exv4w5






Exhibit 4.5




           





Leap Wireless International, Inc.




Cricket Communications, Inc., as a Guarantor




Cricket Licensee I, LLC, as a Guarantor




Cricket Licensee (Reauction), LLC, as a Guarantor




Cricket Licensee 2007, LLC, as a Guarantor




INDENTURE




Dated as of [                         ]




[                     ]




Trustee




           






 









 








TABLE OF CONTENTS




	 	 	 
	 	 	Page
	ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE 
	 	1
	Section 1.1.  Definitions
	 	1
	Section 1.2.  Other Definitions
	 	5
	Section 1.3.  Incorporation by Reference of Trust Indenture Act
	 	5
	Section 1.4.  Rules of Construction
	 	6
	 
	 	 
	ARTICLE II. THE SECURITIES 
	 	6
	Section 2.1.  Issuable in Series
	 	6
	Section 2.2.  Establishment of Terms of Series of Securities
	 	6
	Section 2.3.  Execution and Authentication
	 	9
	Section 2.4.  Registrar and Paying Agent
	 	10
	Section 2.5.  Paying Agent to Hold Money in Trust
	 	10
	Section 2.6.  Securityholder Lists
	 	11
	Section 2.7.  Transfer and Exchange
	 	11
	Section 2.8.  Mutilated, Destroyed, Lost and Stolen Securities
	 	11
	Section 2.9.  Outstanding Securities
	 	12
	Section 2.10.  Treasury Securities
	 	13
	Section 2.11.  Temporary Securities
	 	13
	Section 2.12.  Cancellation
	 	13
	Section 2.13.  Defaulted Interest
	 	13
	Section 2.14.  Global Securities
	 	13
	Section 2.15.  CUSIP Numbers
	 	15
	 
	 	 
	ARTICLE III. REDEMPTION 
	 	15
	Section 3.1.  Notice to Trustee
	 	15
	Section 3.2.  Selection of Securities to be Redeemed
	 	15
	Section 3.3.  Notice of Redemption
	 	15
	Section 3.4.  Effect of Notice of Redemption
	 	16
	Section 3.5.  Deposit of Redemption Price
	 	16
	Section 3.6.  Securities Redeemed in Part
	 	16
	 
	 	 
	ARTICLE IV. COVENANTS 
	 	17
	Section 4.1.  Payment of Principal and Interest
	 	17
	Section 4.2.  SEC Reports
	 	17
	Section 4.3.  Compliance Certificate
	 	17
	Section 4.4.  Stay, Extension and Usury Laws
	 	17
	Section 4.5.  Corporate Existence
	 	18
	 
	 	 
	ARTICLE V. SUCCESSORS 
	 	18
	Section 5.1.  When Company May Merge, Etc.
	 	18
	Section 5.2.  Successor Corporation Substituted
	 	18






i









 






	 	 	 
	 	 	Page
	ARTICLE VI. DEFAULTS AND REMEDIES 
	 	19
	Section 6.1.  Events of Default
	 	19
	Section 6.2.  Acceleration of Maturity; Rescission and Annulment
	 	20
	Section 6.3.  Collection of Indebtedness and Suits for Enforcement by Trustee
	 	21
	Section 6.4.  Trustee May File Proofs of Claim
	 	21
	Section 6.5.  Trustee May Enforce Claims Without Possession of Securities
	 	22
	Section 6.6.  Application of Money Collected
	 	22
	Section 6.7.  Limitation on Suits
	 	23
	Section 6.8.  Unconditional Right of Holders to Receive Principal and Interest
	 	23
	Section 6.9.  Restoration of Rights and Remedies
	 	23
	Section 6.10.  Rights and Remedies Cumulative
	 	24
	Section 6.11.  Delay or Omission Not Waiver
	 	24
	Section 6.12.  Control by Holders
	 	24
	Section 6.13.  Waiver of Past Defaults
	 	24
	Section 6.14.  Undertaking for Costs
	 	25
	 
	 	 
	ARTICLE VII. TRUSTEE 
	 	25
	Section 7.1.  Duties of Trustee
	 	25
	Section 7.2.  Rights of Trustee
	 	26
	Section 7.3.  Individual Rights of Trustee
	 	27
	Section 7.4.  Trustee’s Disclaimer
	 	27
	Section 7.5.  Notice of Defaults
	 	27
	Section 7.6.  Reports by Trustee to Holders
	 	28
	Section 7.7.  Compensation and Indemnity
	 	28
	Section 7.8.  Replacement of Trustee
	 	29
	Section 7.9.  Successor Trustee by Merger, etc.
	 	30
	Section 7.10.  Eligibility; Disqualification
	 	30
	Section 7.11.  Preferential Collection of Claims Against Company
	 	30
	 
	 	 
	ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE 
	 	30
	Section 8.1.  Satisfaction and Discharge of Indenture
	 	30
	Section 8.2.  Application of Trust Funds; Indemnification
	 	31
	Section 8.3.  Legal Defeasance of Securities of any Series
	 	32
	Section 8.4.  Covenant Defeasance
	 	33
	Section 8.5.  Repayment to Company
	 	35
	Section 8.6.  Reinstatement
	 	35
	 
	 	 
	ARTICLE IX. AMENDMENTS AND WAIVERS 
	 	35
	Section 9.1.  Without Consent of Holders
	 	35
	Section 9.2.  With Consent of Holders
	 	36
	Section 9.3.  Limitations
	 	36
	Section 9.4.  Compliance with Trust Indenture Act
	 	37
	Section 9.5.  Revocation and Effect of Consents
	 	37
	Section 9.6.  Notation on or Exchange of Securities
	 	37
	Section 9.7.  Trustee Protected
	 	38






ii









 






	 	 	 
	 	 	Page
	ARTICLE X. MISCELLANEOUS 
	 	38
	Section 10.1.  Trust Indenture Act Controls
	 	38
	Section 10.2.  Notices
	 	38
	Section 10.3.  Communication by Holders with Other Holders
	 	39
	Section 10.4.  Certificate and Opinion as to Conditions Precedent
	 	39
	Section 10.5.  Statements Required in Certificate or Opinion
	 	39
	Section 10.6.  Rules by Trustee and Agents
	 	40
	Section 10.7.  Legal Holidays
	 	40
	Section 10.8.  No Recourse Against Others
	 	40
	Section 10.9.  Counterparts
	 	40
	Section 10.10.  Governing Laws
	 	40
	Section 10.11.  No Adverse Interpretation of Other Agreements
	 	41
	Section 10.12.  Successors
	 	41
	Section 10.13.  Severability
	 	41
	Section 10.14.  Table of Contents, Headings, Etc
	 	41
	Section 10.15.  Securities in a Foreign Currency or in ECU
	 	41
	Section 10.16.  Judgment Currency
	 	42
	 
	 	 
	ARTICLE XI. SINKING FUNDS 
	 	42
	Section 11.1.  Applicability of Article
	 	42
	Section 11.2.  Satisfaction of Sinking Fund Payments with Securities
	 	43
	Section 11.3.  Redemption of Securities for Sinking Fund
	 	43
	 
	 	 
	ARTICLE XII. GUARANTEE 
	 	44
	Section 12.1.  Unconditional Guarantee
	 	44
	Section 12.2.  Execution and Delivery of Notation of Guarantee
	 	45
	Section 12.3.  Limitation on Guarantors’ Liability
	 	45
	Section 12.4.  Release of Guarantors from Guarantee
	 	45
	Section 12.5.  Mutilated, Destroyed, Lost and Stolen Notations of Guarantee
	 	46






EXHIBITS




Exhibit A Form of Notation of Guarantee





iii









 








LEAP WIRELESS INTERNATIONAL, INC.




Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of [           ]




	 	 	 	 	 
	§ 310(a)(1)
	 	 	 	7.10
	(a)(2)
	 	 	 	7.10
	(a)(3)
	 	 	 	Not Applicable
	(a)(4)
	 	 	 	Not Applicable
	(a)(5)
	 	 	 	7.10
	(b)
	 	 	 	7.10
	§ 311(a)
	 	 	 	7.11
	(b)
	 	 	 	7.11
	(c)
	 	 	 	Not Applicable
	§ 312(a)
	 	 	 	2.6
	(b)
	 	 	 	10.3
	(c)
	 	 	 	10.3
	§ 313(a)
	 	 	 	7.6
	(b)(1)
	 	 	 	7.6
	(b)(2)
	 	 	 	7.6
	(c)(1)
	 	 	 	7.6
	(d)
	 	 	 	7.6
	§ 314(a)
	 	 	 	4.2, 10.5
	(b)
	 	 	 	Not Applicable
	(c)(1)
	 	 	 	10.4
	(c)(2)
	 	 	 	10.4
	(c)(3)
	 	 	 	Not Applicable
	(d)
	 	 	 	Not Applicable
	(e)
	 	 	 	10.5
	(f)
	 	 	 	Not Applicable
	§ 315(a)
	 	 	 	7.1
	(b)
	 	 	 	7.5
	(c)
	 	 	 	7.1
	(d)
	 	 	 	7.1
	(e)
	 	 	 	6.14
	§ 316(a)
	 	 	 	2.10
	(a)(1)(A)
	 	 	 	6.12
	(a)(1)(B)
	 	 	 	6.13
	(b)
	 	 	 	6.8
	§ 317(a)(1)
	 	 	 	6.3
	(a)(2)
	 	 	 	6.4
	(b)
	 	 	 	2.5
	§ 318(a)
	 	 	 	10.1








 




			
	Note:	 	This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.





iv









 





          Indenture dated as of [          ] between Leap Wireless International, Inc., a Delaware
corporation (“Company”), the Guarantors (as defined herein) party hereto and [      ]
(“Trustee”).




          Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture.




ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.1.  Definitions.



          “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.




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




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




          “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.




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




          “Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal
holiday in The City of New York on which banking institutions are authorized or required by law,
regulation or executive order to close.




          “Capital Stock” means any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock.




          “Company” means the party named as such above until a successor replaces it and thereafter
means the successor.




 









 








          “Company Order” means a written order signed in the name of the Company by two Officers, one
of whom must be the Company’s principal executive officer, principal financial officer or principal
accounting officer.




          “Company Request” means a written request signed in the name of the Company by its Chief
Executive Officer, the President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.




          “continuing” means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.




          “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered.




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




          “Depositary” means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the person designated as Depositary for
such Series by the Company, which Depositary shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, “Depositary” as used with
respect to the Securities of any Series shall mean the Depositary with respect to the Securities of
such Series.




          “Discount Security” means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.




          “Dollars” and “$” means the currency of The United States of America.




          “ECU” means the European Currency Unit as determined by the Commission of the European Union.




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




          “Foreign Currency” means any currency or currency unit issued by a government other than the
government of The United States of America.




          “Foreign Government Obligations” means, with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer thereof.




          “GAAP” means accounting principles generally accepted in the United States of America set
forth in the opinions and pronouncements of the Accounting Principles Board of the



2









 






American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in effect from time to
time.




          “Global Security” or “Global Securities” means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depositary for such Series or its nominee, and registered in the name of such
Depositary or nominee.




          “Guarantor” means each person that executes this Indenture as a guarantor and its respective
successors and assigns, in each case until the Guarantee of such person has been released in
accordance with the provisions of this Indenture; provided, however that such
person shall be a Guarantor only with respect to a Series of Securities for which such person has
executed a Notation of Guarantee with respect to such Series.




          “Holder” or “Securityholder” means a person in whose name a Security is registered.




          “Indenture” means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Securities established as contemplated
hereunder.




          “interest” with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.




          “Maturity,” when used with respect to any Security, means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.




          “Notation of Guarantee” means a notation, substantially in the form of Exhibit A, executed by
a Guarantor and affixed to each Security of any Series to which the Guarantee of such Guarantor
under Article XII of this Indenture applies.




          “Officer” means the Chief Executive Officer, President, any Vice-President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.




          “Officers’ Certificate” means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal accounting officer.




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




          “person” means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.




3









 








          “principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.




          “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other officer to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with a particular
subject.




          “SEC” means the Securities and Exchange Commission.




          “Securities” means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.




          “Series” or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.




          “Stated Maturity” when used with respect to any Security, means the date specified in such
Security as the fixed date on which the principal of such Security or interest is due and payable.




          “Subsidiary” of any specified person means any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other Subsidiaries of that person or a combination thereof.




          “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the
date of this Indenture; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.




          “Trustee” means the person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee
hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to
the Securities of any Series shall mean the Trustee with respect to Securities of that Series.




          “U.S. Government Obligations” means securities which 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, and which in the case of (i) and (ii) are not callable
or redeemable at the option of the issuer thereof, 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



4









 






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 evidenced by such depository
receipt.




     Section 1.2.  Other Definitions.



	 	 	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	“Bankruptcy Law”
	 	 	6.1	 
	“Custodian”
	 	 	6.1	 
	“Event of Default”
	 	 	6.1	 
	“Guarantee”
	 	 	14.1	 
	“Journal”
	 	 	10.15	 
	“Judgment Currency”
	 	 	10.16	 
	“Legal Holiday”
	 	 	10.7	 
	“mandatory sinking fund payment”
	 	 	11.1	 
	“Market Exchange Rate”
	 	 	10.15	 
	“New York Banking Day”
	 	 	10.16	 
	“optional sinking fund payment”.
	 	 	11.1	 
	“Paying Agent”
	 	 	2.4	 
	“Registrar”
	 	 	2.4	 
	“Required Currency”
	 	 	10.16	 
	“Service Agent”
	 	 	2.4	 
	“successor person”
	 	 	5.1	 






     Section 1.3.  Incorporation by Reference of Trust Indenture Act.



          Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:




          “Commission” means the SEC.




          “indenture securities” means the Securities.




          “indenture security holder” means a Securityholder.




          “indenture to be qualified” means this Indenture.




          “indenture trustee” or “institutional trustee” means the Trustee.




          “obligor” on the indenture securities means the Company and any successor
obligor upon the Securities.




          All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.




5









 








     Section 1.4.  Rules of Construction.



          Unless the context otherwise requires:





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




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




     (c)    “or” is not exclusive;




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




     (e)    provisions apply to successive events and transactions.



ARTICLE II.

THE SECURITIES




     Section 2.1.  Issuable in Series.



          The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities
of a Series shall be identical except as may be set forth or determined in the manner provided in a
Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption of the
terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of
a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or
supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted
under a Board Resolution may provide for the method by which specified terms (such as interest
rate, maturity date, record date or date from which interest shall accrue) are to be determined.
Securities may differ between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of this Indenture.




     Section 2.2.  Establishment of Terms of Series of Securities.



          At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such
Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through
2.2.24) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in
a Board Resolution, supplemental indenture or Officers’ Certificate:




          2.2.1.     the title of the Series (which shall distinguish the Securities of that particular
Series from the Securities of any other Series);




          2.2.2.     the price or prices (expressed as a percentage of the principal amount thereof) at
which the Securities of the Series will be issued;




6









 








          2.2.3.     any limit upon the aggregate principal amount of the Securities of the Series which
may be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);




          2.2.4.     the date or dates on which the principal of the Securities of the Series is
payable;




          2.2.5.     the rate or rates (which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the
date or dates on which such interest, if any, shall commence and be payable and any regular record
date for the interest payable on any interest payment date;




          2.2.6.     the place or places where the principal of and interest, if any, on the Securities
of the Series shall be payable, where the Securities of such Series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means;




          2.2.7.     if applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in
part, at the option of the Company;




          2.2.8.     the obligation, if any, of the Company to redeem or purchase the Securities of the
Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;




          2.2.9.     the dates, if any, on which and the price or prices at which the Securities of the
Series will be repurchased by the Company at the option of the Holders thereof and other detailed
terms and provisions of such repurchase obligations;




          2.2.10.     if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be issuable;




          2.2.11.     the forms of the Securities of the Series and whether the Securities will be
issuable as Global Securities;




          2.2.12.     if other than the principal amount thereof, the portion of the principal amount of
the Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2;




          2.2.13.     the currency of denomination of the Securities of the Series, which may be Dollars
or any Foreign Currency, including, but not limited to, the ECU, and if such



7









 






currency of denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite currency;




          2.2.14.     the designation of the currency, currencies or currency units in which payment of
the principal of and interest, if any, on the Securities of the Series will be made;




          2.2.15.     if payments of principal of or interest, if any, on the Securities of the Series
are to be made in one or more currencies or currency units other than that or those in which such
Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;




          2.2.16.     the manner in which the amounts of payment of principal of or interest, if any, on
the Securities of the Series will be determined, if such amounts may be determined by reference to
an index based on a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;




          2.2.17.     the provisions, if any, relating to any security provided for the Securities of
the Series or the Guarantees;




          2.2.18.     any addition to or change in the Events of Default which applies to any Securities
of the Series and any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;




          2.2.19.     any addition to or change in the covenants set forth in Articles IV or V hereof
which applies to Securities of the Series;




          2.2.20.     any other terms of the Securities of the Series (which may supplement, modify or
delete any provision of this Indenture insofar as it applies to such Series);




          2.2.21.     any depositaries, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other than those appointed
herein;




          2.2.22.     the provisions, if any, relating to conversion of any Securities of such Series,
including if applicable, the conversion price, the conversion period, provisions as to whether
conversion will be mandatory, at the option of the Holders thereof or at the option of the Company,
the events requiring an adjustment of the conversion price and provisions affecting conversion if
such Series of Securities are redeemed;




          2.2.23.     whether the Securities of such Series will be senior debt securities or
subordinated debt securities and, if applicable, a description of the subordination terms thereof;
and




          2.2.24.     whether the Securities of such Series are entitled to the benefits of the
Guarantee of any Guarantor pursuant to this Indenture, whether any such Guarantee shall be made on
a senior or subordinated basis and, if applicable, a description of the subordination terms of any
such Guarantee.




8









 








          All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above.




     Section 2.3.  Execution and Authentication.



          An Officer shall sign the Securities for the Company by manual or facsimile signature.




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




          A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.




          The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in
writing. Each Security shall be dated the date of its authentication unless otherwise provided by
a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.




          The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section
2.2, except as provided in Section 2.8.




          Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers’ Certificate complying with Section 10.4, and (c)
an Opinion of Counsel complying with Section 10.4.




          The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities.




          The Trustee may appoint an authenticating agent acceptable to the Company 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



9









 






authentication by such agent. An authenticating agent has the same rights as an Agent to deal
with the Company or an Affiliate of the Company.




     Section 2.4.  Registrar and Paying Agent.



          The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of
such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where
notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any
such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with
the name and address thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.




          The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in
each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of any such co-registrar, additional paying agent or
additional service agent. The term “Registrar” includes any co-registrar; the term “Paying Agent”
includes any additional paying agent; and the term “Service Agent” includes any additional service
agent.




          The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent
for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.




     Section 2.5.  Paying Agent to Hold Money in Trust.



          The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or
interest on the Series of Securities, and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary of the Company) shall have no further liability for the
money. If the Company or a Subsidiary of the Company acts as Paying



10









 






Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders
of any Series of Securities all money held by it as Paying Agent.




     Section 2.6.  Securityholder Lists.



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




     Section 2.7.  Transfer and Exchange.



          Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).




          Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Securities of any Series for the period beginning at the opening of business
fifteen days immediately preceding the mailing of a notice of redemption of Securities of that
Series selected for redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.




     Section 2.8.  Mutilated, Destroyed, Lost and Stolen Securities.



          If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.




          If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.




11









 








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




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




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




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




     Section 2.9.  Outstanding Securities.



          The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest on a Global Security effected by the Trustee in accordance with the provisions hereof and
those described in this Section as not outstanding.




          If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.




          If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
the Company) holds on the Maturity of Securities of a Series money sufficient to pay such
Securities payable on that date, then on and after that date such Securities of the Series cease to
be outstanding and interest on them ceases to accrue.




          A Security does not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.




          In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.




12









 








     Section 2.10.  Treasury Securities.



          In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver,
Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver only Securities of a
Series that the Trustee knows are so owned shall be so disregarded.




     Section 2.11.  Temporary Securities.



          Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged, temporary
securities shall have the same rights under this Indenture as the definitive Securities.




     Section 2.12.  Cancellation.



          The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act) and deliver a
certificate of such destruction to the Company, unless the Company otherwise directs. The Company
may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for
cancellation.




     Section 2.13.  Defaulted Interest.



          If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Securityholders of the Series on a subsequent special record date.
The Company shall fix the record date and payment date. At least 10 days before the record date,
the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states
the record date, the payment date and the amount of interest to be paid. The Company may pay
defaulted interest in any other lawful manner.




     Section 2.14.  Global Securities.



          2.14.1.     Terms of Securities. A Board Resolution, a supplemental indenture hereto
or an Officers’ Certificate shall establish whether the Securities of a Series shall be issued in
whole or in part in the form of one or more Global Securities and the Depositary for such Global
Security or Securities.




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          2.14.2.     Transfer and Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.7 of this Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of this Indenture for Securities registered in the names of
Holders other than the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered
as a clearing agency under the Exchange Act within 90 days of such event or (ii) the Company
executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global
Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names as the Depositary
shall direct in writing in an aggregate principal amount equal to the principal amount of the
Global Security with like tenor and terms.




          Except as provided in this Section 2.14.2, a Global Security may not be transferred except as
a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by
a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary.




          2.14.3.     Legend. Any Global Security issued hereunder shall bear a legend in
substantially the following form:




          “This Security is a Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of the Depositary or a nominee of the Depositary. This Security
is exchangeable for Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture, and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such a successor Depositary.”




          2.14.4.     Acts of Holders. The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under this
Indenture.




          2.14.5.     Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof.




          2.14.6.     Consents, Declaration and Directions. Except as provided in Section
2.14.5, the Company, the Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global Security as shall be
specified in a written statement of the Depositary with respect to such Global Security, for
purposes of obtaining any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.




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     Section 2.15.  CUSIP Numbers.



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




ARTICLE III.

REDEMPTION




     Section 3.1.  Notice to Trustee.



          The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the
terms of such Securities, it shall notify the Trustee of the redemption date and the principal
amount of Series of Securities to be redeemed. The Company shall give the notice at least 30 days
before the redemption date (or such shorter notice as may be acceptable to the Trustee).




     Section 3.2.  Selection of Securities to be Redeemed.



          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be redeemed on a pro rata basis
(or, in the case of Global Securities based on a method that most nearly approximates a pro rata
selection as the Trustee deems fair and appropriate) unless otherwise required by law or applicable
stock exchange or depositary requirements. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2.10, the minimum principal denomination for each Series and integral
multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for redemption.




     Section 3.3.  Notice of Redemption.



          Unless otherwise indicated for a particular Series by Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, at least 15 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.




15









 








          The notice shall identify the Securities of the Series 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 of the Series called for redemption must be surrendered to the
Paying Agent to collect the redemption price;




     (e)    that interest on Securities of the Series called for redemption ceases to accrue
on and after the redemption date;




     (f)    the CUSIP number, if any; and




     (g)    any other information as may be required by the terms of the particular Series
or the Securities of a Series being redeemed.



          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense.




     Section 3.4.  Effect of Notice of Redemption.



          Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. Unless otherwise set forth in the Board Resolution, supplemental indenture or Officers’
Certificate for the applicable Series of Securities, a notice of redemption pertaining to such
Series may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid
at the redemption price plus accrued interest to the redemption date.




     Section 3.5.  Deposit of Redemption Price.



          On or before 10:00 a.m., New York City time, on the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any,
on all Securities to be redeemed on that date.




     Section 3.6.  Securities Redeemed in Part.



          Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.




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ARTICLE IV.

COVENANTS




     Section 4.1.  Payment of Principal and Interest.



          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will duly and punctually pay the principal of and interest, if any, on the Securities of
that Series in accordance with the terms of such Securities and this Indenture.




     Section 4.2.  SEC Reports.



          The Company shall, so long as any Securities are outstanding, deliver to the Trustee within 15
days after it files them with the SEC (unless already publicly available through the SEC’s EDGAR
Filing System) copies of the annual reports and of the information, documents, and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a).




     Section 4.3.  Compliance Certificate.



          The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers’ Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company and any Guarantor has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his/her knowledge the Company and any
Guarantor has kept, observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge).




          The Company will, so long as any of the Securities are outstanding, deliver to the Trustee,
promptly upon becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.




     Section 4.4.  Stay, Extension and Usury Laws.



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



17









 






or impede the execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law has been enacted.




     Section 4.5.  Corporate Existence.



          Subject to Article V, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and rights (charter and statutory);
provided, however, that the Company shall not be required to preserve any such
right if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and
that the loss thereof is not adverse in any material respect to the Holders.




ARTICLE V.

SUCCESSORS




     Section 5.1.  When Company May Merge, Etc.



          The Company shall not consolidate with or merge with or into, or convey, transfer or lease all
or substantially all of its properties and assets to, any person (a “successor person”) unless:





     (a)    the Company is the surviving corporation or the successor person (if other than
the Company) is a corporation organized and validly existing under the laws of any U.S.
domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and
under this Indenture;




     (b)    immediately after giving effect to the transaction, no Default or Event of
Default, shall have occurred and be continuing; and




     (c)    if the Company is not the successor person, then each Guarantor, unless it has
become the successor person, shall confirm that its Guarantee shall continue to apply to the
obligations under the Securities and this Indenture to the same extent as prior to such
merger, conveyance, transfer or lease, as applicable.



          The Company shall deliver to the Trustee prior to the consummation of the proposed transaction
an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and any supplemental indenture hereto complies with this Indenture.




          Notwithstanding the above, any Subsidiary of the Company may consolidate with, merge into or
transfer all or part of its properties to the Company. Neither an Officers’ Certificate nor an
Opinion of Counsel shall be required to be delivered in connection therewith.




     Section 5.2.  Successor Corporation Substituted.



          Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company in accordance with Section 5.1, the successor
corporation formed by such consolidation or into or with which the Company is



18









 






merged or to which such sale, lease, conveyance or other disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor person has been named as the Company herein;
provided, however, that the predecessor Company in the case of a sale, conveyance
or other disposition (other than a lease) shall be released from all obligations and covenants
under this Indenture and the Securities.




ARTICLE VI.

DEFAULTS AND REMEDIES




     Section 6.1.  Events of Default.



          “Event of Default,” wherever used herein with respect to Securities of any Series, means any
one of the following events, unless in the establishing Board Resolution, supplemental indenture
hereto or Officers’ Certificate, it is provided that such Series shall not have the benefit of said
Event of Default:





     (a)    default in the payment of any interest on any Security of that Series when it
becomes due and payable, and continuance of such default for a period of 30 days (unless the
entire amount of such payment is deposited by the Company with the Trustee or with a Paying
Agent prior to the expiration of such period of 30 days); or




     (b)    default in the payment of principal of any Security of that Series at its
Maturity; or




     (c)    default in the performance or breach of any covenant or warranty of the Company
in this Indenture or any Security (other than a covenant or warranty that has been included
in this Indenture solely for the benefit of Series of Securities other than that Series),
which default continues uncured for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of
that Series a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or




     (d)    the Company pursuant to or within the meaning of any Bankruptcy Law:




     (i) commences a voluntary case,




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




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




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




     (v) generally is unable to pay its debts as the same become due; or



19









 






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




    (i) is for relief against the Company in an involuntary case,




    (ii) appoints a Custodian of the Company or for all or substantially all of its
property, or




    (iii) orders the liquidation of the Company,




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




     (f)    any other Event of Default provided with respect to Securities of that Series,
which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.2.18.



          The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.




     Section 6.2.  Acceleration of Maturity; Rescission and Annulment.



          If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing (other than an Event of Default referred to in Section 6.1(d) or (e)) then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if any Securities of
that Series are Discount Securities, such portion of the principal amount as may be specified in
the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities
of that Series to be due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an
Event of Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified
amount) of and accrued and unpaid interest, if any, on all outstanding Securities 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.




          At any time after such a declaration of acceleration with respect to any Series has been made
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal amount of the
outstanding Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if all Events of Default with respect to
Securities of that Series, other than the non-payment of the principal and interest, if any, of
Securities of that Series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.13.




          No such rescission shall affect any subsequent Default or impair any right consequent thereon.




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     Section 6.3.  Collection of Indebtedness and Suits for Enforcement by Trustee.




     The Company covenants that if:




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




     (b)    default is made in the payment of principal of any Security at the Maturity
thereof, or




     (c)    default is made in the deposit of any sinking fund payment when and as due by
the terms of a Security,


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




          If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company, any Guarantor or any other obligor upon such Securities and
collect the moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company, any Guarantor or any other obligor upon such Securities, wherever
situated.




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




     Section 6.4.  Trustee May File Proofs of Claim.



          In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,




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     (a)    to file and prove a claim for the whole amount of principal and interest owing
and unpaid in respect of the Securities and to file such 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 of the Holders allowed in such judicial proceeding, and




     (b)    to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same,


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7.




          Nothing contained in this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the 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 6.5.  Trustee May Enforce Claims Without Possession of Securities.



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




     Section 6.6.  Application of Money Collected.



          Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:




          First: To the payment of all amounts due the Trustee under Section 7.7; and




          Second: To the payment of the amounts then due and unpaid for principal of 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 and interest, respectively; and




          Third: To the Company or the Guarantors, as applicable.




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     Section 6.7.   Limitation on Suits.



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





     (a)    such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that Series;




     (b)    the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;




     (c)    such Holder or Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with such request;




     (d)    the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (e)    no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal amount of the
outstanding Securities of that Series;


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




     Section 6.8.  Unconditional Right of Holders to Receive Principal and Interest.



          Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and
interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.




     Section 6.9.  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 Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.




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     Section 6.10.  Rights and Remedies Cumulative.



          Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.8, 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,
to the extent permitted by law, prevent the concurrent assertion or employment of any other
appropriate right or remedy.




     Section 6.11.  Delay or Omission Not Waiver.



          No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee 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.




     Section 6.12.  Control by Holders.



          The Holders of a majority in principal amount of the outstanding Securities of any Series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such Series; provided that:





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




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




     (c)    subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a Responsible
Officer of the Trustee, determine that the proceeding so directed would involve the Trustee
in personal liability.



     Section 6.13.  Waiver of Past Defaults.



          The Holders of not less than a majority in principal amount of the outstanding Securities of
any Series may on behalf of the Holders of all the Securities of such Series waive any past Default
hereunder with respect to such Series and its consequences, except a Default in the payment of the
principal of or interest on any Security of such Series (provided, however, that the Holders of a
majority in principal amount of the outstanding Securities of any Series may rescind an
acceleration and its consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this



24









 






Indenture; but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.




     Section 6.14.  Undertaking for Costs.



          All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Company,
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the outstanding Securities of any
Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal
of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).




ARTICLE VII.

TRUSTEE




     Section 7.1.  Duties of Trustee.




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




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




     (i) The Trustee need perform only those duties that are specifically set forth
in this Indenture and no others.




     (ii) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to
the Trustee and conforming to the requirements of this Indenture; however,
in the case of any such Officers’ Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such Officers’ Certificates and Opinions of Counsel to
determine whether or not they conform to the requirements of this Indenture.



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




25









 









     (i) This paragraph does not limit the effect of paragraph (b) of this Section.




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




     (iii) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of any Series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such Series 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 with respect to the Securities of such Series.




     (d)    Every provision of this Indenture that in any way relates to the Trustee is
subject to paragraph (a), (b) and (c) of this Section.




     (e)    The Trustee may refuse to perform any duty or exercise any right or power unless
it receives indemnity satisfactory to it against any loss, liability or expense.




     (f)    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.




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




     (h)    The Paying Agent, the Registrar and any authenticating agent shall be entitled
to the protections, immunities and standard of care as are set forth in paragraphs (a), (b)
and (c) of this Section with respect to the Trustee.



     Section 7.2.  Rights of Trustee.




     (a)    The Trustee may rely on and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated in the
document.




     (b)    Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel.



26









 






     (c)    The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care. No Depositary shall be
deemed an agent of the Trustee and the Trustee shall not be responsible for any act or
omission by any Depositary.




     (d)    The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers, provided that the
Trustee’s conduct does not constitute negligence or bad faith.




     (e)    The Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder without negligence and in good faith and
in reliance thereon.




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




     (g)    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.




     (h)    The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Securities
generally or the Securities of a particular Series and this Indenture.



     Section 7.3.  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 or an Affiliate of the Company with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights. The
Trustee is also subject to Sections 7.10 and 7.11.




     Section 7.4.  Trustee’s Disclaimer.



          The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its authentication.




     Section 7.5.  Notice of Defaults.



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          If a Default or Event of Default occurs and is continuing with respect to the Securities of
any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Securityholder of the Securities of that Series notice of a Default or Event of Default within
90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of Default in payment
of principal of or interest on any Security of any Series, the Trustee may withhold the notice if
and so long as its corporate trust committee or a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Securityholders of that Series.




     Section 7.6.  Reports by Trustee to Holders.



          Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief
report dated as of such May 15, in accordance with, and to the extent required under, TIA § 313.




          A copy of each report at the time of its mailing to Securityholders of any Series shall be
filed with the SEC and each stock exchange on which the Securities of that Series are listed. The
Company shall promptly notify the Trustee when Securities of any Series are listed on any stock
exchange.




     Section 7.7.  Compensation and Indemnity.



          The Company shall pay to the Trustee from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out of pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and
counsel.




          The Company shall indemnify each of the Trustee and any predecessor Trustee (including the
cost of defending itself) against any loss, liability or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee) incurred by it except as set
forth in the next paragraph in the performance of its duties under this Indenture as Trustee or
Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee
may have one separate counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.




          The Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
negligence or bad faith.




          To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Securities of any Series on all money or property held or collected by the



28









 






Trustee, except that held in trust to pay principal of and interest on particular Securities
of that Series.




          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(d) or (e) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.




          The provisions of this Section shall survive the termination of this Indenture.




     Section 7.8. 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.




          The Trustee may resign with respect to the Securities of one or more Series by so notifying
the Company at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with
respect to Securities of one or more Series if:





     (a)    the Trustee fails to comply with Section 7.10;




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




     (c)    a Custodian or public officer takes charge of the Trustee or its property; or




     (d)    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 then
outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.




          If a successor Trustee with respect to the Securities of any one or more Series does not take
office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least a majority in principal amount of the Securities of the
applicable Series 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 that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject to the lien provided for in Section
7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of
Securities for which it is acting as Trustee under this Indenture. A successor Trustee



29









 






shall mail a notice of its succession to each Securityholder of each such Series.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations
under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to
expenses and liabilities incurred by it prior to such replacement.




     Section 7.9.  Successor Trustee by Merger, etc.



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




     Section 7.10.  Eligibility; Disqualification.



          This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee shall always have a combined capital and surplus of at least $100,000,000
as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA § 310(b).




     Section 7.11.  Preferential Collection of Claims Against Company.



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




ARTICLE VIII.

SATISFACTION AND DISCHARGE; DEFEASANCE




     Section 8.1.  Satisfaction and Discharge of Indenture.



          This Indenture shall upon Company Order cease to be of further effect (except as hereinafter
provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when





     (a)    either:




     (i) all Securities theretofore authenticated and delivered (other than
Securities that have been destroyed, lost or stolen and that have been replaced or
paid) have been delivered to the Trustee for cancellation; or




     (ii) all such Securities not theretofore delivered to the Trustee for
cancellation




     (1) have become due and payable, or




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



30









 






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




     (4) are deemed paid and discharged pursuant to Section 8.3, as
applicable;


and the Company, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying
and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;





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




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



          Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5
shall survive.




          If the Company exercises the satisfaction and discharge provisions in compliance with this
Indenture with respect to Securities of a particular Series that are entitled to the benefit of the
Guarantee of any Guarantor, the Guarantee will terminate with respect to that series of Securities.




     Section 8.2.  Application of Trust Funds; Indemnification.




     (a)    Subject to the provisions of Section 8.5, all money deposited with the Trustee
pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received
by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with or received by
the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated
by Sections 8.3 or 8.4.




     (b)    The Company shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations or



31









 






Foreign Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the
interest and principal received in respect of such obligations other than any payable by or
on behalf of Holders.




     (c)    The Trustee shall deliver or pay to the Company from time to time upon Company
Request any U.S. Government Obligations or Foreign Government Obligations or money held by
it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such U.S. Government Obligations or
Foreign Government Obligations or money were deposited or received. This provision shall
not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign
Government Obligations held under this Indenture.



     Section 8.3.  Legal Defeasance of Securities of any Series.



          Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2.20, to be inapplicable
to Securities of any Series, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates
to such outstanding Securities of such Series, shall no longer be in effect and any Guarantee will
terminate with respect to that Series of Securities (and the Trustee, at the expense of the
Company, shall, at Company Request, execute proper instruments acknowledging the same), except as
to:





     (a)    the rights of Holders of Securities of such Series to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal of and each
installment of principal of and interest on the outstanding Securities of such Series on the
Stated Maturity of such principal or installment of principal or interest and (ii) the
benefit of any mandatory sinking fund payments applicable to the Securities of such Series
on the day on which such payments are due and payable in accordance with the terms of this
Indenture and the Securities of such Series;




     (b)    the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and




     (c)    the rights, powers, trust and immunities of the Trustee hereunder;


provided that, the following conditions shall have been satisfied:





     (d)    the Company shall have deposited or caused to be irrevocably deposited (except
as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and dedicated solely to
the benefit of the Holders of such Securities (i) in the case of Securities of such Series
denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the
case of Securities of such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the payment of
interest and principal in respect thereof in



32









 




accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, 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 each installment of principal of and
interest, if any, on and any mandatory sinking fund payments in respect of all the
Securities of such Series on the dates such installments of interest or principal and such
sinking fund payments are due;





     (e)    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 is a
party or by which it is bound;




     (f)    no Default or Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;




     (g)    the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel to the effect that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be
subject to 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, defeasance and discharge had not
occurred;




     (h)    the Company shall have 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
the Securities of such Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company; and




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



     Section 8.4.  Covenant Defeasance.



          Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.20 to be inapplicable
to Securities of any Series, the Company may omit to comply with respect to the Securities of any
Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, and 5.1
as well as any additional covenants specified in a supplemental indenture for such Series of
Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.2.20
(and the failure to comply with any such covenants shall not constitute a Default or Event of
Default with respect to such Series under Section 6.1) and the occurrence of any



33









 






event specified in a supplemental indenture for such Series of Securities or a Board
Resolution or an Officers’ Certificate delivered pursuant to Section 2.2.18 and designated as an
Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, provided that the following conditions shall have been satisfied:





     (a)    With reference to this Section 8.4, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds
in trust for the purpose of making the following payments specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case
of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government
Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof in accordance with
their terms, will provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal of and
interest, if any, on and any mandatory sinking fund payments in respect of the Securities of
such Series on the dates such installments of interest or principal and such sinking fund
payments are due;




     (b)    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 is a
party or by which it is bound;




     (c)    No Default or Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit;




     (d)    The Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that Holders of the Securities of such Series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and covenant defeasance had not occurred;




     (e)    The Company shall have delivered to the Trustee an Officers’ Certificate stating
the deposit was not made by the Company with the intent of preferring the Holders of the
Securities of such Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company; and




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



34









 





     Section 8.5.  Repayment to Company.



          The Trustee and the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal and interest that remains unclaimed for two years. After that,
Securityholders entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.




     Section 8.6.  Reinstatement.



          If the Trustee or the Paying Agent is unable to apply any money deposited with respect to
Securities of any Series in accordance with Section 8.1 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 obligations of the Company under this Indenture with
respect to the Securities of such Series and under the Securities of such Series shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1;
provided, however, that if the Company has made any payment of principal of or
interest on or any Additional Amounts with respect to any Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE IX.

AMENDMENTS AND WAIVERS




     Section 9.1.  Without Consent of Holders.



          The Company, any Guarantors and the Trustee may amend or supplement this Indenture or the
Securities of one or more Series without the consent of any Securityholder:





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




     (b)    to comply with Article V;




     (c)    to provide for uncertificated Securities in addition to or in place of
certificated Securities;




     (d)    to make any change that does not adversely affect the rights of any
Securityholder;




     (e)    to provide for the issuance of and establish the form and terms and conditions
of Securities of any Series as permitted by this Indenture;




     (f)    to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more Series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee;



35









 






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




     (h)    to reflect the release of any Guarantor in accordance with Article XII; or




     (i)    to add Guarantors with respect to any or all of the Securities or to secure any
or all of the Securities or the Guarantee.



     Section 9.2.  With Consent of Holders.



          The Company, any Guarantors and the Trustee may enter into a supplemental indenture with the
written consent of the Holders of at least a majority in principal amount of the outstanding
Securities of each Series affected by such supplemental indenture (including consents obtained in
connection with a tender offer or exchange offer for the Securities of such Series), for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the
Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a
majority in principal amount of the outstanding Securities of any Series by notice to the Trustee
(including consents obtained in connection with a tender offer or exchange offer for the Securities
of such Series) may waive compliance by the Company with any provision of this Indenture or the
Securities with respect to such Series.




          It shall not be necessary for the consent of the Holders of Securities under this Section 9.2
to approve the particular form of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a supplemental indenture or
waiver under this section becomes effective, the Company shall mail to the Holders of Securities
affected thereby, a notice briefly describing the supplemental indenture or waiver. Any failure by
the Company to mail or publish 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 9.3.  Limitations.



          Without the consent of each Securityholder affected, an amendment or waiver may not:





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




     (b)    reduce the rate of or extend the time for payment of interest (including default
interest) on any Security;




     (c)    reduce the principal or change the Stated Maturity of any Security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;




     (d)    reduce the principal amount of Discount Securities payable upon acceleration of
the maturity thereof;



36









 






     (e)    waive a Default or Event of Default in the payment of the principal of or
interest, if any, on any Security (except a rescission of acceleration of the Securities of
any Series by the Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted from such
acceleration);




     (f)    make the principal of or interest, if any, on any Security payable in any
currency other than that stated in the Security;




     (g)    make any change in Sections 6.8, 6.13 or 9.3 (this sentence);




     (h)    waive a redemption payment with respect to any Security, provided that such
redemption is made at the Company’s option; or




     (i)    if the Securities of that Series are entitled to the benefit of the Guarantee,
release any Guarantor of such Series other than as provided in this Indenture or modify the
Guarantee in any manner adverse to the Holders.



     Section 9.4.  Compliance with Trust Indenture Act.



          Every amendment to this Indenture or the Securities of one or more Series shall be set forth
in a supplemental indenture hereto that complies with the TIA as then in effect.




     Section 9.5.  Revocation and Effect of Consents.



          Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a
consent to it by a Holder of a Security 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 consenting
Holder’s Security, 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 his Security or portion of a Security if
the Trustee receives the notice of revocation before the date of the supplemental indenture or the
date the waiver becomes effective.




          Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of
Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder’s Security.




     Section 9.6.  Notation on or Exchange of Securities.



          The Trustee may place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Company in exchange for Securities of that Series may
issue and the Trustee shall authenticate upon request new Securities of that Series that reflect
the amendment or waiver.




37









 








     Section 9.7.  Trustee Protected.



          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights.




ARTICLE X.

MISCELLANEOUS




     Section 10.1.  Trust Indenture Act Controls.



          If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.




     Section 10.2.  Notices.



          Any notice or communication by the Company, the Guarantors, if any, or the Trustee to the
other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in
person or mailed by first-class mail:



if to the Company or any Guarantor:



Leap Wireless International, Inc.

10307 Pacific Center Court

San Diego, California 92121

Facsimile: (858) 882-6080

Attention: Secretary



With copies to:



Latham & Watkins LLP

12636 High Bluff Drive, Suite 400

San Diego, California 92130

Facsimile: (858) 523-5450

Attention: Barry M. Clarkson, Esq. and Gregory P. Rodgers, Esq.




38









 




if to the Trustee:




	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	 	 	 	 	 





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




          Any notice or communication to a Securityholder shall be mailed by first-class mail to his
address shown on the register kept by the Registrar. Failure to mail a notice or communication to
a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.




          If a notice or communication is mailed or published in the manner provided above, within the
time prescribed, it is duly given, whether or not the Securityholder receives it.




          If the Company mails a notice or communication to Securityholders, it shall mail a copy to the
Trustee and each Agent at the same time.




     Section 10.3.  Communication by Holders with Other Holders.



          Securityholders of any Series may communicate pursuant to TIA § 312(b) with other
Securityholders of that Series or any other Series with respect to their rights under this
Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA § 312(c).




     Section 10.4.  Certificate and Opinion as to Conditions Precedent.



          Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:





     (a)    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




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



     Section 10.5.  Statements Required in Certificate or Opinion.



          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:




39









 









     (a)    a statement that the person making such certificate or opinion has read such
covenant or condition;




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




     (c)    a statement that, in the opinion of 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




     (d)    a statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.



     Section 10.6.  Rules by Trustee and Agents.



          The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its
functions.




     Section 10.7.  Legal Holidays.



          Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture
hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a
payment date is a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.




     Section 10.8.  No Recourse Against Others.



          A director, officer, employee or stockholder, as such, of the Company or a Guarantor shall not
have any liability for any obligations of the Company under the Securities, the Guarantee or this
Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Securities.




     Section 10.9.  Counterparts.



          This Indenture may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.




     Section 10.10.  Governing Laws.



          THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS THEREOF.




40









 








     Section 10.11.  No Adverse Interpretation of Other Agreements.



          This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.




     Section 10.12.  Successors.



          All agreements of the Company and the Guarantors in this Indenture and the Securities shall
bind their respective successors. All agreements of the Trustee in this Indenture shall bind its
successor.




     Section 10.13.  Severability.



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




     Section 10.14.  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 or provisions hereof.




     Section 10.15.  Securities in a Foreign Currency or in ECU.



          Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such Series which shall be deemed to
be outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Union (or any successor thereto) as published in the
Official Journal of the European Union (such publication or any successor publication, the
“Journal”). If such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations or, in the case of
ECUs, rates of exchange from one or more major banks in The City of New York or in the country of
issue of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations
or, in the case of ECUs, rates of exchange as the Trustee, upon



41









 






consultation with the Company, shall deem appropriate. The provisions of this paragraph shall
apply in determining the equivalent principal amount in respect of Securities of a Series
denominated in currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.




          All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Company and all Holders.




     Section 10.16.  Judgment Currency.



          The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in
the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant
to any judgment (whether or not entered in accordance with subsection (a)), in any currency other
than the Required Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be
payable, and (iii) shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a
Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.




ARTICLE XI.

SINKING FUNDS




     Section 11.1.  Applicability of Article.



          The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.




          The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a “mandatory sinking fund payment” and any



42









 






other amount provided for by the terms of Securities of such Series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2.
Each sinking fund payment shall be applied to the redemption of Securities of any Series as
provided for by the terms of the Securities of such Series.




     Section 11.2.  Satisfaction of Sinking Fund Payments with Securities.



          The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than
any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as
credit Securities of such Series to which such sinking fund payment is applicable and which have
been repurchased by the Company or redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional redemptions pursuant to
the terms of such Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received by the Trustee, together with an Officers’ Certificate with
respect thereto, not later than 15 days prior to the date on which the Trustee begins the process
of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at
the price specified in such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery
or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal
amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such Series for redemption,
except upon receipt of a Company Order that such action be taken, and such cash payment shall be
held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall from time to time
upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held
by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of
that Series purchased by the Company having an unpaid principal amount equal to the cash payment
required to be released to the Company.




     Section 11.3.  Redemption of Securities for Sinking Fund.



          Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture hereto or Officers’ Certificate in respect of a particular Series of Securities) prior to
each sinking fund payment date for any Series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days
(unless otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such sinking



43









 






fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner provided in Section 3.3.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 3.4, 3.5 and 3.6.




ARTICLE XII.

GUARANTEE




     Section 12.1.  Unconditional Guarantee.




     (a)    Notwithstanding any provision of this Article XII to the contrary, the
provisions of this Article XII shall be applicable only to, and inure solely to the benefit
of, the Securities of any Series designated, pursuant to Section 2.2.24, as entitled to the
benefits of the Guarantee of each Guarantor identified in such designation and that has
executed a Notation of Guarantee with respect to such Series.




     (b)    For value received, each Guarantor hereby fully, unconditionally and absolutely
guarantees (the “Guarantee”) to the Holders and to the Trustee the due and punctual payment
of the principal of and interest on each Series of Securities for which such Guarantor has
executed a Notation of Guarantee with respect to such Series and all other amounts due and
payable under this Indenture and the Securities of such Series by the Company, when and as
such principal and interest shall become due and payable, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise, according to the terms of
such Securities and this Indenture, subject to the limitations set forth in Section 12.3.




     (c)    Failing payment when due of any amount guaranteed pursuant to the Guarantee, for
whatever reason, each of the Guarantors will be jointly and severally obligated to pay the
same immediately. Each of the Guarantors hereby agrees that its obligations hereunder shall
be full, unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Securities, the Guarantee (including the Guarantee of any other
Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company or any other Guarantor, or any action to
enforce the same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of any of the Guarantors. Each Guarantor hereby agrees that
in the event of a default in payment of the principal of or interest on the Securities
entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, legal proceedings may be
instituted by the Trustee on behalf of the Holders or, subject to Section 6.7, by the
Holders, on the terms and conditions set forth in this Indenture, directly against such
Guarantor to enforce the Guarantee without first proceeding against the Company or any other
Guarantor.




     (d)    Each Guarantor hereby (A) waives diligence, presentment, demand of payment,
filing of claims with a court in the event of the merger, insolvency or



44









 






bankruptcy of the Company or any of the Guarantors, and all demands whatsoever and
(B) acknowledges that any agreement, instrument or document evidencing the Guarantee may be
transferred and that the benefit of its obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing the Guarantee without notice to it. Each
Guarantor further agrees that if at any time all or any part of any payment theretofore
applied by any person to the Guarantee is, or must be, rescinded or returned for any reason
whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of
the Company or any of the Guarantors, the Guarantee shall, to the extent that such payment
is or must be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantee shall continue to be effective or be
reinstated, as the case may be, as though such application had not been made.




     (e)    Each Guarantor shall be subrogated to all rights of the Holders and the Trustee
against the Company in respect of any amounts paid by such Guarantor pursuant to the
provisions of this Indenture, provided, however, that such Guarantor, shall
not be entitled to enforce or to receive any payments arising out of, or based upon, such
right of subrogation until all of the Securities entitled to the Guarantee of such Guarantor
and the Guarantee shall have been paid in full or discharged.



     Section 12.2.  Execution and Delivery of Notation of Guarantee.



          To evidence the Guarantee of a Guarantor of a Series of Securities, a Notation of Guarantee,
executed by either manual or facsimile signature of an Officer of such Guarantor, shall be affixed
on each Security entitled to the benefits of the Guarantee of such Guarantor. If any Officer of
any Guarantor whose signature is on a Notation of Guarantee no longer holds that office at the time
the Trustee authenticates a Security to which such Notation of Guarantee is affixed or at any time
thereafter, the Guarantee of such Security shall be valid nevertheless.




     Section 12.3.  Limitation on Guarantors’ Liability.



          Each Guarantor and by its acceptance hereof and each Holder of Security entitled to the
benefits of the Guarantee hereby confirm that it is the intention of all such parties that the
guarantee by such Guarantor pursuant to the Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Federal or state law. To effectuate the foregoing intention, each
Holder of a Security entitled to the benefits of the Guarantee and each Guarantor hereby
irrevocably agrees that the obligations of each Guarantor under the Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and fixed liabilities of
such Guarantor and to any collections from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under the Guarantee, not result in the
obligations of such Guarantor under the Guarantee constituting a fraudulent conveyance or
fraudulent transfer under Federal or state law.




     Section 12.4.  Release of Guarantors from Guarantee.




     (a)    Notwithstanding any other provisions of this Indenture, the Guarantee of any
Guarantor may be released upon the terms and subject to the conditions set forth in



45









 






Section 8.1, Section 8.3 and in this Section 12.4. Provided that no Default shall have
occurred and shall be continuing under this Indenture, the Guarantee incurred by a Guarantor
pursuant to this Article XII shall be unconditionally released and discharged (i)
automatically upon (A) any sale, exchange or transfer, whether by way of merger or
otherwise, to any Person that is not an Affiliate of the Company, of all of the Company’s
direct or indirect equity interests in such Guarantor (provided such sale, exchange or
transfer is not prohibited by this Indenture) or (B) the merger of such Guarantor into the
Company or any other Guarantor or the liquidation and dissolution of such Guarantor (in each
case to the extent not prohibited by this Indenture) or (ii) with respect to any Series of
Securities, upon the occurrence of any other condition set forth in the Board Resolution,
supplemental indenture or Officers’ Certificate establishing the terms of such Series.




     (b)    The Trustee shall deliver an appropriate instrument evidencing any release of a
Guarantor from the Guarantee upon receipt of a written request of the Company accompanied by
an Officers’ Certificate and an Opinion of Counsel to the effect that the Guarantor is
entitled to such release in accordance with the provisions of this Indenture. Any Guarantor
not so released shall remain liable for the full amount of principal of and interest on the
Securities entitled to the benefits of the Guarantee as provided in this Indenture, subject
to the limitations of Section 12.3.



     Section 12.5.  Mutilated, Destroyed, Lost and Stolen Notations of Guarantee.



          If any mutilated Notation of Guarantee affixed to any Security is surrendered to the Trustee,
the Guarantor that executed such Notation of Guarantee shall execute and deliver in exchange
therefor a new Notation of Guarantee with respect to such Security.




          If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Notation of Guarantee by a holder of a Security to which
such Notation of Guarantee was originally affixed and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them and the applicable Guarantor
harmless, then the applicable Guarantor shall execute, in lieu of any such destroyed, lost or
stolen Notation of Guarantee, a new Notation of Guarantee with respect to such Security.




          Upon the issuance of any new Notation of Guarantee under this Section 12.5, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.




          Every new Notation of Guarantee issued pursuant to this Section 12.5 in lieu of any destroyed,
lost or stolen Notation of Guarantee shall constitute an original additional contractual obligation
of the applicable Guarantor, whether or not the destroyed, lost or stolen Notation of Guarantee
shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture.




46









 








          The provisions of this Section 12.5 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notations of Guarantee.





47









 








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




	 	 	 	 	 
	 	Leap Wireless International, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 
	 	Cricket Communications, Inc., as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 
	 	Cricket Licensee I, LLC, as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 
	 	Cricket Licensee (Reauction), LLC, as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 
	 	Cricket Licensee 2007, LLC, as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 
	 	[NAME OF TRUSTEE], as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 




 









 





EXHIBIT A




[FORM OF]




NOTATION OF GUARANTEE




          Each Guarantor signing below has fully, unconditionally and absolutely guaranteed, to the
extent set forth in the Indenture and subject to the provisions in the Indenture, the due and
punctual payment of the principal of and interest on the Securities to which this notation is
affixed and all other amounts due and payable under the Indenture and the Securities to which this
notation is affixed by the Company.




          The obligations of such Guarantor to the Holders of Securities to which this notation is
affixed and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article XII of the Indenture and reference is hereby made to the Indenture for the precise terms of
the Guarantee.




	 	 	 	 	 
	 	[NAME OF GUARANTOR(S)]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: