that U.S. dollar
amount is less than the U.S. dollar amount expressed to be due to the recipient
under any Security or the Security Guarantee, the Company and the Guarantor
shall indemnify the recipient against any loss sustained by it as a result. In
any event, the Company and the Guarantor shall indemnify the recipient against
the cost of making any such purchase. For the purposes of this paragraph, it
will be sufficient for the Holder of a Security to certify in a satisfactory
manner (indicating the sources of information used) that it would have suffered
a loss had an actual purchase of U.S. dollars been made with the amount so
received in that other currency on the date of receipt or recovery (or, if a
purchase of U.S. dollars on such date had not been practicable, on the first
date on which it would have been practicable, it being required that the need
for a change of date be certified in the manner mentioned above). These
indemnities constitute a separate and independent obligation from the Company’s
and the Guarantor’s other obligations, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by any Holder of a Security and shall continue in full force and effect despite
any other judgment, order, claim or proof for a liquidated amount in respect of
any sum due under any Security.


84






 



SECTION 12.13.      Currency Translations. For purposes of determining
compliance with this Indenture, the U.S. dollar equivalent of any amounts
denominated in a foreign currency shall be calculated using the noon dollar
buying rate in New York City for wire transfers of such currency as published
by the Federal Reserve Bank of New York on the date of such foreign currency
amount is received, incurred or paid. For other financial reporting purposes,
currency translations will be performed in accordance with GAAP.



SECTION 12.14.      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 hereof and shall in no way modify or restrict any of the
terms and provisions hereof.


[signature page follows]



85






 






SIGNATURES



     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.



	 	 	 	 	 
	 	 	IMPSAT FIBER NETWORKS, INC.
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	IMPSAT S.A.
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	THE BANK OF NEW YORK
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

Name:
	 	 	 	 	Title:




 










 



EXHIBIT A


[FACE OF NOTE]



IMPSAT FIBER NETWORKS, INC.

Series A 6% Senior Guaranteed Convertible Note due 2011



[CUSIP     ]

[ISIN     ]



	 	 	 	 	 
	No	 	 	
$	 



               IMPSAT FIBER NETWORKS, INC., a Delaware corporation (the “Company”, which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to       , or its registered assigns, the
principal sum of         DOLLARS ($       ) on March 15, 2011.



               Interest Payment Dates: March 15 and September 15, commencing September
15, 2005.



               Regular Record Dates: March 1 and September 1.



               Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.



               IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.




	 	 	 
	 	
IMPSAT FIBER NETWORKS, INC.
	 	 	 
	 	By: 	


Name:
	 	 	
Title:
	 	 	 
	 	By:	
 

Name:
	 	 	
Title:



(Form of Trustee’s Certificate of Authentication)



This is one of the Series A 6% Senior Guaranteed Convertible Note due 2011
described in the within-mentioned Indenture.



	 	 	 
	Date:        , 2003	
THE BANK OF NEW YORK

as Trustee
	 	 	 
	 	By:	
 

Authorized Signatory



 






 



[REVERSE SIDE OF NOTE]



IMPSAT FIBER NETWORKS, INC.



Series A 6% Senior Guaranteed Convertible Note due 2011



          1.    Principal
and Interest. The Company will pay the principal of this
Note on March 15, 2011.



               The Company promises to pay interest on the principal amount (which shall
be deemed to equal the then applicable Claimed Amount) of this Note on each
Interest Payment Date, as set forth below, at the rate per annum shown above.



               Interest will be payable semiannually (to the holders of record of the
Notes at the close of business on the March 1 or September 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
September 15, 2005.



               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 March 25, 2005;
provided that, if there is no existing default in the payment of interest and
this Note is authenticated between a Regular Record Date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.



               The Company shall pay interest on overdue principal and premium, if any,
and (to the extent lawful) interest on overdue installments of interest at the
rate per annum borne by the Notes.



          2.    Method
of Payment. The Company will pay principal as provided above
and interest (except defaulted interest) on the principal amount of the Notes
as provided above on each March 15 and September 15 to the persons who are
Holders (as reflected in the Security Register at the close of business on the
March 1 and September 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is canceled on registration of transfer or
registration of exchange after such record date; provided that, with respect to
the payment of principal, the Company will not make payment to the Holder
unless this Note is surrendered to a Paying Agent.



               The Company will pay principal, premium, if any, and as provided above,
interest in money of the United States of America that at the time of payment
is legal tender for payment of public and private debts. However, the Company
may pay interest by its check payable in such money mailed to a Holder’s
registered address (as reflected in the Security Register). If a payment date
is a date other than a Business Day at a place of payment, payment may be made
at that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.



          3.    Paying
Agent, Conversion Agent and Registrar. Initially, the Trustee
will act as authenticating agent, Paying Agent, Conversion Agent and Registrar.
The Company may change



 






 





any authenticating agent, Paying Agent, Conversion
Agent or Registrar without notice. The Company, any Subsidiary or any
Affiliate of any of them may act as Paying Agent, Conversion Agent, Registrar
or co-Registrar.


          4.    Indenture;
Limitations. The Company issued the Notes under an
Indenture dated as of March 25, 2003 (the “Indenture”), between the Company, as
issuer, IMPSAT S.A., as guarantor (the “Guarantor”), and The Bank of New York,
as trustee (the “Trustee”). Capitalized terms herein are used as defined in
the Indenture unless otherwise indicated. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the Trust Indenture Act for a statement of
all such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture,
the terms of the Indenture shall control.



               The Notes are general unsecured unsubordinated indebtedness of the
Company, will rank pari passu in right of payment with all existing and future
unsecured, unsubordinated indebtedness of the Company and will be senior in
right of payment to all subordinated indebtedness of the Company.



          5.    Conversion
of Note by Holder.



          (a)    Subject to the provisions of Section 3.01 of the Indenture, a Holder
of a Note may convert such Note at any time after the date hereof (but if such
Note is called for redemption pursuant to Article Nine of the Indenture, then
only to and including but not after the close of business on the fifth Business
Day preceding the Redemption Date (as hereinafter defined), provided that no
default by the Company in the payment of the Redemption Price (as hereinafter
defined) shall have occurred and be continuing on the Redemption Date in which
case such right of conversion shall be reinstated), at the Conversion Price (as
hereinafter defined) then in effect into the Company’s Common Stock. The
number of shares of the Company’s Common Stock issuable upon conversion of a
Note shall be determined by dividing the principal amount of the Note or
portion thereof surrendered for conversion by the Conversion Price in effect on
the Conversion Date. Subject to adjustment or voluntary reduction as provided
in Article 3 of the Indenture, the “Conversion Price” shall be calculated as
follows:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Sixth Month	 	First	 	18th Month	 	Second
Anniversary of
	 	 	 	 	 	 	Anniversary	 	Anniversary	 	Anniversary	 	the Closing Date
	 	 	 	 	 	 	of the	 	of the	 	of the	 	and thereafter
	 	 	Closing	 	Closing	 	Closing	 	Closing	 	until Final
	 	 	Date	 	Date	 	Date	 	Date	 	Maturity
	 	 	
	 	
	 	
	 	
	 	

	Conversion Price
	 	$	14.39	 	 	$	14.17	 	 	$	13.97	 	 	$	13.76	 	 	$	13.56	 



               In the event that the Conversion Date shall be a date between any of the
dates specified in the table above (but prior to the second anniversary of the
Closing Date), the Conversion Price shall be calculated on the basis of the
increase in the Conversion Price between such dates based a period of 180 days.



 






 





          (b)    A Holder of Notes may convert a portion of a Note equal to $1.00 or
any integral multiple thereof; provided that provisions of Article 3 of the
Indenture that apply to conversion of all of a Note also apply to conversion of
a portion of a Note.



          (c)    A Holder of Notes is not entitled to any rights of a holder of the
Company’s Common Stock until such Holder has converted its Notes to the
Company’s Common Stock, and only to the extent such Notes are deemed to have
been converted into the Company’s Common Stock pursuant to Article 3 of the
Indenture.



          (d)    In the event that (i) the Company takes any action which would require
an adjustment in the Conversion Price; (ii) the Company consolidates or merges
with, or transfers all or substantially all of its property and assets to,
another corporation and stockholders of the Company must approve the
transaction; or (iii) there is a dissolution or liquidation of the Company, the
Company shall mail to the Holders and file with the Trustee a notice stating
the proposed record or effective date, as the case may be. The Company shall
mail the notice before such date to the same extent as such notice is mailed to
the stockholders of the Company.



          (e)    The Conversion Price shall be adjusted from time to time by the
Company as follows:



               (i)    In case the Company shall (A) pay a dividend in shares of the
Company’s Common Stock to the holders of the Company’s Common Stock, (B) make a
distribution in shares of the Company’s Common Stock to the holders of the
Company’s Common Stock, (C) subdivide or split its outstanding Common Stock
into a larger number of shares, or (D) combine its outstanding Common Stock
into a smaller number of shares, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the Holder of any Note thereafter
surrendered for conversion shall be entitled to receive that number of shares
of the Company’s Common Stock which it would have owned or been entitled to
receive had such Note been converted immediately prior to the happening of such
event. An adjustment made pursuant to this subsection (i) shall become
effective as of the close of business on the record date in the case of a
dividend in shares or distribution and shall become effective as of the close
of business on the effective date in the case of a subdivision, split or
combination.



               (ii)    In case (A) the Company shall issue rights or warrants to all or
substantially all holders of its the Company’s Common Stock entitling them (for
a period commencing no earlier than the record date described below and
expiring not more than 60 days after such record date) to subscribe for or
purchase shares of the Company’s Common Stock (or securities convertible into
the Company’s Common Stock) at a price per share less than the Current Market
Price per share of the Company’s Common Stock (as determined in accordance with
subsection (vii) of this Section 5(e)) at the record date for the determination
of stockholders entitled to receive such rights or warrants or (B) the Company
shall sell or issue any of the Company’s Common Stock and the consideration per
share of the Company’s Common Stock to be paid upon such issuance or
subscription is less than the Current Market Price per share of the Company’s
Common Stock or the Company shall sell or issue warrants, rights or other
convertible securities to subscribe for or purchase shares of the Company’s
Common Stock at a price per share less than the Current Market Price per share
of the Company’s Common Stock (each as determined in accordance with subsection
(vii) of this Section 5(e)) on the date of such



 






 





sale or issuance, the
Conversion Price in effect as of the close of business on the record date
thereto shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect on the record date by a fraction,
the numerator of which shall be the number of shares of the Company’s Common
Stock outstanding on such record date, plus the number of shares which the
aggregate offering price of the total number of shares of the Company’s Common
Stock so offered (or the aggregate conversion price of the Notes so offered)
would purchase at such Current Market Price, and the denominator of which shall
be the number of shares of the Company’s Common Stock outstanding on such
record date plus the number of additional shares of the Company’s Common Stock
offered (or into which the convertible securities so offered are convertible).
Such adjustment shall be made successively whenever any such rights, warrants
or convertible securities are issued, and shall become effective as of the
close of business on such record date. If at the end of the period during
which such rights or warrants are exercisable not all rights or warrants shall
have been exercised, the adjusted Conversion Price shall be immediately
readjusted to what it would have been based upon the number of additional
shares of the Company’s Common Stock actually issued (or the number of shares
of the Company’s Common Stock issuable upon conversion of Notes actually
issued).


               (iii)    In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock, cash (excluding (x) any regular cash dividend
on the Common Stock to the extent that the aggregate cash dividend per share of
Common Stock in any four fiscal quarters does not exceed the greater of (A) the
amount per share of Common Stock of the cash dividend on the Common Stock for
the preceding four fiscal quarters to the extent that such dividend for the
preceding four fiscal quarters did not require any adjustment of the Conversion
Price pursuant to this Section 5(e)(iii) (as adjusted to reflect subdivisions
or combinations of the Common Stock), and (B) 3.75% of the arithmetic average
of the Closing Prices (as set forth in Section 5(e)(vii)) during the ten
Business Days immediately prior to the date of declaration of such dividend,
(y) any dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, and
(z) any cash that is distributed as part of a distribution requiring a
Conversion Price adjustment pursuant to Section 5(e)(iv)), then, in such case,
the Conversion Price shall be decreased so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the close of business on the record date of such action by a fraction, the
numerator of which shall be the Current Market Price of the Company’s Common
Stock on such record date less the amount of cash so distributed (and not
excluded as provided above) applicable to one share of Common Stock and the
denominator shall be the Current Market Price of the Company’s Common Stock on
such record date, such decrease shall be effective immediately prior to the
opening of business on the day following the record date of such action;
provided that, in the event the portion of the cash so distributed applicable
to one share of the Company’s Common Stock is equal to or greater than the
Current Market Price of such Common Stock on the record date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder
shall have the right to receive upon conversion the amount of cash such Holder
would have received had such Holder converted such Security on the record date.
In the event that such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such dividend or distribution had not been declared. If
any adjustment is required to be made as set forth in this Section 5(e)(iii) as
a result of a distribution that is a regular dividend, such adjustment shall be
based upon the amount by which such distribution exceeds the amount of the
regular cash dividend permitted to be



 






 





excluded pursuant hereto. If an
adjustment is required to be made as set forth in this Section 5(e)(iii) above
as a result of a distribution that is not a regular dividend, such adjustment
shall be based upon the full amount of the distribution.


               (iv)    In case the Company shall distribute to all or substantially all
holders of its the Company’s Common Stock any shares of capital stock of the
Company (other than the Company’s Common Stock), evidences of indebtedness or
other non-cash assets (including securities of any Person), or shall distribute
to all holders of its the Company’s Common Stock rights or warrants to
subscribe for or purchase any of its securities (excluding those referred to in
subsection (ii) of this Section 5(e)) (any of the foregoing hereinafter
referred to as the “Distributed Securities”), then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect as of the close of
business on the record date for such distribution by a fraction, the numerator
of which shall be the Current Market Price of the Company’s Common Stock on the
record date mentioned below less the fair market value on such record date of
the portion of the Distributable Securities applicable to one share of the
Company’s Common Stock (determined on the basis of the number of shares of the
Company’s Common Stock outstanding on the record date), and the denominator of
which shall be the Current Market Price per share (as determined in accordance
with subsection (vii) of this Section 5(e)) of the Company’s Common Stock on
such record date. Such adjustment shall become effective as of the close of
business on the record date for the determination of stockholders entitled to
receive such distribution. Notwithstanding the foregoing, in the event that
(x) the Company shall distribute rights or warrants (other than those referred
to in subsection (ii) of this Section 5(e)) pro rata to holders of the
Company’s Common Stock or (y) the then fair market value of the portion of the
Distributable Securities so distributed applicable to one share of the
Company’s Common Stock is equal to or greater than the Current Market Price of
such Common Stock, the Company may, in lieu of making any adjustment pursuant
to this Section 5(e), make proper provision so that each holder of a Note who
converts such Note (or any portion thereof) after the record date for such
distribution and shall be entitled to receive upon such conversion, in addition
to the shares of the Company’s Common Stock issuable upon such conversion (the
“Conversion Shares”), the amount of Distributed Securities such Holder would
have received had such Holder converted each Security on such record date;
provided that, with respect to clause (x), the foregoing provision shall apply
only to the extent the Distributed Securities receivable upon conversion for
such Security would be convertible, exchangeable or exercisable, as applicable,
without any loss of rights or privileges for a period of at least 60 days
following conversion of such Security.



               (v)    In case a tender or exchange offer made by the Company or any
Subsidiary of the Company for all or any portion of the Company’s Common Stock
shall expire and such tender or exchange offer shall involve the payment by the
Company or such Subsidiary of consideration per share of the Company’s Common
Stock having a fair market value (as determined by the Board of Directors of
the Company or, to the extent permitted by applicable law, a duly authorized
committee thereof, whose determination shall be conclusive, and described in a
resolution of such Board of Directors or such duly authorized committee
thereof, as the case may be, at the last time (the
“Expiration Time”) tenders
or exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended)) that exceeds the Current Market Price per share of the
Company’s Common Stock on the Trading Day next succeeding the Expiration Time,
the Conversion Price shall be reduced so that the same shall



 






 





equal the
Conversion Price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be the number of shares of the Company’s Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Current Market Price of the Company’s Common Stock on the Trading Day
next succeeding the Expiration Time, and the denominator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted up to any such maximum, being referred to as the
“Purchased Shares”) and (y) the product of the number of shares of the
Company’s Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price of the Company’s Common Stock on
the Trading Day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the Trading Day next
succeeding the Expiration Time. In the event that the Company or such
Subsidiary is obligated to purchase shares of the Company’s Common Stock
pursuant to any such tender or exchange offer, but the Company or such
Subsidiary is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall again
be adjusted to be the Conversion Price that would then be effect if such tender
or exchange offer had not been made.


               (vi)    In case a tender or exchange offer made by a Person other than the
Company or any Subsidiary of the Company for an amount that increases the
offeror’s ownership of the Company’s Common Stock to more than 30% of the
Company’s Common Stock outstanding shall expire and such tender or exchange
offer shall involve the payment by such Person of consideration per share of
the Company’s Common Stock having a fair market value (as determined by the
Board of Directors of the Company or to the extent permitted by applicable law,
a duly authorized committee thereof, whose determination shall be conclusive,
and described in a resolution of such Board of Directors or such duly
authorized committee thereof, as the case may be) at the Expiration Time that
exceeds the Current Market Price of the Company’s Common Stock on the Trading
Day next succeeding the Expiration Time, and in which, as of the Expiration
Time the Board of Directors of the Company is not recommending rejection of the
offer, the Conversion Price shall be reduced so that the same shall equal the
Conversion Price determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be the number of shares of the Company’s Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Current Market Price of the Company’s Common Stock on the Trading Day
next succeeding the Expiration Time and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all Purchased Shares and (y) the
product of the number of shares of the Company’s Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and the Current Market Price of
the Company’s Common Stock on the Trading Day next succeeding the Expiration
Time, such reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that such
Person is obligated to purchase shares of the Company’s Common Stock pursuant
to any such tender or exchange offer, but such Person is permanently prevented
by applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the



 






 





Conversion
Price that would then be in effect if such tender or exchange offer had not
been made. Notwithstanding the foregoing, the adjustment described in this
Section 5(e) shall not be made if, as of the Expiration Time, the offering
documents with respect to such offer disclose a plan or intention to cause the
Company to engage in any transaction described in Article 5 of the Indenture.



               (vii)    For purposes of this Section 5(e), the following terms shall have
the meaning indicated:



               “Closing
Price” with respect to any securities on any date shall mean the
closing sale price, regular way, on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, in each case on the New York Stock Exchange, or, if such security
is not listed or admitted to trading on such Exchange, on the principal
security exchange or quotation system in the United States on which such
security is quoted or listed or admitted to trading, or, the average of the
closing bid and asked prices of such security on the over-the-counter market on
the day in question as reported by the Nasdaq National Market or a similar
generally accepted reporting service, or if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose, or a price determined in good faith
by the
Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive.



               “Current
Market Price” shall mean the average of the daily Closing Prices
per share of the Company’s Common Stock for the ten consecutive Business Days
immediately prior to the date in question.



               “fair
market value” shall mean the price that would be paid in an
arm’s-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Board of Directors, whose determination
shall be conclusive if evidenced by a Board Resolution.



               (viii)    In any case in which this Section 5(e) shall require that an
adjustment be made on a record date established for purposes of this Section
5(e), the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 3.09 of the Indenture) issuing to the Holder of any Note
converted after such record date but prior to the issue date, the shares of the
Company’s Common Stock and other capital stock of the Company issuable upon
such conversion over and above the shares of the Company’s Common Stock and
other Capital Stock of the Company issuable upon such conversion only on the
basis of the Conversion Price prior to adjustment; and, in lieu of the shares
the issuance of which is so deferred, the Company shall issue or cause its
transfer agents to issue due bills or other appropriate evidence prepared by
the Company of the right to receive such shares. If any distribution in
respect of which an adjustment to the Conversion Price is required to be made
as of the record date or effective date therefor is not thereafter made or paid
by the Company for any reason, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect if such record date had not been
fixed or such effective date had not occurred.



 






 





               If any of the following shall occur, namely: (A) any reclassification or
change of shares of the Company’s Common Stock issuable upon conversion of the
Notes (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination,
or any other change for which an adjustment is provided in Section 3.06 of the
Indenture); (B) any consolidation or merger to which the Company is a party
other than a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a
change in name, or in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination) in,
outstanding shares of the Company’s Common Stock; or (C) any sale, transfer or
conveyance of all or substantially all of the property and assets of the
Company to any Person, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, sale, transfer or conveyance,
execute and deliver to the Trustee an amendment to the indenture providing that
the Holder of each Note then outstanding shall have the right to convert such
Note into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification, change,
consolidation, merger, sale, transfer or conveyance by a holder of the number
of shares of the Company’s Common Stock deliverable upon conversion of such
Note immediately prior to such reclassification, change, consolidation, merger,
sale, transfer or conveyance.



          6.    Repurchase
upon Change in Control. Unless waived in writing by Holders of
two-thirds in principal amount of the Notes then outstanding, upon the
occurrence of any Change of Control, each Holder shall have the right to
require the repurchase of its Notes by the Company in cash pursuant to the
offer described in the Indenture at a purchase price equal to 101% of the
Claimed Amount thereof plus accrued and unpaid interest, if any, to the date of
purchase (the “Change of Control Payment”).



               A notice of such Change of Control will be mailed within 30 days after any
Change of Control occurs to each Holder at his last address as it appears in
the Security Register. Notes in original denominations larger than $1,000 may
be sold to the Company in part; provided that Notes will only be issued in
denominations of $1.00 principal amount or integral multiples thereof. On and
after the Change of Control Payment Date, interest ceases to accrue on Notes or
portions of Notes surrendered for purchase by the Company, unless the Company
defaults in the payment of the Change of Control Payment.



          7.    Redemption. At any time prior to March 25, 2006, the Company may
redeem up to 35% of the principal amount of the Notes originally issued with
the Net Cash Proceeds of one or more Public Equity Offerings at any time or
from time to time in part, at a Redemption Price of 100% of the Claimed Amount
thereof on the Redemption Date, together with accrued and unpaid interest, if
any, thereon; provided that (i) at least 65% of the principal amount of the
Notes remain outstanding after each such redemption and (ii) notice of such
redemption is mailed within 60 days of such issuance.



          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 of
Notes to be redeemed at such Holder’s last address as it appears in the
Security Register. Notes in original denominations larger than $1,000 may be
redeemed in part; provided that Notes will only be issued in



 






 





denominations of
$1.00 principal amount or integral multiples thereof. On and after the
Redemption Date, interest ceases to accrue on Notes or portions of Notes called
for redemption, unless the Company defaults in the payment of the Redemption
Price.


          9.    Claimed
Amount. The “Claimed Amount” corresponding to any applicable
date shall be the applicable Claimed Amount specified in the table below:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	Sixth Month	 	First	 	18th Month	 	Second
Anniversary of
	 	 	 	 	 	 	 	Anniversary	 	Anniversary	 	Anniversary	 	the Closing
	 	 	 	 	 	 	 	of the	 	of the	 	of the	 	Date and
	 	 	 	Closing	 	Closing	 	Closing	 	Closing	 	thereafter until
	 	 	 	Date	 	Date	 	Date	 	Date	 	Final Maturity
	 	 	 	
	 	
	 	
	 	
	 	

	Claimed Amount
(as % of face principal amount of the Note)
	 	 	88.85	%	 	 	91.51	%	 	 	94.26	%	 	 	97.09	%	 	100.00%, plus
accrued interest



In the event that a determination of the Claimed Amount is to be made for a day
between any of the dates specified in the table above (but prior to the second
anniversary of the Closing Date), the Claimed Amount shall be calculated on the
basis of the increase in the Claimed Amount between such dates based a period
of 180 days.


          10.    Denominations;
Transfer; Exchange. The Notes are in registered form
without coupons in denominations of $1.00 of principal amount and integral
multiples thereof. A Holder may register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer or exchange of any Notes selected for
redemption. Also, it need not register the transfer or exchange of any Notes
for a period of 15 days before a selection of Notes to be redeemed is made.



          11.    Persons
Deemed Owners. A Holder shall be treated as the owner of a
Note for all purposes.



          12.    Unclaimed
Money. If money for the payment of principal, premium, if
any, or interest remains unclaimed for two years, the Trustee and the Paying
Agent will pay the money back to the Company. After that, Holders entitled to
the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.



          13.    Discharge
Prior to Redemption or Maturity. If the Company deposits
with the Trustee money or U.S. Government Obligations sufficient to pay the
then outstanding principal (which shall be deemed to equal the then applicable
Claimed Amount) of, premium, if any, and accrued interest on the Notes (a) to
maturity, the Company and the Guarantor will be discharged from the Indenture
and the Notes, except in certain circumstances for certain sections thereof,
and (b) to Final Maturity, the Company and the Guarantor will be discharged
from certain covenants set forth in the Indenture.



 






 





          14.    Amendment;
Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding, and any existing default or compliance with any provision may be
waived with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency and make
any change that does not materially and adversely affect the rights of any
Holder.



          15.    Restrictive
Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries, among other things,
to incur additional indebtedness; create liens; engage in sale-leaseback
transactions; pay dividends or make distributions in respect of their capital
stock; make investments or make certain other restricted payments; sell assets;
issue or sell stock of Restricted Subsidiaries; enter into transactions with
stockholders or affiliates; or, with respect to the Guarantor and the Company,
consolidate, merge or sell all or substantially all of their assets. Within 90
days after the end of the last fiscal quarter of each year, the Company must
report to the Trustee on compliance with such limitations.



          16.    Successor
Persons. Generally, when a successor person or other entity
assumes all the obligations of its predecessor under the Notes and the
Indenture, the predecessor person will be released from those obligations.



          17.    Defaults
and Remedies. Any of the following events shall constitute
an Event of Default under the Indenture:

	 	 
	 	               (a)    default in the payment of principal of or premium, if any, on,
any Note (including the Change of Control Redemption Price) when the same
becomes due and payable at maturity, upon acceleration, redemption or
otherwise;

	 
	 	               (b)    default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30
days;

	 
	 	               (c)    the Company or the Guarantor defaults in the performance of or
breaches any other covenant or agreement of the Company in the Indenture,
the Registration Rights Agreement or under the Notes and such default or
breach continues for a period of 30 consecutive days after written notice
by the Trustee or the Holders of 25% or more in aggregate principal
amount of the Notes;

	 
	 	               (d)    there occurs with respect to any issue or issues of Indebtedness
of the Company, the Guarantor or any Significant Subsidiary having an
outstanding principal amount of $5 million or more in the aggregate for
all such issues of all such Persons, whether such Indebtedness now exists
or shall hereafter be created, (I) an event of default that has caused
the holder thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such acceleration and/or (II) the failure to
make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made, waived or
extended




 






 

	 	 
	 	within 30 days of such payment default; provided that any such
event of default or failure to make a payment, in each case, with respect
to any Indebtedness existing as of the Closing Date in respect of which
the holders thereof did not vote affirmatively to accept the Plan, shall
not be deemed to be an Event of Default;

	 
	 	               (e)    any final judgment or order (not covered by insurance) for the
payment of money in excess of $5 million in the aggregate for all such
final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, the Guarantor or any Significant Subsidiary
and shall not be paid or discharged, and either (A) an enforcement
proceeding shall have been commenced by a creditor upon such judgment or
order or (B) there shall be any period of 30 consecutive days following
entry of the final judgment or order that causes the aggregate amount for
all such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $5 million during which a stay of
enforcement of such final judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided that the occurrence
of any such actions that relate to or arise out of any Indebtedness
existing as of the Closing Date in respect of which the holders thereof
did not vote affirmatively to accept the Plan shall not be deemed to be
an Event of Default;

	 
	 	               (f)    a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company, the Guarantor or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, the Guarantor or any
Significant Subsidiary or for all or substantially all of the property
and assets of the Company, the Guarantor or any Significant Subsidiary or
(C) the winding up or liquidation of the affairs of the Company, the
Guarantor or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 30 consecutive
days; provided that the issuance of any such decree or order with respect
to the Guarantor or any Significant Subsidiary (the entry of which was
not consented to by the Company, the Guarantor or any Significant
Subsidiary) at the request of the holder of any Indebtedness existing as
of the Closing Date in respect of which such holder did not vote
affirmatively to accept the Plan shall not be deemed to be an Event of
Default;

	 
	 	               (g)    the Company, the Guarantor or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consents to the entry of
an order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company, the Guarantor or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company,
the Guarantor or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors; provided that the occurrence of
any such event with respect to the Guarantor, in each case between the
Closing Date and September 25, 2003, shall not be deemed to be an Event
of Default.




 






 

	 	 
	 	               (h)    the Security Guarantee or any Subsidiary Guarantee by a
Restricted Subsidiary shall cease to be, or shall be asserted in writing
by the Company, the Guarantor or such Restricted Subsidiary not to be, in
full force and effect or enforceable in accordance with its terms.




If an Event of Default (other than an Event of Default specified in clause (f)
or (g) above that occurs with respect to the Company) occurs and is continuing
under the Indenture, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes, then outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal (which
shall be deemed to equal the then applicable Claimed Amount), premium, if any,
and accrued interest on the Notes to be immediately due and payable. If a
bankruptcy or insolvency default with respect to the Company occurs and is
continuing, the principal (which shall be deemed to equal the then applicable
Claimed Amount) of, premium, if any, and accrued interest on the Notes
automatically becomes due and payable without any declaration or other act on
the part of the Trustee or any Holder. Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Notes.
Subject to certain limitations, Holders of at least a majority in principal
amount of the Notes then outstanding may direct the Trustee in its exercise of
any trust or power.


          18.    Additional
Amounts. Any payments by the Guarantor under or with
respect to the Notes may require the payment of Additional Amounts as may
become payable under Section 4.20 of the Indenture.



          19.    Guarantee. The Company’s obligations under the notes are fully,
unconditionally and irrevocably guaranteed by the Guarantor.



          20.    Trustee
Dealings with Company or the Guarantor. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from and perform services for the Guarantor or the Company or their
Affiliates and may otherwise deal with the Company, the Guarantor or their
Affiliates as if it were not the Trustee.



          21.    No
Recourse Against Others. No incorporator or any past, present or
future partner, stockholder, other equity holder, officer, director, employee
or controlling person as such, of the Company or the Guarantor or of any
successor Person shall have any liability for any obligations of the Company or
the Guarantor under the Notes or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Notes.



          22.    Authentication. This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.



          23.    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).



 






 





               The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to IMPSAT Fiber Networks,
Inc., Elvira Rawson de Dellepiane 150, 8th Floor, C1107BCA Buenos Aires,
Republic of Argentina, Attention: Chief Executive Officer.



 






 





[FORM OF TRANSFER NOTICE]



               FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto



Insert Taxpayer Identification No.






Please print or typewrite name and address including zip code of assignee





the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________________________________

attorney to transfer said Note on the books of the Company with full power
of substitution in the premises.

     [THE FOLLOWING PROVISION TO BE INCLUDED ON ALL SECURITIES ISSUED TO A
HOLDER CONSIDERED A “CONTROL PERSON” UNDER SECTION 1145(B)(1) OF THE UNITED
STATES BANKRUPTCY CODE OTHER THAN REGISTERED SECURITIES]


     In connection with any transfer of this Note occurring prior to the date
of an effective Registration Statement, the undersigned confirms that without
utilizing any general solicitation or general advertising that:


[Check One]




	 	 	 	 	 
	[  ](a)	 	
 
	 	this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144 thereunder.



or




	 	 	 	 	 
	[  ](b)	 	
 
	 	this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.



If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.



	 	 	 	 
	Date:	 	 	 
	 	
	 	

	 	 	 	
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in every particular, without
alteration or any change whatsoever.



 






 



OPTION OF HOLDER TO ELECT PURCHASE



     If you wish to have this Note purchased by the Company pursuant to Section
4.11 or Section 4.12 of the Indenture, check the Box:   o


     If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.11 or Section 4.12 of the Indenture, state the amount (in
principal amount):
$ _______________.


Date: ________________



Your Signature:




(Sign exactly as your name appears on the other side of this Note)




Signature Guarantee:





 










 



EXHIBIT B


FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP



          This certificate is being provided to IMPSAT Fiber Networks, Inc. (the
“Company”) pursuant to Section 8 of the Company’s Restated Certificate of
Incorporation.


          The undersigned hereby certifies that:



	 	        (a)    In connection with the plan of reorganization of the Company (the “Plan”), it
received Series A 6% Guaranteed Convertible Notes due 2011 of the Company (the
“Notes”); and
	 
	 	        (b)    As
of [      ],1 the undersigned and its affiliates beneficially owned                          shares
of Common Stock, par value $0.01 (the “Common Stock”), of the
Company that were issued upon conversion of Notes received pursuant to the
Plan, and $     in principal amount of Notes received pursuant to the Plan
that are beneficially owned by the under-signed and its affiliates.



          For purposes of this certificate, “beneficial ownership” shall be
determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended, and “affiliate” shall be defined as set forth in Rule 144
under the Securities Act of 1933, as amended.

Holders who are able to make the above certification should complete this
certificate and send it to the Company (1) by mail to IMPSAT Fiber Networks,
Inc., Elvira Rawson de Dellepiane 150, 8th Floor, C1107BCA, Buenos Aires,
Argentina, Attention: Chief Financial Officer or (2) by facsimile to IMPSAT
Fiber Network, Inc., Facsimile No. 5411-5170-3518, Attention: Chief Financial
Officer.


In order for you to have the ability to elect directors of the Company, this
completed certificate must be received by the Company within 15 days of the
date set forth in paragraph (b).