**EXECUTIONCOPY**

 

RURAL CELLULARCORPORATION

 

TO

 

WELLS FARGO BANKMINNESOTA,

N.A.,

as Trustee

 

INDENTURE

 

Dated as ofJanuary 16, 2002

 

$500,000,000

 

9 3⁄4% SeniorSubordinated Notes due 2010

 

9 3⁄4% Series BSenior Subordinated Notes due 2010

 

 

----

 

TABLE OF CONTENTS
| ARTICLE  I    | DEFINITIONS  AND OTHER PROVISIONS OF GENERAL APPLICATION                                                                  |
|---------------|---------------------------------------------------------------------------------------------------------------------------|
| Section 1.01  | Definitions.                                                                                                              |
| Section  1.02 | Compliance  Certificates and Opinions.                                                                                    |
| Section  1.03 | Form  of Documents Delivered to Trustee.                                                                                  |
| Section 1.04  | Acts of  Holders; Record Date.                                                                                            |
| Section 1.05  | Notices, Etc., to Trustee and Company.                                                                                    |
| Section 1.06  | Notice to  Holders; Waiver.                                                                                               |
| Section  1.07 | Conflict  with Trust Indenture Act.                                                                                       |
| Section  1.08 | Effect  of Headings and Table of Contents.                                                                                |
| Section 1.09  | Successors and  Assigns.                                                                                                  |
| Section 1.10  | Separability Clause.                                                                                                      |
| Section 1.11  | Benefits of  Indenture.                                                                                                   |
| Section 1.12  | Governing Law.                                                                                                            |
| Section 1.13  | Legal  Holidays.                                                                                                          |
| Section  1.14 | No  Personal Liability of Directors, Officers, Employees, and Shareholders.                                               |
| Section  1.15 | Counterparts.                                                                                                             |
|          |                                                                                                                      |
| ARTICLE II    | SECURITY FORMS                                                                                                            |
| Section 2.01  | Forms Generally.                                                                                                          |
| Section 2.02  | Form of Face of  Security                                                                                                 |
| Section  2.03 | Form  of Reverse of Security.                                                                                             |
| Section  2.04 | Form  of Trustee’s Certificate of Authentication.                                                                    |
|          |                                                                                                                      |
| ARTICLE III   | THE SECURITIES                                                                                                            |
| Section 3.01  | Title and Terms.                                                                                                          |
| Section 3.02  | Denominations.                                                                                                            |
| Section 3.03  | Execution, Authentication, Delivery and  Dating.                                                                          |
| Section 3.04  | Temporary  Securities.                                                                                                    |
| Section 3.05  | Global Securities.                                                                                                        |
| Section  3.06 | Registration;  Registration of Transfer and Exchange Generally; Certain Transfers and  Exchanges; Securities Act Legends. |
| Section 3.07  | Mutilated, Destroyed, Lost and Stolen  Securities.                                                                        |
| Section  3.08 | Payment  of Interest; Interest Rights Preserved.                                                                          |
| Section 3.09  | Persons Deemed  Owners.                                                                                                   |
| Section 3.10  | Cancellation.                                                                                                             |
| Section 3.11  | Computation of  Interest.                                                                                                 |
|          |                                                                                                                      |
| ARTICLE IV    | SATISFACTION AND DISCHARGE                                                                                                |
| Section  4.01 | Satisfaction  and Discharge of Indenture.                                                                                 |
| Section 4.02  | Application of  Trust Money.                                                                                              |
|          |                                                                                                                      |
| ARTICLE V     | REMEDIES                                                                                                                  |
| Section 5.01  | Events of Default.                                                                                                        |
| Section  5.02 | Acceleration  of Maturity; Rescission and Annulment.                                                                      |
| Section  5.03 | Collection  of Indebtedness and Suits for Enforcement by Trustee.                                                         |
| Section  5.04 | Trustee  May File Proofs of Claim.                                                                                        |
| Section  5.05 | Trustee  May Enforce Claims Without Possession of Securities.                                                             |
| Section  5.06 | Application  of Money Collected.                                                                                          |
| Section 5.07  | Limitation on Suits.                                                                                                      |
| Section  5.08 | Unconditional  Right of Holders to Receive Principal, Premium, Interest and Liquidated  Damages.                          |
| Section  5.09 | Restoration  of Rights and Remedies.                                                                                      |
| Section  5.10 | Rights and  Remedies Cumulative.                                                                                          |
| Section 5.11  | Delay or  Omission Not Waiver.                                                                                            |
| Section 5.12  | Control by Holders.                                                                                                       |
| Section 5.13  | Waiver of Past  Defaults.                                                                                                 |
| Section 5.14  | Undertaking for  Costs.                                                                                                   |
| Section  5.15 | Waiver  of Stay or Extension Laws.                                                                                        |
|          |                                                                                                                      |
| ARTICLE VI    | THE TRUSTEE                                                                                                               |
| Section  6.01 | Certain  Duties and Responsibilities.                                                                                     |
| Section 6.02  | Notice of Defaults.                                                                                                       |
| Section 6.03  | Certain Rights  of Trustee.                                                                                               |
| Section  6.04 | Not  Responsible for Recitals or Issuance of Securities.                                                                  |

 

i

----

 
| Section 6.05   | May Hold Securities.                                                            |
|----------------|---------------------------------------------------------------------------------|
| Section 6.06   | Money Held in Trust.                                                            |
| Section  6.07  | Compensation  and Reimbursement.                                                |
| Section  6.08  | Disqualification;  Conflicting Interests.                                       |
| Section  6.09  | Corporate  Trustee Required; Eligibility.                                       |
| Section  6.10  | Resignation  and Removal; Appointment of Successor.                             |
| Section  6.11  | Acceptance  of Appointment by Successor.                                        |
| Section 6.12   | Merger, Conversion, Consolidation or  Succession to Business.                   |
| Section  6.13  | Preferential  Collection of Claims Against Company.                             |
| Section  6.14  | Appointment  of Authenticating Agent.                                           |
|           |                                                                            |
| ARTICLE VII    | HOLDERS’  LISTS AND REPORTS BY TRUSTEE AND COMPANY                         |
| Section  7.01  | Company  to Furnish Trustee Names and Addresses of Holders.                     |
| Section  7.02  | Preservation  of Information; Communications to Holders.                        |
| Section 7.03   | Reports by Trustee.                                                             |
| Section 7.04   | Reports by Company.                                                             |
|           |                                                                            |
| ARTICLE VIII   | CONSOLIDATION, MERGER, CONVEYANCE,  TRANSFER OR LEASE                           |
| Section 8.01   | Company May Consolidate, Etc. Only on  Certain Terms.                           |
| Section 8.02   | Successor  Substituted.                                                         |
|           |                                                                            |
| ARTICLE IX     | SUPPLEMENTAL  INDENTURES                                                        |
| Section  9.01  | Supplemental  Indentures Without Consent of Holders.                            |
| Section  9.02  | Supplemental  Indentures with Consent of Holders.                               |
| Section  9.03  | Execution  of Supplemental Indentures.                                          |
| Section  9.04  | Effect  of Supplemental Indentures.                                             |
| Section  9.05  | Conformity  with Trust Indenture Act.                                           |
| Section  9.06  | Reference  in Securities to Supplemental Indentures.                            |
| Section  9.07  | Notice  of Supplemental Indenture.                                              |
|           |                                                                            |
| ARTICLE  X     | COVENANTS                                                                       |
| Section 10.01  | Payment of Principal, Premium and  Interest.                                    |
| Section  10.02 | Maintenance  of Office or Agency.                                               |
| Section  10.03 | Money  for Security Payments to be Held in Trust.                               |
| Section 10.04  | Existence.                                                                      |
| Section 10.05  | Maintenance of  Properties.                                                     |
| Section  10.06 | Payment  of Taxes and Other Claims.                                             |
| Section 10.07  | Maintenance of  Insurance.                                                      |
| Section  10.08 | Limitation  on Consolidated Indebtedness.                                       |
| Section  10.09 | Limitation  on Preferred Stock of Restricted Subsidiaries.                      |
| Section  10.10 | Limitation  on Certain Indebtedness.                                            |
| Section  10.11 | Limitation  on Restricted Payments.                                             |
| Section  10.12 | Limitations  Concerning Distributions and Transfers By Restricted Subsidiaries. |
| Section 10.13  | Limitations on  Liens.                                                          |
| Section  10.14 | Limitation  on Transactions with Affiliates and Related Persons.                |
| Section  10.15 | Limitation  on Asset Sales and Sales of Subsidiary Stock.                       |
| Section  10.16 | Limitation  on Activities of the Company and its Restricted Subsidiaries.       |
| Section 10.17  | Change of Control.                                                              |
| Section  10.18 | Statement  by Officers to Default; Compliance Certificates.                     |
| Section  10.19 | Waiver of  Certain Covenants.                                                   |
| Section 10.20  | Payments for Consent.                                                           |
| Section  10.21 | Covenants  upon Attainment and Maintenance of an Investment Grade Rating.       |
|           |                                                                            |
| ARTICLE XI     | REDEMPTION OF  SECURITIES                                                       |
| Section 11.01  | Right of Redemption.                                                            |
| Section  11.02 | Applicability  of Article XI.                                                   |
| Section  11.03 | Election  to Redeem; Notice to Trustee.                                         |
| Section  11.04 | Selection  by Trustee of Securities to Be Redeemed.                             |
| Section 11.05  | Notice of Redemption.                                                           |
| Section  11.06 | Deposit of  Redemption Price.                                                   |
| Section  11.07 | Securities  Payable on Redemption Date.                                         |
| Section  11.08 | Securities  Redeemed in Part.                                                   |
|           |                                                                            |
| ARTICLE XII    | SUBORDINATION  OF SECURITIES                                                    |
| Section  12.01 | Securities  Subordinate to Senior Indebtedness.                                 |
| Section  12.02 | Payment  Over of Proceeds Upon Dissolution, Etc.                                |
| Section  12.03 | No  Payment When Senior Indebtedness in Default.                                |

 

ii

----

 
| Section  12.04 | Payment  Permitted If No Default.                                                                      |
|----------------|--------------------------------------------------------------------------------------------------------|
| Section  12.05 | Subrogation  to Rights of Holders of Senior Indebtedness.                                              |
| Section  12.06 | Provisions  Solely to Define Relative Rights.                                                          |
| Section  12.07 | Trustee  to Effectuate Subordination.                                                                  |
| Section  12.08 | No  Waiver of Subordination Provisions.                                                                |
| Section 12.09  | Notice to Trustee.                                                                                     |
| Section  12.10 | Reliance  on Judicial Order or Certificate of Liquidating Agent.                                       |
| Section  12.11 | Trustee  Not Fiduciary for Holders of Senior Debt.                                                     |
| Section  12.12 | Rights  of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s  Rights.           |
| Section  12.13 | Article  XII Applicable to Paying Agents.                                                              |
| Section  12.14 | Defeasance  of this Article XII.                                                                       |
|           |                                                                                                   |
| ARTICLE  XIII  | DEFEASANCE  AND COVENANT DEFEASANCE                                                                    |
| Section  13.01 | Company’s  Option to Effect Defeasance or Covenant Defeasance.                                    |
| Section 13.02  | Defeasance and  Discharge.                                                                             |
| Section 13.03  | Covenant Defeasance.                                                                                   |
| Section  13.04 | Conditions  to Defeasance or Covenant Defeasance.                                                      |
| Section  13.05 | Deposited  Money and U.S. Government Obligations to be Held in Trust; Other  Miscellaneous Provisions. |
| Section 13.06  | Reinstatement.                                                                                         |

 

Schedules:
| Schedule10.08 | Existing  Indebtedness                                                         |
|---------------|--------------------------------------------------------------------------------|
| Schedule10.12 | Limitations  Concerning Distributions and Transfers by Restricted Subsidiaries |
| Schedule10.14 | Limitations  on Transactions with Affiliates and Related Persons               |

 

iii

----

 

Exhibit 4.2 (a)

 

INDENTURE, dated as ofJanuary 16, 2002 (this “Indenture”), between Rural Cellular Corporation,a corporation organized and existing under the laws of the State of Minnesota(herein called the “Company”), having its principal office at 3905DakotaStreet S.W., Alexandria, MN 56308, and Wells Fargo Bank Minnesota, N.A., asTrustee (herein called the “Trustee”).

 

RECITALS OF THECOMPANY

 

The Company has dulyauthorized the creation of an issue of its 9 3⁄4% Senior Subordinated Notes due2010 (the “Original Securities”), and 9 3⁄4% Series B Senior SubordinatedNotes due 2010 (the “Exchange Securities,” and together with theOriginal Securities, the “Securities”) of substantially the tenor andamount hereinafter set forth, and to provide therefore the Company has duly authorizedthe execution and delivery of this Indenture.

 

All things necessary tomake the Securities, when executed by the Company and authenticated anddelivered hereunder and duly issued by the Company, the valid obligations ofthe Company, and to make this Indenture a valid agreement of the Company, inaccordance with their and its terms, have been done.

 

NOW, THEREFORE,THIS INDENTURE WITNESSETH:

 

For and in considerationof the premises and the purchase of the Securities by the Holders thereof, itis mutually covenanted and agreed, for the equal and proportionate benefit ofall Holders of the Securities, as follows:

 

ARTICLE I

 

DEFINITIONS ANDOTHER PROVISIONS

OF GENERALAPPLICATION

 

Section 1.01 Definitions.

 

For all purposes of thisIndenture, except as otherwise expressly provided or unless the contextotherwise requires:

 

(1)           the terms defined in this Articlehave the meanings assigned to them in this Article and include the plural aswell as the singular;

 

(2)           all other terms used herein which aredefined in the Trust Indenture Act, either directly or by reference therein,have the meanings assigned to them therein;

 

(3)           all accounting terms not otherwisedefined herein have the meanings assigned to them in accordance with GAAP(whether or not such is indicated herein);

 

(4)           unless otherwise specifically setforth herein, all calculations or determinations of a Person shall be performedor made on a consolidated basis in accordance with GAAP but shall not includethe assets and liabilities of Unrestricted Subsidiaries, except to the extentof dividends and distributions actually paid to the Company or one of itsWholly Owned Restricted Subsidiaries; and

 

(5)           the words “herein,” “hereof” and“hereunder” and other words of similar import refer to this Indenture as awhole and not to any particular Article, Section or other subdivision; and

 

(6)           the term “on a pro forma basis” meanson a pro forma basis as calculated in accordance with Regulation S-X, asamended, under the Securities Act.

 

Certain terms, usedprincipally in Articles VI and X, are defined as provided in such Articles.

 

“Acquired Indebtedness”means Indebtedness of a Person (including an Unrestricted Subsidiary)(1)existing at the time such Person becomes a Restricted Subsidiary or(2)assumed in connection with the acquisition of assets from such Person, inthe case of both of the preceding Clause (1)and Clause (2), other thanIndebtedness incurred in connection with, or in contemplation of, such Personbecoming a Restricted Subsidiary or such acquisition. Acquired Indebtednessshall be deemed to be Incurred on the date of the related acquisition of assetsfrom any Person or the date the acquired Person becomes a RestrictedSubsidiary.

 

----

 

“Acquired Person”has the meaning specified in the definition of Permitted Investment.

 

“Act,” when usedwith respect to any Holder, has the meaning specified in Section 1.04.

 

“Additional Securities”has the meaning set forth in Section 3.01.

 

“Additional SeniorSubordinated Exchange Debentures” means the senior subordinated debenturesthat may be issued by the Company in accordance with the terms of the JuniorExchangeable Preferred Stock in effect on the Issue Date.

 

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

 

“Administrative Agent”means the Person or Persons designated as such under the Credit Facility.

 

“Affiliate” of anyPerson means any other Person directly or indirectly controlling or controlledby or under direct or indirect common control with such Person. For thepurposes of this definition, “control” when used with respect to any Personmeans the power to direct the management and policies of such Person, directlyor indirectly, whether through the ownership of voting securities, by contractor otherwise; and the terms “controlling” and “controlled” have meaningscorrelative to the foregoing.

 

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

 

“Applicable Procedures”means, with respect to any transfer or transaction involving a Global Securityor beneficial interest therein, the rules and procedures of the Depositary forsuch Security, Euroclear and Clearstream, in each case to the extent applicableto such transaction and as in effect from time to time.

 

“Asset Sale”means, in any one transaction or a series of related transactions, theconveyance, sale, transfer, assignment or other disposition, directly orindirectly, of any of the Company’s or a Restricted Subsidiary’s property,business or assets, including any sale or other transfer or issuance of anyCapital Stock of any Restricted Subsidiary of the Company, whether owned on theIssue Date or thereafter acquired.

 

“Authenticating Agent”means any Person authorized by the Trustee to act on behalf of the Trustee toauthenticate Securities.

 

“Bankruptcy Law”has the meaning specified in Section 5.01(h).

 

“Board of Directors”of a Person which is a corporation, means either the board of directors of thatPerson or any duly authorized committee of that board.

 

“Board Resolution”means a copy of a resolution certified by the Secretary or an AssistantSecretary of the Company to have been duly adopted by the Board of Directors ofthe Company, to be in full force and effect on the date of such certificationand delivered to the Trustee.

 

“Business Day”means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a dayon which banking institutions in New York City or the State of Minnesota areauthorized or obligated by law or executive order to close.

 

“Capital LeaseObligation” means that portion of any obligation of a Person as lesseeunder a lease which is required to be capitalized on the balance sheet of suchlessee in accordance with GAAP.

 

“Capital Stock”means, with respect to any Person, any and all shares, interests,participations or other equivalents (however designated, including voting andnon-voting) of equity of such Person.

 

“Cash Equivalents”means:

 

(1)           securities issued or directly andfully guaranteed or insured by the United States of America or any agency orinstrumentality thereof (provided that the full faith and credit of the UnitedStates of America is pledged in support thereof), in each case maturing withinone year after the date of acquisition,

 

(2)           time deposits and certificates ofdeposit and commercial paper issued by the parent corporation of any domesticcommercial bank of recognized standing having capital and surplus in excess of$500 million and commercial paper issued by others rated at least A-2 or theequivalent thereof by S&P or at least P-2 or the equivalent thereof byMoody’s and in each case maturing within one year after the date of acquisitionand

 

2

----

 

(3)           investments in money market fundssubstantially all of whose assets comprise securities of the types described inclauses (1) and (2) above.

 

“Change of Control”means (1) directly or indirectly a merger, sale, transfer or other conveyanceof all or substantially all the assets of the Company, on a consolidated basis,to any “person” or “group” (as such terms are used for purposes of Sections13(d) and 14(d) of the Exchange Act, whether or not applicable), excludingtransfers or conveyances to or among the Company’s current or newly-formedWholly Owned Restricted Subsidiaries, as an entirety or substantially as anentirety in one transaction or series of related transactions, in each casewith the effect that any Person or group of Persons beneficially owns more than50% of the total Voting Power entitled to vote in the election of directors,managers or trustees of the transferee entity immediately after suchtransaction, (2) any “person” or “group” (as such terms are used for purposesof Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) isor becomes the beneficial owner, directly or indirectly, of more than 50% ofthe total Voting Power of the Company or (3) during any period of 24consecutive months, individuals who at the beginning of such period constitutedthe Board of Directors of the Company (together with any new directors whoseelection by such Board or whose nomination for election by the shareholders ofthe Company was approved by a vote of a majority of the directors then still inoffice who were either directors at the beginning of such period or whoseelection or nomination for election was previously so approved), cease for anyreason to constitute a majority of the Board of Directors of the Company thenin office. For purposes of this definition, the terms “beneficially own,”“beneficial owner” and “beneficial ownership” shall have the meanings used inRules 13d-3 and 13d-5 under the Exchange Act, whether or not applicable, exceptthat a Person shall be deemed to have “beneficial ownership” of all shares thatany such Person has the right to acquire, whether such right is exercisableimmediately or only after the passage of time.

 

“Clearstream”means Clearstream Banking, a *société anonyme*(or any successor securities clearing agency).

 

“Commission” meansthe United States Securities and Exchange Commission as from time to timeconstituted, created under the Exchange Act, or, if at any time after theexecution of this instrument such Commission is not existing and performing theduties now assigned to it under the Trust Indenture Act, then the bodyperforming such duties at such time.

 

“Common Stock” ofany Person means Capital Stock of such Person that does not rank prior, as tothe payment of dividends or as to the distribution of assets upon any voluntaryor involuntary liquidation, dissolution or winding up of such Person, to sharesof Capital Stock of any other class of such Person.

 

“Company” meansthe Person named as the “Company” in the first paragraph of this instrumentuntil a successor Person shall have become such pursuant to the applicableprovisions of this Indenture and thereafter “Company” shall mean such successorPerson.

 

“Company Request”or “Company Order” means a written request or order signed in the nameof the Company by its Chief Executive Officer, its President or any VicePresident, and by its Chief Financial Officer, Treasurer, an AssistantTreasurer, its Secretary or an Assistant Secretary, and delivered to theTrustee.

 

“Consolidated Indebtedness”of any Person means at any date the Indebtedness of such Person and itsRestricted Subsidiaries at such date.

 

“Consolidated InterestExpense” of any Person means for any period the interest expense includedin an income statement (taking into account the effect of any Hedge Agreementsbut without deduction of interest income) of such Person and its RestrictedSubsidiaries for such period, including without limitation or duplication (or,to the extent not so included, with the addition of),

 

(1)           the portion of any rental obligationin respect of any Capital Lease Obligation allocable to interest expense inaccordance with GAAP;

 

(2)           the amortization of Indebtednessdiscounts;

 

(3)           any payments or fees with respect toletters of credit, bankers’ acceptances or similar facilities;

 

(4)           fees with respect to HedgeAgreements;

 

(5)           the portion of any rental obligationsin respect of any Sale and Leaseback Transaction allocable to interest expense(determined as if such were treated as a Capital Lease Obligation); and

 

(6)           Preferred Stock dividends accrued orpayable other than dividends on Qualified Capital Stock of such Person.

 

“Consolidated NetIncome” of any Person means for any period the net income (or loss) of suchPerson and its Restricted Subsidiaries for such period determined on aconsolidated basis in accordance with GAAP; *provided*that there shall be excluded therefrom (to the extent included and withoutduplication):

 

3

----

 

(1)           the net income (or loss) of anyPerson acquired by such Person or a Restricted Subsidiary of such Person afterthe Issue Date in a pooling of interests transaction for any period prior tothe date of such transaction,

 

(2)           the net income (or loss) of anyPerson that is not a Restricted Subsidiary of such Person except to the extentof the amount of dividends or other distributions actually paid to such Personby such other Person during such period,

 

(3)           gains or losses from sales of assetsother than sales of assets acquired and held for resale in the ordinary courseof business,

 

(4)           for purposes of Section 10.11, thenet income, if positive, of any Restricted Subsidiary to the extent that thedeclaration or payment of dividends or similar distributions by such RestrictedSubsidiary of such net income is not at that time permitted by the operation ofthe terms of its charter or any agreement, instrument, judgment, decree, order,statute, rule or governmental regulations applicable to such RestrictedSubsidiary, and

 

(5)           all extraordinary gains andextraordinary losses.

 

“Consolidated NetWorth” of any Person means the consolidated shareholders’ equity of suchPerson, determined on a consolidated basis in accordance with GAAP; *provided*, that such computation shallexclude (1) any amounts attributable to Redeemable Stock or any equity securityconvertible into or exchangeable for Indebtedness, the cost of treasury stockand the principal amount of any promissory notes receivable from the sale ofthe Capital Stock of the Company or any of its Restricted Subsidiaries and (2)Unrestricted Subsidiaries.

 

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

 

“Cooperative BankEquity” means non-voting equity interests in Cooperative Banks.

 

“Corporate TrustOffice” means the principal office of the Trustee at Sixth Street andMarquette Avenue, Minneapolis, Minnesota 55479-0069 at which at any particulartime its corporate trust business shall be administered or such other locationdesignated by the Trustee in a report pursuant to Section 7.03(a).

 

“Covenant Suspension”has the meaning specified in Section 10.21(a).

 

“Credit Facility”means the Third Amended and Restated Loan Agreement, dated as of June 29, 2000,as amended to the Issue Date, among the Company, Toronto Dominion (Texas),Inc.,as Administrative Agent, TD Securities (USA)Inc., as Book Runner and LeadArranger, and First Union National Bank and PNC Bank, as Co-Syndication Agents,and the other lenders party to such Agreement, as such agreement may be furtheramended, supplemented, restated, refunded, replaced, renewed, extended,refinanced, increased or otherwise modified, in whole or in part, from time totime.

 

“Cumulative InterestExpense” means the total amount of Consolidated Interest Expense of theCompany and its Restricted Subsidiaries for the period beginning on the firstday of the completed fiscal quarter immediately preceding the Issue Date,through and including the end of the last completed fiscal quarter precedingthe date of any proposed Restricted Payment.

 

“Cumulative OperatingCash Flow” means Operating Cash Flow of the Company and its RestrictedSubsidiaries for the period beginning on the first day of the completed fiscalquarter immediately preceding the Issue Date, through and including the end ofthe last fiscal quarter preceding the date of any proposed Restricted Payment.

 

“Default” meansany event that is, or with the passage of time or the giving of notice or bothwould be, an Event of Default.

 

“Defaulted Interest”has the meaning specified in Section 3.08.

 

“Depositary” meansa clearing agency registered under the Exchange Act that is designated to actas Depositary for the Securities until a successor Depositary shall have becomesuch pursuant to the applicable provisions of this Indenture, and thereafter“Depositary” shall mean such successor Depositary. The Depositary shallinitially be DTC.

 

“Designated SeniorIndebtedness” means the Indebtedness under the Credit Facility.

 

“DistributionCompliance Period” means, with respect to the Initial Regulation SSecurities, the “distribution compliance period” required by Rule 903(b)(2) ofRegulation S applicable to such Securities.

 

“DTC” means TheDepository Trust Company, a New York corporation.

 

4

----

 

“Euroclear” meansthe Euroclear Clearance System (or any successor securities clearing agency).

 

“Event of Default”has the meaning specified in Section 5.01.

 

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

 

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

 

“Exchange Offer”means an offer made pursuant to an effective registration statement under theSecurities Act by the Company to exchange all or a portion of the OutstandingSecurities (except for the differences provided for herein) for ExchangeSecurities.

 

“Exchange RegistrationStatement” means a registration statement of the Company under theSecurities Act registering Exchange Securities for distribution pursuant to anExchange Offer.

 

“Exchange Securities”means the Securities designated as such in the first paragraph of the recitalsof the Company, all of which are to be issued pursuant to an Exchange Offer orsold pursuant to a Shelf Registration Statement and their Successor Securities.

 

“ExchangeablePreferred Stock” means the 113¤8% Senior Exchangeable Preferred Stock ofthe Company.

 

“Existing Indebtedness”has the meaning specified in Section 10.08.

 

“Existing PreferredStock” has the meaning specified in Section 10.09(a).

 

“Existing SeniorSubordinated Notes” means the 9 5¤8% Senior Subordinated Notes due 2008 ofthe Company.

 

“Expiration Date”has the meaning specified in the definition of “Offer to Purchase.”

 

“Fair Market Value”means, with respect to any assets or Person, the price which could benegotiated in an arm’s-length free market transaction, for cash, between awilling seller and a willing buyer, neither of whom is under undue pressure orcompulsion to complete the transaction. Fair Market Value will be determined(1) if such Person or assets have a Fair Market Value of up to $2.5 million, byany executive officer of the Company and evidenced by an Officers’ Certificate,dated within 30 days of the relevant transaction, (2) if such Person or assetshave a Fair Market Value equal to or in excess of $2.5 million but not inexcess of $10 million, by a majority of the Board of Directors of the Companyand evidenced by a Board Resolution, dated within 30 days of the relevanttransaction or (3) if such Person or assets have a Fair Market Value in excessof $10 million, by a majority of the Board of Directors of the Company andevidenced by a Board Resolution, dated within 30 days of the relevanttransaction, based on an appraisal of an independent appraiser of nationalreputation.

 

“GAAP” meansgenerally accepted accounting principles set forth in the opinions andpronouncements of the Accounting Principles Board of the American Institute ofCertified Public Accountants and statements and pronouncements of the FinancialAccounting Standards Board or in such other statements by such other entity orentities as have been approved by a significant segment of the accountingprofession in the United States, which are in effect as of the Issue Date.

 

“Global Securities”has the meaning set forth in Section 2.01.

 

“Hedge Agreements”means any interest rate or currency exchange rate swap, cap, collar, floor,caption or swaption agreements, or any similar arrangements arising at any timebetween the company or any Restricted Subsidiary, on the one hand, and anyPerson, on the other hand, as such agreement or arrangement may be modified,supplemented and in effect from time to time.

 

“Holder” means aPerson in whose name a Security is registered in the Security Register.

 

“Incur” means,with respect to any Indebtedness or other obligation of any Person, to create,issue, incur (by conversion, exchange or otherwise), assume, guarantee orotherwise become liable in respect of such Indebtedness or other obligation orthe recording, as required pursuant to GAAP or otherwise, of any such Indebtednessor other obligation on the balance sheet of such Person (and “Incurrence,”“Incurred,” “Incurrable” and “Incurring” shall have meanings correlative to theforegoing); *provided* thatthe accrual of interest, the accretion or amortization of original issuediscount, the payment of interest on any Indebtedness in the form ofIndebtedness with the same terms and the payment of dividends on RedeemableStock in the form of additional shares of the same class of Redeemable Stockshall not be deemed to be an Incurrence of Indebtedness (provided, in each suchcase, that the amount thereof shall be included in the Consolidated InterestExpense and Indebtedness of the Company as accrued).

 

5

----

 

“Indebtedness”means (without duplication), with respect to any Person, whether recourse is toall or a portion of the assets of such Person and whether or not contingent,

 

(1)           every obligation of such Person formoney borrowed,

 

(2)           every obligation of such Personevidenced by bonds, debentures, notes or similar instruments, includingobligations Incurred in connection with the acquisition of property, assets orbusinesses,

 

(3)           every reimbursement obligation ofsuch Person with respect to letters of credit, bankers’ acceptances or similarfacilities issued for the account of such Person,

 

(4)           every obligation of such Personissued or assumed as the deferred purchase price of property or services (butexcluding trade accounts payable or accrued liabilities arising in the ordinarycourse of business),

 

(5)           every Capital Lease Obligation ofsuch Person,

 

(6)           the maximum fixed redemption orrepurchase price of Redeemable Stock of such Person at the time ofdetermination,

 

(7)           every obligation to pay rent or otherpayment amounts of such Person with respect to any Sale and LeasebackTransaction to which such Person is a party,

 

(8)           all obligations under HedgeAgreements,

 

(9)           every obligation of the type referredto in clauses (1) through (8) above of another Person and all dividends ofanother Person the payment of which, in either case, such Person has guaranteedor is responsible or liable, directly or indirectly, as obligor, guarantor orotherwise or for which such Person provides any form of credit support, and

 

(10)         the liquidation value of PreferredStock of a Subsidiary of such Person issued and outstanding and held by otherthan such Person (or one of its Wholly Owned Restricted Subsidiaries);

 

*provided,* that for all purposes of this Indenture,

 

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

 

(B)                               Indebtedness shall not include anyliability for federal, state, local or other taxes.

 

For purposes of this Indenture, the amount of anyIndebtedness under any Hedge Agreement shall be the amount determined inrespect thereof as of the end of the then most recently ended fiscal quarter ofsuch Person, based on the assumption that such Hedge Agreement had terminatedat the end of such fiscal quarter, and in making such determination, if suchHedge Agreement or any related agreement provides for the netting of amountspayable by and to such Person thereunder or if any such agreement provides forthe simultaneous payment of amounts by and to such Person, then in each suchcase, the amount of such obligations shall be the net amount so determined,unless the counterparty under such agreement is in default under such agreementor defaults in making the corresponding payment to such Person.

 

“Indenture” meansthis instrument as originally executed or as it may from time to time besupplemented or amended by one or more indentures supplemental hereto enteredinto pursuant to the applicable provisions hereof.

 

“Initial Purchasers”means (1) with respect to the Original Securities issued on the Issue Date,Dresdner Kleinwort Wasserstein —Grantchester, Inc., Credit Suisse First BostonCorporation, TD Securities (USA) Inc., Banc of America Securities LLC and FirstUnion Securities, Inc. and (2) with respect to Original Securities issued afterthe Issue Date, the initial purchasers of such Securities from the Company inconnection with an exempt offering of Securities to “qualified institutionalbuyers” (as such term is defined in Rule 144A) and to other persons.

 

“Initial Regulation SSecurities” means the Securities, if any, issued in reliance on RegulationS.

 

“Interest Payment Date”means the Stated Maturity of an installment of interest on the Securities.

 

“Investment” byany Person in any other Person means (without duplication):

 

6

----

 

(1)           the acquisition (whether by purchase,merger, consolidation or otherwise) by such Person (whether for cash, property,services, securities or otherwise) of capital stock, bonds, notes, debentures,partnership or other ownership interests or other securities of such otherPerson or any agreement to make any such acquisition;

 

(2)           the making by such Person of anydeposit with, or advance, loan or other extension of credit to, such otherPerson (including the purchase of property from another Person subject to anunderstanding or agreement, contingent or otherwise, to resell such property tosuch other Person) or any commitment to make any such advance, loan orextension;

 

(3)           the entering into by such Person ofany guarantee of, or other contingent obligation with respect to, Indebtednessor other liability of such other Person;

 

(4)           the making of any capitalcontribution by such Person to such other Person; and

 

(5)           the designation by the Board ofDirectors of the Company of any Person to be an Unrestricted Subsidiary.

 

For purposes of Section10.11:

 

(A)          “Investment” shall include andbe valued at the Fair Market Value of such Person’s *pro rata* interest in the net assets of any RestrictedSubsidiary at the time that such Restricted Subsidiary is designated anUnrestricted Subsidiary and shall exclude the lesser of (x) the Fair MarketValue of such Person’s *pro rata*interest in the net assets of any Unrestricted Subsidiary at the time that suchUnrestricted Subsidiary is designated a Restricted Subsidiary and (y) the FairMarket Value of the amount of such Person’s Investments (other than PermittedInvestments) made in (net of cash distributions received from) suchUnrestricted Subsidiary since the Issue Date, and

 

(B)           the amount of any Investment shall bethe Fair Market Value of such Investment at the time any such Investment ismade.

 

“Investment Grade”means a rating of the relevant debt obligation of a Person by both S&P andMoody’s, any such rating being in one of such agency’s four highest genericrating categories that signifies investment grade (i.e., currently BBB- (or theequivalent) or higher by S&P and Baa3 (or the equivalent) or higher byMoody’s); *provided* in eachcase such ratings are publicly available; *provided*,*further* that in the eventeither S&P or Moody’s is no longer in existence for purposes of determiningwhether such debt obligations are rated “Investment Grade,” such organizationmay be replaced by a nationally recognized statistical rating organization (asdefined in Rule436 under the Securities Act) designated by the Company, writtennotice of which shall be given to the Trustee.

 

“Issue Date” meansthe time and date of the first issuance of the Original Securities.

 

“Junior ExchangeablePreferred Stock” means the 121⁄4% Junior Exchangeable Preferred Stock of theCompany.

 

“Lien” means, withrespect to any property or assets, any mortgage or deed of trust, pledge,hypothecation, assignment, deposit arrangement, security interest, lien,charge, easement (other than an easement not materially impairing usefulness ormarketability), encumbrance, preference, priority or other security agreementor preferential arrangement of any kind or nature whatsoever on or with respectto such property or assets (including, without limitation, any conditional saleor other title retention agreement having substantially the same economiceffect as any of the foregoing).

 

“Liquidated Damages”means the liquidated damages payable under the Registration Rights Agreement.

 

“Maturity” means,when used with respect to any Security, the date on which the principal of suchSecurity becomes due and payable, whether at the Stated Maturity or bydeclaration of acceleration, call for redemption or otherwise.

 

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

 

“Net Cash Proceeds”means the aggregate amount of cash and Cash Equivalents received by the Companyand its Restricted Subsidiaries in respect of an Asset Sale (including upon theconversion to cash and Cash Equivalents of (a) any note or installmentreceivable at any time or (b) any other property as and when any cash and CashEquivalents are received in respect of any property received in an Asset Salebut only to the extent such cash and Cash Equivalents are received within oneyear after such Asset Sale), less the sum of (1) all reasonable out-of-pocketfees, commissions and other expenses incurred in connection with such AssetSale, including the amount (estimated in good faith by the Board of Directorsof the Company) of income, franchise, sales and other applicable taxes requiredto be paid by the Company or any Restricted Subsidiary of the Company inconnection with such Asset Sale and (2) the aggregate amount of cash soreceived which is used to retire any existing Senior Indebtedness orIndebtedness of the Company that ranks *paripassu* in right of payment with the Securities or existingIndebtedness of such Restricted Subsidiaries, as the case may be, which isrequired to be repaid in connection with such Asset Sale or is secured by aLien on the property or assets of the Company or any of its RestrictedSubsidiaries, as the case may be; provided that Indebtedness ranking *pari passu* in right of payment 

 

7

----

 

with the Securities which is issued pursuant todocumentation providing for the making of an offer to repurchase or repay suchIndebtedness in connection with an Asset Sale shall be treated as provided inSection 10.15.

 

“Non-Recourse Debt”means Indebtedness:

 

(1)           as to which neither the Company norany of its Restricted Subsidiaries:

 

(a)           provides credit support of any kind(including any undertaking, agreement or instrument that would constituteIndebtedness);

 

(b)           is directly or indirectly liable, asa guarantor or otherwise; or

 

(c)           constitutes the lender, other thanwith respect to amounts that are lent by the Company or one of its RestrictedSubsidiaries to an Unrestricted Subsidiary in compliance with Sections 10.11and 10.14 hereof and are otherwise permitted by this Indenture;

 

(2)           no default with respect to which, includingany rights that the holders of such Indebtedness may have to take enforcementaction against an Unrestricted Subsidiary, would permit (upon notice, lapse oftime or both) any holder of any other Indebtedness of the Company or any of itsRestricted Subsidiaries to declare a default on that other Indebtedness orcause the payment of that other Indebtedness to be accelerated or payable priorto its stated maturity; and

 

(3)           as to which the lenders will not haveany recourse to the assets of the Company or the stock or assets of any of itsRestricted Subsidiaries.

 

“Notice of Default”has the meaning specified in Section 5.01.

 

“Offer” has themeaning specified in the definition of Offer to Purchase.

 

“Offer to Purchase”means a written offer (the “Offer”) sent by the Company to each Holderat his address appearing in the Security Register on the date of the Offeroffering to purchase up to the principal amount of Securities specified in suchOffer at the purchase price specified in such Offer. Unless otherwise requiredby applicable law, the Offer shall specify an expiration date (the “ExpirationDate”) of the Offer to Purchase which, subject to any contrary requirementsof applicable law, shall be not less than 30 days nor more than 60 days afterthe date of such Offer to Purchase (or, in the case of any Offer to Purchasemade prior to the occurrence of the Change of Control and contingent upon suchoccurrence, the later of (x) 60 days after the date of such Offer to Purchaseand (y) the date of occurrence of such Change of Control) and a settlement date(the “Purchase Date”) for purchase of Securities within five BusinessDays after the Expiration Date.

 

The Offer shall alsostate:

 

(1)           the Section of this Indenturepursuant to which the Offer to Purchase is being made;

 

(2)           the Expiration Date and the PurchaseDate;

 

(3)           the aggregate principal amount of theOutstanding Securities offered to be purchased by the Company pursuant to theOffer to Purchase (including, if less than 100%, the manner by which such hasbeen determined pursuant to the Section hereof requiring the Offer to Purchase)(the “Purchase Amount”);

 

(4)           the purchase price to be paid by theCompany for each $1,000 aggregate principal amount of Securities accepted forpayment (as specified pursuant to this Indenture) (the “Purchase Price”);

 

(5)           that the Holder may tender all or anyportion of the Securities registered in the name of such Holder and that anyportion of a Security tendered must be tendered in an integral multiple of$1,000 principal amount;

 

(6)           the place or places where Securitiesare to be surrendered for tender pursuant to the Offer to Purchase;

 

(7)           that on the Purchase Date thePurchase Price will become due and payable upon each Security accepted forpayment pursuant to the Offer to Purchase and that interest thereon shall ceaseto accrue on and after the Purchase Date;

 

(8)           that each Holder electing to tender aSecurity pursuant to the Offer to Purchase will be required to surrender suchSecurity at the place or places specified in the Offer prior to the close ofbusiness on the Expiration Date (such Security being, if the Company or theTrustee so requires, duly endorsed by, or accompanied by a written instrumentof transfer in form satisfactory to the Company and the Trustee duly executedby, the Holder thereof or his attorney duly authorized in writing);

 

8

----

 

(9)           that Holders will be entitled towithdraw all or any portion of Securities tendered if the Company (or itsPaying Agent) receives, not later than the close of business on the ExpirationDate, a telegram, telex, facsimile transmission or letter setting forth thename of the Holder, the principal amount of the Security the Holder tendered,the certificate number of the Security the Holder tendered and a statement thatsuch Holder is withdrawing all or a portion of his tender;

 

(10)         that (a) if Securities in anaggregate principal amount less than or equal to the Purchase Amount are dulytendered and not withdrawn pursuant to the Offer to Purchase, the Company shallpurchase all such Securities and (b) if Securities in an aggregateprincipal amount in excess of the Purchase Amount are tendered and notwithdrawn pursuant to the Offer to Purchase, the Company shall purchaseSecurities having an aggregate principal amount equal to the Purchase Amount ona pro rata basis (with such adjustments as may be deemed appropriate so thatonly Securities in denominations of $1,000 or integral multiples thereof shallbe purchased); and

 

(11)         that in the case of any Holder whoseSecurity is purchased only in part, the Company shall execute, and the Trusteeshall authenticate and deliver to the Holder of such Security without servicecharge, a new Security or Securities, of any authorized denomination asrequested by such Holder, in an aggregate principal amount equal to and inexchange for the unpurchased portion of the Security so tendered.

 

“Offering Memorandum”means the Offering Memorandum, dated January 11, 2002, with respect to theoffering of the Original Securities to be issued on the Issue Date.

 

“Officers’ Certificate”means a certificate signed by two officers at least one of whom shall be theprincipal executive officer, principal accounting officer or principalfinancial officer of the Company and delivered to the Trustee.

 

“Operating Cash Flow”for any Person for any period means:

 

(1)           the Consolidated Net Income of suchPerson for such period, plus

 

(2)           the sum, without duplication (andonly to the extent such amounts are deducted from net revenues in determiningsuch Consolidated Net Income), of:

 

(a)           the provisions for income taxes forsuch period for such Person and its Restricted Subsidiaries,

 

(b)           depreciation, amortization and othernon-cash charges of such Person and its Restricted Subsidiaries and

 

(c)           Consolidated Interest Expense, to theextent that any such expense was deducted in computing such Consolidated NetIncome, of such Person for such period, determined, in each case, on aconsolidated basis for such Person and its Restricted Subsidiaries inaccordance with GAAP,

 

*less*

 

(3)           the sum, without duplication (andonly to the extent such amounts are included in such Consolidated Net Income),of:

 

(a)           all extraordinary gains of suchPerson and its Restricted Subsidiaries during such period and

 

(b)           the amount of all cash payments madeduring such period by such Person and its Restricted Subsidiaries to the extentsuch payments relate to non-cash charges that were added back in determiningOperating Cash Flow for such period or for any prior period;

 

and in the case of a Restricted Subsidiary that is nota Wholly Owned Restricted Subsidiary, the determination of the percentage ofthe Operating Cash Flow of such Restricted Subsidiary that is to be included inthe calculation of the Company’s Operating Cash Flow Ratio shall be made on apro forma basis on the assumption that the percentage of the Company’s commonequity interest in such Restricted Subsidiary throughout the applicableReference Period was equivalent to its common equity interest on the date ofthe determination.

 

“Operating Cash FlowRatio” of any Person on any date (the “Transaction Date”) means,with respect to such Person and its Restricted Subsidiaries, the ratio of

 

(1)           Consolidated Indebtedness of such Personon the Transaction Date (after giving pro forma effect to the Incurrence of anyIndebtedness on such Transaction Date) divided by

 

9

----

 

(2)           the aggregate amount of OperatingCash Flow of such Person for the applicable Reference Period (determined on apro forma basis after giving effect to all dispositions of businesses made bysuch Person and its Restricted Subsidiaries from the beginning of the ReferencePeriod through the Transaction Date as if such dispositions had occurred at thebeginning of such Reference Period);

 

*provided*, that for purposes of such computation,in calculating Operating Cash Flow and Consolidated Indebtedness:

 

(A)          the transaction giving rise to theneed to calculate the Operating Cash Flow Ratio will be assumed to haveoccurred (on a pro forma basis) on the first day of the Reference Period;

 

(B)           the Incurrence of any Indebtednessduring the Reference Period or subsequent thereto and on or prior to theTransaction Date (and the application of the proceeds therefrom to the extentused to retire Indebtedness) will be assumed to have occurred (on a pro formabasis) on the first day of such Reference Period;

 

(C)           Consolidated Interest Expenseattributable to any Indebtedness (whether existing or being incurred) bearing afloating interest rate shall be computed as if the rate in effect on theTransaction Date had been the applicable rate for the entire Reference Period;

 

(D)          all members of the consolidated groupof such Person on the Transaction Date that were acquired during the ReferencePeriod shall be deemed to be members of the consolidated group of such Personfor the entire Reference Period; and

 

(E)           the Indebtedness and Operating CashFlow of any Restricted Subsidiary that is not a Wholly Owned RestrictedSubsidiary shall be determined in accordance with the actual percentage of thePerson’s common equity interest in such Restricted Subsidiary on the date ofdetermination of the Operating Cash Flow Ratio (thus, for example, in the caseof a Restricted Subsidiary in which such Person owns a 51% common equityinterest, 51% of such Subsidiary’s Indebtedness and of such Subsidiary’sOperating Cash Flow would be included in the calculation of such Person’saggregate Indebtedness and Operating Cash Flow, respectively).

 

“Opinion of Counsel”means a written opinion of counsel, who may be counsel for the Company, and whoshall be reasonably acceptable to the Trustee, delivered to the Trustee.

 

“Original Securities”means the Securities designated in the first paragraph of the recitals of theCompany.

 

“Outstanding,”when used with respect to Securities, means, as of the date of determination,all Securities theretofore authenticated and delivered under this Indenture, *except*:

 

(i)            Securities theretofore canceled bythe Trustee or delivered to the Trustee for cancellation;

 

(ii)           Securities for whose payment orredemption money in the necessary amount has been theretofore deposited withthe Trustee or any Paying Agent (other than the Company) in trust or set asideand segregated in trust by the Company (if the Company shall act as its ownPaying Agent) for the Holders of such Securities; *provided*that, if such Securities are to be redeemed,notice of such redemption has been duly given pursuant to this Indenture orprovision therefor satisfactory to the Trustee has been made; and

** **

(iii)          Securities which have been replacedpursuant to Section 3.07 or in exchange for or in lieu of which otherSecurities have been authenticated and delivered pursuant to this Indenture,other than any such Securities in respect of which there shall have beenpresented to the Trustee proof satisfactory to it that such Securities are heldby a bona fide purchaser in whose hands such Securities are valid obligationsof the Company;

 

*provided*, *however*,that in determining whether the Holders of the requisite principal amount ofthe Outstanding Securities have given any request, demand, authorization,direction, notice, consent or waiver hereunder, Securities owned by the Companyor any other obligor upon the Securities or any Affiliate of the Company or ofsuch other obligor shall be disregarded and deemed not to be Outstanding,except that, in determining whether the Trustee shall be protected in relyingupon any such request, demand, authorization, direction, notice, consent orwaiver, only Securities which the Trustee knows to be so owned shall be sodisregarded. Securities so owned which have been pledged in good faith may beregarded as Outstanding if the pledgee establishes to the satisfaction of theTrustee the pledgee’s right so to act with respect to such Securities and thatthe pledgee is not the Company or any other obligor upon the Securities or anyAffiliate of the Company or of such other obligor.

 

“*pari passu*,” when used with respect tothe ranking of any Indebtedness of any Person in relation to other Indebtednessof such Person, means that each such Indebtedness (a)either (i)is notsubordinated in right of payment to any other Indebtedness of such Person or (ii)issubordinate in right of payment to the same Indebtedness of such Person as isthe other and is so

 

10

----

 

subordinate to the same extent and (b)is notsubordinate in right of payment to the other or to any Indebtedness of suchPerson as to which the other is not so subordinate.

 

“Paying Agent”means any Person authorized by the Company to pay the principal of (andpremium, if any), interest (and Liquidated Damages, if any), on any Securitieson behalf of the Company.

 

“Payment BlockagePeriod” has the meaning specified in Section 12.03.

 

“Permitted Investments”means:

 

(1)           Investments in Cash Equivalents;

 

(2)           Investments in the Company or aRestricted Subsidiary (other than payments described in Clause (4) of thesecond paragraph of Section 10.11;

 

(3)           Investments in a Person substantiallyall of whose assets are of a type generally used in a Wireless CommunicationsBusiness (an “Acquired Person”) if, as a result of such Investments, (A)the Acquired Person immediately thereupon becomes a Restricted Subsidiary or(B) the Acquired Person immediately thereupon either (a) is merged orconsolidated with or into the Company or any Restricted Subsidiary or (b)transfers or conveys all or substantially all of its assets to, or isliquidated into, the Company or any of its Restricted Subsidiaries;

 

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

 

(5)           any securities received in connectionwith an Asset Sale and any investment with the Net Cash Proceeds from any AssetSale in Capital Stock of a Person, all or substantially all of whose assets areof a type used in a Wireless Communications Business, that complies withSection 10.15;

 

(6)           advances and prepayments for assetpurchases in the ordinary course of business in a Wireless CommunicationsBusiness of the Company or a Restricted Subsidiary;

 

(7)           customary loans or advances made inthe ordinary course of business to officers, directors or employees of theCompany or any of its Restricted Subsidiaries for travel, entertainment, andmoving and other relocation expenses not to exceed $5 million at any one timeoutstanding;

 

(8)           the purchase of Cooperative BankEquity in Cooperative Banks to the extent required by the charter documents ofsuch Cooperative Banks in connection with the Incurrence of any Indebtednesswhich is provided by such Cooperative Banks under the Credit Facility, providedthat such Incurrence is permitted under the terms of this Indenture; and

 

(9)           Investments in Wireless Alliance notexceeding $10 million in the aggregate made after the Issue Date;

 

*provided*, that the Investments referenced inclauses (3) and (9) above shall not be Permitted Investments thereunder if madeat any time that a Default or Event of Default has occurred and is continuing.

 

“Person” means anyindividual, corporation, partnership, limited liability company, joint venture,trust, unincorporated organization or government or any agency or politicalsubdivision thereof.

 

“Predecessor Security”of any particular Security means every previous Security evidencing all or aportion of the same debt as that evidenced by such particular Security; and,for the purposes of this definition, any Security authenticated and deliveredunder Section 3.07 in exchange for or in lieu of a mutilated, destroyed, lostor stolen Security shall be deemed to evidence the same debt as the mutilated,destroyed, lost or stolen Security.

 

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

 

“Proceeding” hasthe meaning specified in Section 12.02.

 

“Public EquityOffering” means an underwritten public offering of common stock of theCompany pursuant to an effective registration statement filed with theCommission in accordance with the Securities Act.

 

“Purchase Agreement”means (1) with respect to the Original Securities issued on the Issue Date, thePurchase Agreement, dated as of January 11, 2002, among the Company and theInitial Purchasers, as such agreement may be amended from time 

 

11

----

 

to time and (2) with respect to the Original Securitiesissued after the Issue Date, the purchase agreement relating to the issuance ofsuch Securities among the Company and the Initial Purchasers, as such agreementmay be amended from time to time.

 

“Purchase Amount”has the meaning specified in the definition of Offer to Purchase.

 

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

 

“Purchase Price”has the meaning specified in the definition of Offer to Purchase.

 

“Qualified CapitalStock” means, with respect to any Person, any and all shares of CapitalStock other than Redeemable Stock issued by such Person after the date of thisIndenture.

 

“Qualified CapitalStock Proceeds” means, with respect to any Person,

 

(1)           in the case of any sale of QualifiedCapital Stock, the aggregate net cash proceeds received by such Person, afterpayment of expenses, commissions and the like incurred by such Person inconnection therewith, and net of Indebtedness that such Person Incurred,guaranteed or otherwise became liable for in connection with the issuance oracquisition of such Capital Stock; and

 

(2)           in the case of any exchange,exercise, conversion or surrender of any Redeemable Stock or Indebtedness ofsuch Person issued (other than to any Subsidiary) for cash after the Issue Datefor or into shares of Qualified Capital Stock of such Person, the liquidationvalue of the Redeemable Stock or the net book value of such Indebtedness asadjusted on the books of such Person to the date of such exchange, exercise,conversion or surrender, plus any additional amount paid by the securityholdersto such Person upon such exchange, exercise, conversion or surrender and lessany and all payments made to the securityholders, and all other expenses,commissions and the like Incurred by such Person or any Subsidiary inconnection therewith.

 

“Qualifying Event”means a Public Equity Offering or one or more Strategic Equity Investmentswhich in either case results in aggregate net proceeds of not less than$50million.

 

“Redeemable Stock”of any Person means any equity security of such Person that by its terms orotherwise is required to be redeemed prior to the final Stated Maturity of theSecurities or is redeemable at the option of the holder thereof at any timeprior to the final Stated Maturity of the Securities; provided that any CapitalStock that would not constitute Redeemable Stock but for provisions in itgiving holders thereof the right to require such Person to repurchase or redeemsuch Capital Stock upon the occurrence of a “change of control” occurring priorto the final Stated Maturity of the Securities shall not constitute RedeemableStock if the “Change of Control” provisions applicable to such Capital Stockare no more favorable to the holders of such Capital Stock than the provisions Section10.17 and such Capital Stock specifically provides that such Person will notrepurchase or redeem any such stock pursuant to such provision prior to theCompany’s repurchase of the Securities as required pursuant to Section 10.17.

 

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

 

“Redemption Price,”when used with respect to any Security to be redeemed, means the price at whichit is to be redeemed pursuant to the terms of the Securities or this Indenture.

 

“Reference Period”with regard to any Person means the last four completed fiscal quarters of suchPerson immediately preceding any date upon which any determination is to bemade pursuant to the terms of the Securities or this Indenture.

 

“Registered Securities”means the Exchange Securities and all other Securities sold or otherwisedisposed of pursuant to an effective registration statement under theSecurities Act, together with their respective Successor Securities.

 

“Registration RightsAgreement” means (1) with respect to the Original Securities issued on theIssue Date, the Registration Rights Agreement, dated as of January 16, 2002, byand among the Company and the Initial Purchasers, as such agreement may beamended from time to time and (2) with respect to Original Securities issuedafter the Issue Date, any Registration Rights Agreement among the Company andthe Initial Purchasers providing for the issuance of Exchange Securities in anExchange Offer registered on an Exchange Registration Statement and theregistration of the resale of Securities under a Shelf Registration Statement,as each such agreement may be amended from time to time.

 

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

 

“Regulation S”means Regulation S under the Securities Act (or any successor provision), as itmay be amended from time to time.

 

“Regulation S GlobalSecurity” has the meaning specified in Section 2.01.

 

12

----

 

“Related Person”of any Person means any other Person owning (a)5% or more of theoutstanding Common Stock of such Person or (b)5% or more of the Voting Power ofsuch Person.

 

“Restricted GlobalSecurity” has the meaning specified in Section 2.01.

 

“Restricted Payment”means, with respect to any Person:

 

(1)           any declaration or payment of adividend or other distribution on any shares of Capital Stock of such Person orany Subsidiary of such Person (other than a dividend payable solely in sharesof the Capital Stock of such Person or options, warrants or other rights toacquire the Capital Stock of such Person and other than any declaration orpayment of a dividend or other distribution by a Restricted Subsidiary to theCompany or another Wholly Owned Restricted Subsidiary);

 

(2)           any payment on account of thepurchase, redemption, retirement or acquisition (including by way of issuingany Indebtedness or Redeemable Stock in exchange for Qualified Capital Stock)of (A) any shares of Capital Stock of such Person or any Subsidiary of suchPerson held by other than such Person or any of its Restricted Subsidiaries or(B) any option, warrant or other right to acquire shares of Capital Stock ofsuch Person or any Subsidiary of such Person or any of its RestrictedSubsidiaries, in each case other than pursuant to the cashless exercise ofoptions to acquire Capital Stock of such Person;

 

(3)           any Investment (other than aPermitted Investment) made by such Person; and

 

(4)           any redemption, defeasance,repurchase or other acquisition or retirement for value prior to any scheduledmaturity, repayment or sinking fund payment, of any Subordinated Indebtednessof such Person.

 

*provided*, that the term “Restricted Payment” doesnot include the payment of a dividend or other distribution by any RestrictedSubsidiary on shares of its Capital Stock that is paid pro rata to all holdersof such Capital Stock.

 

“Restricted Subsidiary”of any Person means any Subsidiary of such Person other than an UnrestrictedSubsidiary.

 

“Rule 144” meansRule144 under the Securities Act (or any successor provision) as it may beamended from time to time.

 

“Rule 144A” meansRule 144A under the Securities Act (or any successor provision), as it may beamended from time to time.

 

“Rule 144A Securities”means the Securities purchased by the Initial Purchasers from the Companypursuant to the Purchase Agreement, other than the Initial Regulation SSecurities.

 

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

 

“Sale and LeasebackTransaction” of any Person means an arrangement with any lender or investoror to which such lender or investor is a party providing for the leasing bysuch Person of any property or asset of such Person which has been or is beingsold or transferred by such Person more than 270 days after the acquisitionthereof or the completion of construction or commencement of operation thereofto such lender or investor or to any Person to whom funds have been or are tobe advanced by such lender or investor on the security of such property orasset. The stated maturity of such arrangement shall be the date of the lastpayment of rent or any other amount due under such arrangement prior to thefirst date on which such arrangement may be terminated by the lessee withoutpayment of a penalty.

 

“Securities” meanssecurities designated in the first paragraph of the recitals of the Company andincludes the Exchange Securities.

 

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

 

“Securities Act Legend”means a legend substantially in the form of the legend required in the form ofSecurity set forth in Section 2.02 to be placed upon a Rule144A Security or anInitial Regulation S Security.

 

“Securities Payment”has the meaning set forth in Section 12.02.

 

“Security Registrar”and “Security Register” have the respective meanings specified inSection 3.06.

 

“Senior Indebtedness”means the principal of (and premium, if any) and interest (including interestaccruing on or after the filing of any petition in bankruptcy or forreorganization relating to the Company, whether or not a claim forpost-petition interest is allowed in such proceeding) on

 

13

----

 

(1)           Indebtedness of the Company createdpursuant to the Credit Facility and all other obligations thereunder or underthe notes, security documents, pledge agreements, Hedge Agreements or otheragreements or instruments executed in connection therewith,

 

(2)           Indebtedness of the Company createdpursuant to any vendor financing Incurred for the acquisition, construction orimprovement by the Company or any Restricted Subsidiary of assets in theWireless Communications Business,

 

(3)           all other Indebtedness of the Companyfor borrowed money referred to in the definition of Indebtedness other thanclauses (4), (6) and (10) thereof (and Clause (9) thereof to the extentapplicable to Indebtedness Incurred under clauses (4) and (6) thereof), whetherIncurred on or prior to the Issue Date, other than the Securities, and

 

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

 

*provided*, *however*,the following shall not constitute Senior Indebtedness:

 

(A)          any Indebtedness owed to a Person whensuch Person is a Restricted Subsidiary of the Company,

 

(B)           any Indebtedness which by the termsof the instrument creating or evidencing the same is expressly made equal orsubordinate in right of payment to the Securities,

 

(C)           any Indebtedness Incurred inviolation of this Indenture (but, as to any such Indebtedness, no suchviolation shall be deemed to exist for purposes of this Clause (C) if theholder(s) of such Indebtedness or their representative and the Trustee shallhave received an Officers’ Certificate of the Company to the effect that theIncurrence of such Indebtedness does not (or in the case of revolving creditIndebtedness, that the Incurrence of the entire committed amount thereof at thedate on which the initial borrowing thereunder is made would not) violate thisIndenture; provided that the holder(s) of such Indebtedness or theirrepresentative shall not have received prior to the Incurrence of suchIndebtedness a written notice from the Trustee advising them that suchIncurrence violates the terms of this Indenture) or

 

(D)          any Indebtedness which is subordinatedin right of payment to any other Indebtedness of the Company, including withoutlimitation the Existing Senior Subordinated Notes, the Senior SubordinatedExchange Debentures, and the Additional Senior Subordinated ExchangeDebentures.

 

“Senior NonmonetaryDefault means the occurrence or existence and continuance of any event ofdefault, or of any event which, after notice or lapse of time (or both), wouldbecome an event of default, under the terms of any instrument pursuant to whichany Senior Indebtedness is outstanding, permitting (after notice or lapse oftime or both) one or more holders of such Senior Indebtedness (or anadministrative agent on behalf of the holders thereof) to declare such SeniorIndebtedness due and payable prior to the date on which it would otherwisebecome due and payable, other than a Senior Payment Default.

 

“Senior PaymentDefault” means any default in the payment of principal of (or premium, ifany) or interest on any Senior Indebtedness when due, whether at the statedmaturity of any such payment or by declaration of acceleration, call forredemption or otherwise.

 

“Senior SubordinatedExchange Debentures” means the senior subordinated debentures, that may beissued by the Company in accordance with the terms of the ExchangeablePreferred Stock in effect on the Issue Date.

 

“Shelf RegistrationStatement” means a “shelf” registration statement under which resales ofSecurities by the holders thereof are registered under the Securities Actpursuant to a Registration Rights Agreement.

 

“SignificantSubsidiary” means any Restricted Subsidiary of the Company that is a“significant subsidiary” as defined in Article1-02(w) of Regulation S-X underthe Securities Act.

 

“Special Record Date”has the meaning specified in Section 3.08(a).

 

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

 

“Strategic EquityInvestment” means an investment in Qualified Stock made by a StrategicInvestor in an aggregate amount of not less than $50million.

 

14

----

 

“Strategic Investor”means a Person (other than an Affiliate of the Company or a Person who byvirtue of such Investment becomes such an Affiliate) engaged in one or moreTelecommunications Businesses with an equity market capitalization at the timesuch Person makes a Strategic Equity Investment in the Company in excess of $1billion.

 

“SubordinatedIndebtedness” means Indebtedness of the Company that is subordinated inright of payment to the Securities.

 

“Subsidiary”means, as applied to any Person, (1) any corporation of which more than fiftypercent (50%) of the outstanding Capital Stock (other than directors’qualifying shares) having ordinary Voting Power to elect its board ofdirectors, regardless of the existence at the time of a right of the holders ofany class or classes of securities of such corporation to exercise such VotingPower by reason of the happening of any contingency, or any entity other than acorporation of which more than fifty percent (50%) of the outstanding ownershipinterests, is at the time owned directly or indirectly by such Person, or byone or more Subsidiaries of such Person, or by such Person and one or more Subsidiariesof such Person, or (2) any other entity which is directly or indirectlycontrolled or capable of being controlled by such Person, or by one or moreSubsidiaries of such Person, or by such Person and one or more Subsidiaries ofsuch Person.

 

“Successor Company”has the meaning specified in Section 8.01(b).

 

“Successor Security”of any particular Security means every Security issued after, and evidencingall or a portion of the same debt as that evidenced by, such particularSecurity; and, for the purposes of this definition, any Security authenticatedand delivered under Section 3.07 in exchange for or in lieu of a mutilated,destroyed, lost or stolen Security shall be deemed to evidence the same debt asthe mutilated, destroyed, lost or stolen Security.

 

“TelecommunicationsBusiness” means the business of (1) transmitting, or providing servicesrelating to the transmission of, voice, video or data through owned or leasedwireline or wireless transmission facilities, (2) creating, developing,constructing, installing, repairing, maintaining or marketingcommunications-related systems, network equipment and facilities, software andother products, or (3) evaluating, owning, operating, participating in orpursuing any other business that is primarily related to those identified inClauses (1) or (2) above (in the case of this Clause (3), however, in a mannerconsistent with the Company’s manner of business on the Issue Date), and shall,in any event, include all businesses in which the Company or any of itsSubsidiaries is engaged on the Issue Date or has entered into agreements toengage in or to acquire a company to engage in or contemplate engaging in, asexpressly set forth in the Offering Memorandum; *provided* that the determination of what constitutes aTelecommunications Business shall be made in good faith by the Company’s Boardof Directors.

 

“Trust Indenture Act”means the Trust Indenture Act of 1939 as in force at the date as of which thisinstrument was executed, except as provided in Section 9.05; *provided*, *however*, that in the event the TrustIndenture Act of 1939 is amended after such date, “Trust Indenture Act” means,to the extent required by any such amendment, the Trust Indenture Act of 1939as so amended.

 

“Trustee” meansthe Person named as the “Trustee” in the first paragraph of this instrumentuntil a successor Trustee shall have become such pursuant to the applicableprovisions of this Indenture, and thereafter “Trustee” shall mean suchsuccessor Trustee.

 

“U.S. GovernmentObligations” has the meaning specified in Section 13.04(a).

 

“UnrestrictedSubsidiary” of any Person means (1) any Subsidiary of such Person that atthe time of determination shall be designated an Unrestricted Subsidiary by theBoard of Directors of such Person in the manner provided below and (2) anySubsidiary of an Unrestricted Subsidiary. Any Subsidiary of the Company may bedesignated by the Board of Directors of the Company as an UnrestrictedSubsidiary by a Board Resolution, but only if the Subsidiary:

 

(1)           has no Indebtedness other thanNon-Recourse Debt;

 

(2)           is not party to any agreement,contract, arrangement or understanding with the Company or any RestrictedSubsidiary of the Company, unless the terms of any such agreement, contract,arrangement or understanding are no less favorable to the Company or theRestricted Subsidiary than those that might be obtained at the time fromPersons who are not Affiliates of the Company;

 

(3)           is a Person with respect to whichneither the Company nor any of its Restricted Subsidiaries has any direct orindirect obligation

 

 

(a)           to subscribe for additional CapitalStock or

 

(b)           to maintain or preserve that Person’sfinancial condition or to cause that Person to achieve any specified levels ofoperating results; and

 

(4)           has not guaranteed or otherwisedirectly or indirectly provided credit support for any Indebtedness of theCompany that does not constitute Senior Indebtedness.

 

15

----

 

Any such designation by the Board of Directors of theCompany shall be evidenced to the Trustee by filing with the Trustee acertified copy of the Board Resolution giving effect to that designation and anOfficers’ Certificate certifying that that designation complied with thepreceding conditions and was permitted by Section 10.11. If, at any time, anyUnrestricted Subsidiary would fail to meet the preceding requirements as anUnrestricted Subsidiary, it shall, after that time, cease to be an UnrestrictedSubsidiary for purposes of this Indenture, and any Indebtedness of thatSubsidiary shall be deemed to be incurred by a Restricted Subsidiary of theCompany as of that date (and, if that Indebtedness is not permitted to beincurred as of that date under Section 10.08, the Company shall be in defaultof that covenant). The Board of Directors of the Company may at any timedesignate any Unrestricted Subsidiary to be a Restricted Subsidiary; *provided* that the designation shall bedeemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Companyof any outstanding Indebtedness of such Unrestricted Subsidiary, and thatdesignation shall only be permitted if:

 

(A)          the Indebtedness is permitted underSection 10.08 of this Indenture, calculated on a pro forma basis as if thatdesignation had occurred at the beginning of the Reference Period, and

 

(B)           no Default or Event of Default wouldoccur or be in existence following that designation.

 

Wireless Alliance shall be deemed an UnrestrictedSubsidiary as of the Issue Date and shall thereafter remain an UnrestrictedSubsidiary unless and until designated by the Board of Directors as aRestricted Subsidiary in accordance with the terms of this Indenture.

 

“Voting Power” ofany Person means the aggregate number of votes of all classes of Capital Stock ofsuch Person which ordinarily have voting power for the election of directors ofsuch Person.

 

“Wholly OwnedRestricted Subsidiary” of any Person means a Restricted Subsidiary of suchPerson all of the outstanding Capital Stock or other ownership interests ofwhich (other than directors’ qualifying shares) shall at the time be owned bysuch Person or by one or more Wholly Owned Restricted Subsidiaries of suchPerson or by such Person and one or more Wholly Owned Restricted Subsidiariesof such Person.

 

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

 

“WirelessCommunications Business” means any business substantially related to theownership, development, operation or acquisition of wireless communicationsservices permitted under the Federal Communications Commission’s (the “FCC”)Commercial Mobile Radio Services rules (and the related provisions of the FCC’sPublic Mobile Services and Personal Communications Services rules), and otherrelated telecommunications business services.

 

Section 1.02           Compliance Certificates andOpinions.

 

Upon any application orrequest by the Company to the Trustee to take any action under any provision ofthis Indenture, the Company shall furnish to the Trustee such certificates andopinions as may be required under the Trust Indenture Act. Each suchcertificate or opinion shall be given in the form of an Officers’ Certificate,if to be given by an officer of the Company, or an Opinion of Counsel, if to begiven by counsel, and shall comply with the requirements of the Trust IndentureAct and any other requirement set forth in this Indenture.

 

Every certificate oropinion with respect to compliance with a condition or covenant provided for inthis Indenture shall include

 

(1)           a statement that each individualsigning such certificate or opinion has read such covenant or condition and thedefinitions herein relating thereto;

 

(2)           a brief statement as to the natureand scope of the examination or investigation upon which the statements oropinions contained in such certificate or opinion are based;

 

(3)           a statement that, in the opinion ofeach such individual, he has made such examination or investigation as in itsreasonable judgment is necessary to enable him to express an informed opinionas to whether or not such covenant or condition has been complied with; and

 

(4)           a statement as to whether or not, inthe opinion of each such individual, such condition or covenant has beencomplied with.

 

Section 1.03           Form of Documents Delivered toTrustee.

 

In any case where severalmatters are required to be certified by, or covered by an opinion of, anyspecified Person, it is not necessary that all such matters be certified by, orcovered by the opinion of, only one such Person, or that they be so certifiedor covered by only one document, but one such Person may certify or give anopinion with respect to some matters and one or 

 

16

----

 

more other such Persons as to other matters, and anysuch Person may certify or give an opinion as to such matters in one or severaldocuments.

 

Any certificate oropinion of an officer of the Company may be based, insofar as it relates tolegal matters, upon a certificate or opinion of, or representations by,counsel, unless such officer knows that the certificate or opinion orrepresentations with respect to the matters upon which his certificate oropinion is based are erroneous. Any certificate or opinion of counsel may bebased, insofar as it relates to factual matters, upon a certificate or opinionof, or representations by, an officer or officers of the Company stating thatthe information with respect to such factual matters is in the possession ofthe Company, unless such counsel knows that the certificate or opinion or representationswith respect to such matters are erroneous.

 

Where any Person isrequired to make, give or execute two or more applications, requests, consents,certificates, statements, opinions or other instruments under this Indenture,they may, but need not, be consolidated and form one instrument.

 

Section 1.04           Acts of Holders; Record Date.

 

(a)           Any request, demand, authorization,direction, notice, consent, waiver or other action provided by this Indentureto be given or taken by Holders may be embodied in and evidenced by one or moreinstruments of substantially similar tenor signed by such Holders in person orby agent duly appointed in writing; and, except as herein otherwise expresslyprovided, such action shall become effective when such instrument orinstruments are received by the Trustee and, where it is hereby expresslyrequired, to the Company. Such instrument or instruments (and the actionembodied therein and evidenced thereby) are herein sometimes referred to as the“Act” of the Holders signing such instrument or instruments. Proof ofexecution of any such instrument or of a writing appointing any such agentshall be sufficient for any purpose of this Indenture and (subject to Section6.01) conclusive in favor of the Trustee and the Company, if made in the mannerprovided in this Section 1.04.

 

(b)           The fact and date of the execution byany Person of any such instrument or writing may be proved by the affidavit ofa witness of such execution or by a certificate of a notary public or otherofficer authorized by law to take acknowledgments of deeds, certifying that theindividual signing such instrument or writing acknowledged to him the executionthereof. Where such execution is by a signer acting in a capacity other thanhis individual capacity, such certificate or affidavit shall also constitutesufficient proof of his authority. The fact and date of the execution of anysuch instrument or writing, or the authority of the Person executing the same,may also be proved in any other manner which the Trustee reasonably deemssufficient.

 

(c)           The Company may, in the circumstancespermitted by the Trust Indenture Act, fix any day as the record date for thepurpose of determining the Holders entitled to give or take any request,demand, authorization, direction, notice, consent, waiver or other action, orto vote on any action, authorized or permitted to be given or taken by Holders.If not set by the Company prior to the first solicitation of a Holder made byany Person in respect of any such action, or, in the case of any such vote,prior to such vote, the record date for any such action or vote shall be the30th day (or, if later, the date of the most recent list of Holders required tobe provided pursuant to Section 7.01) prior to such first solicitation or vote,as the case may be. With regard to any record date, only the Holders on suchdate (or their duly designated proxies) shall be entitled to give or take, orvote on, the relevant action.

 

(d)           The ownership of Securities shall beproved by the Security Register.

 

(e)           Any request, demand, authorization,direction, notice, consent, waiver or other Act of the Holder of any Securityshall bind every future Holder of the same Security and the Holder of everySecurity issued upon the registration of transfer thereof or in exchangetherefor or in lieu thereof in respect of anything done, omitted or suffered tobe done by the Trustee or the Company in reliance thereon, whether or notnotation of such action is made upon such Security.

 

Section 1.05           Notices,Etc., to Trustee and Company.

 

Any request, demand,authorization, direction, notice, consent, waiver or Act of Holders or otherdocument provided or permitted by this Indenture to be made upon, given orfurnished to, or filed with,

 

(1)           the Trustee by any Holder or by theCompany shall be sufficient for every purpose hereunder if made, given,furnished or filed in writing to or with the Trustee at its Corporate TrustOffice, Attention: Trust Officer, or

 

(2)           the Company by the Trustee or by anyHolder shall be sufficient for every purpose hereunder (unless otherwise hereinexpressly provided) if in writing and mailed, first-class postage prepaid, tothe Company, Attention: Chief Executive Officer, addressed to it at the addressof its principal office specified in the first paragraph of this instrument orat any other address previously furnished in writing to the Trustee by theCompany.

 

17

----

 

Section 1.06           Notice to Holders; Waiver.

 

Where this Indenture providesfor communication with or notice to Holders, such notice shall be sufficientlygiven (unless otherwise herein expressly provided) if in writing and mailed,first-class postage prepaid, to each Holder, at his address as it appears inthe Security Register, not later than the latest date (if any), and not earlierthan the earliest date (if any), prescribed for the giving of such notice. Inany case where notice to Holders is given by mail, neither the failure to mailsuch notice, nor any defect in any notice so mailed, to any particular Holdershall affect the sufficiency of such notice with respect to other Holders.Where this Indenture provides for notice in any manner, such notice may bewaived in writing by the Person entitled to receive such notice, either beforeor after the event, and such waiver shall be the equivalent of such notice.Waivers of notice by Holders shall be filed with the Trustee, but such filingshall not be a condition precedent to the validity of any action taken inreliance upon such waiver.

 

In case by reason of thesuspension of regular mail service or by reason of any other cause it shall beimpracticable to give such notice by mail, then such notification as shall bemade with the approval of the Trustee shall constitute a sufficientnotification for every purpose hereunder.

 

Section 1.07           Conflict with Trust Indenture Act.

 

If any provision hereoflimits, qualifies or conflicts with a provision of the Trust Indenture Act thatis required under such Act to be part of and govern this Indenture, theprovisions of the Trust Indenture Act shall control. If any provision of thisIndenture modifies or excludes any provision of the Trust Indenture Act thatmay be so modified or excluded, the provision of this Indenture shall be deemedto apply.

 

Section 1.08           Effect of Headings and Table ofContents.

 

The Article and Sectionheadings herein and the Table of Contents are for convenience only and shallnot affect the construction hereof.

 

Section 1.09           Successors and Assigns.

 

All covenants andagreements in this Indenture by the Company shall bind its successors andassigns, whether so expressed or not.

 

Section 1.10           Separability Clause.

 

In case any provision inthis Indenture or in the Securities shall be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions shall notin any way be affected or impaired thereby.

 

Section 1.11           Benefits of Indenture.

 

Nothing in this Indentureor in the Securities, express or implied, shall give to any Person, other thanthe parties hereto and their successors hereunder, the holders of SeniorIndebtedness (subject to Article XII and XIII hereof) and the Holders ofSecurities, any benefit or any legal or equitable right, remedy or claim underthis Indenture.

 

Section 1.12           Governing Law.

 

**THISINDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTOF LAWS THAT WOULD INDICATE THE APPLICABILITY OF THE LAWS OF ANY OTHERJURISDICTION.**

 

Section 1.13**          **Legal Holidays.

 

In any case where anyInterest Payment Date, Redemption Date, Purchase Date or Stated Maturity of anySecurity is not a Business Day, then (notwithstanding any other provision ofthis Indenture or of the Securities) payment of interest, Liquidated Damages,if any, or principal (and premium, if any) need not be made on such date, butmay be made on the next succeeding Business Day with the same force and effectas if made on the Interest Payment Date, Redemption Date or Purchase Date, orat the Stated Maturity, provided that no interest shall accrue for theperiod from and after such Interest Payment Date, Redemption Date, PurchaseDate or Stated Maturity, as the case may be if such payment is made on such nextsucceeding Business Day.

 

18

----

 

Section 1.14                                No Personal Liability of Directors, Officers,Employees, and Shareholders

 

No director, officer,employee, incorporator, or shareholder of the Company, as such, shall have anyliability for any obligations of the Company under the Securities or thisIndenture or for any claim based on, in respect of, or by reason of, thoseobligations or their creation. Each Holder of Securities, by accepting aSecurity, waives and releases all such liability. The waiver and release arepart of the consideration for issuance of the Securities.

 

Section 1.15           Counterparts

 

This instrument may beexecuted in any number of counterparts, each of which so executed shall bedeemed to be an original, and all of which counterparts shall togetherconstitute but one and the same instrument.

 

ARTICLE II

 

SECURITY FORMS

 

Section 2.01           Forms Generally.

 

The Securities and theTrustee’s certificates of authentication shall be in substantially the formsset forth in this ArticleII, with such appropriate insertions, omissions,substitutions and other variations as are required or permitted by thisIndenture, and may have such letters, numbers or other marks of identificationand such legends or endorsements placed thereon as may be required to complywith the rules of any securities exchange or as may, consistently herewith, bedetermined by the officers executing such Securities, as evidenced by theirexecution of the Securities.

 

The definitive Securitiesshall be printed, lithographed or engraved or produced by any combination ofthese methods on steel engraved borders or may be produced in any other mannerpermitted by the rules of any securities exchange on which the Securities maybe listed, all as determined by the officers executing such Securities, asevidenced by their execution of such Securities.

 

The Rule 144A Securitiesshall initially be represented by one or more Securities in registered, globalform without coupons (collectively, the “Restricted Global Security”).The Initial Regulation S Securities shall initially be represented by one ormore Securities in registered, global form without interest coupons(collectively, the “Regulation S Global Security” and, together with therestricted Global Security, the “Global Securities”). The GlobalSecurities shall be deposited upon issuance with the Trustee as custodian forDTC and registered in the name of DTC or its nominee, in each case for creditto an account of a direct or indirect participant in DTC as described below.Prior to the expiration of the Distribution Compliance Period, beneficialinterests in the Regulation S Global Security may only be held throughEuroclear or Clearstream (as indirect participants in DTC), unless exchanged forinterests in the Restricted Global Security in accordance with the transfer andcertification requirements described in this Indenture.

 

Section 2.02           Form of Face of Security

 

Rule 144A Securities andthe Initial Regulation S Securities (including beneficial interests in theGlobal Securities and, subject to Section 3.06(c), their Successor Securities)shall be subject to certain restrictions on transfer and shall bear a legend insubstantially the following form:

 

THE SECURITIES EVIDENCEDHEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED(THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THISSECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THEABSENCE OF SUCH REGISTRATION R UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOTSUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHERAPPLICABLE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCEHEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONALBUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) OR(B) IT IS NOT A “U.S. PERSON” AND IS ACQUIRING THIS SECURITY IN AN“OFFSHORE TRANSACTION” PURSUANT TO RULE 903 OR 904 OF REGULATION S UNDER THESECURITIES ACT (“REGULATION S”), (2) AGREES THAT IT WILL NOT OFFER, SELL,OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY,(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVEUNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLEFOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITSOWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOMNOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,(D) PURSUANT TO OFFERS AND SALES TO PERSONS OTHER THAN “U.S. PERSONS” IN“OFFSHORE TRANSACTIONS” THAT OCCUR OUTSIDE THE UNITED STATES, WITHIN THE MEANINGOF REGULATION S, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TOANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOMTHIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THISLEGEND;

 

19

----

 

PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVETHE RIGHT PRIOR TO ANY SUCH OFFER, SALE, OR TRANSFER (1) PURSUANT TO CLAUSE(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OROTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THEFOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORMAPPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THETRANSFEROR TO THE COMPANY AND THE TRUSTEE. AS USED HEREIN, THE TERMS “OFFSHORETRANSACTION,” “UNITED STATES,” AND “U.S. PERSON” HAVE THE RESPECTIVE MEANINGSGIVEN TO THEM BY REGULATION S.

 

[**If the Security is a Global Security, then insert**— THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTUREHEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR ANOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR ASECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAYBE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ANOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THEINDENTURE.]

 

[**If the Security is a Global Security and The DepositoryTrust Company is to be the Depositary therefor, then insert** — UNLESSTHIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORYTRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITSAGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATEISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS ISREQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TOCEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZEDREPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OROTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNERHEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

 

9 3⁄4% [SERIES B](1)SENIOR SUBORDINATED NOTES DUE 2010

 
| No. |   |   | $ |   |
|-----|--------|--------|---|--------|

 

[If Restricted Global Security - CUSIP Number__________]

[If Regulation S Global Security - CUSIP Number__________]

[If Non-Global Security - CUSIP Number __________]

 

Rural CellularCorporation, a corporation duly organized and existing under the laws ofMinnesota (herein called the “Company,” which term includes anysuccessor Person under the Indenture hereinafter referred to), for valuereceived, hereby promises to pay to _______________, or registered assigns, theprincipal sum of ___________ Dollars [**if theSecurity is a Global Security, then insert —** , or such otherprincipal amount (which, when taken together with the principal amounts of allother Outstanding Securities, shall not exceed $500,000,000 in the aggregate atany time) as may be set forth in the records of the Trustee hereinafterreferred to in accordance with the Indenture,] on January 15, 2010.

 

The Company shall payinterest in cash on the principal amount hereof from January 16, 2002 or fromthe most recent Interest Payment Date to which interest has been paid or dulyprovided for, at the rate of 9 3⁄4% per annum, until the principal amount hereofis paid or made available for payment. The Company shall pay interest(including post-petition interest in any proceeding under any Bankruptcy Law)in cash (to the extent that the payment of such interest shall be legallyenforceable) at a rate of 103⁄4% per annum on any overdue principal and premium,if any, and on any overdue installment of interest and Liquidated Damages (withoutregard to any applicable grace periods), if any, until paid. The Company shallpay Liquidated Damages, if any, in cash as provided in the Registration RightsAgreement. The Company shall pay interest and Liquidated Damages, if any,semi-annually on January 15 and July 15 in each year, commencing July 15, 2002.

 

The interest so payable,and punctually paid or duly provided for, on any Interest Payment Date shall,as provided in such Indenture, be paid to the Person in whose name thisSecurity (or one or more Predecessor Securities) is registered at the close ofbusiness on the Regular Record Date for such interest, which shall be January 1or July 1 (whether or not a Business Day), as the case may be, next precedingsuch Interest Payment Date [**if the Securityis an Original Security, then insert****—**, provided that any accrued and unpaid interest (includingLiquidated Damages, if any) on this Security upon the issuance of an ExchangeSecurity in exchange for this Security shall cease to be payable to the Holderhereof and shall be payable on the next Interest Payment Date for such ExchangeSecurity to the Holder thereof on the related Regular Record Date]. Any suchinterest or Liquidated Damages not so punctually paid or duly provided forshall forthwith cease to be payable to the Holder on such Regular Record Dateand may either be paid to the Person in whose name this Security (or one ormore Predecessor Securities) is registered at the close of business on aSpecial Record Date for the payment of such Defaulted Interest to be fixed bythe Trustee, notice of which shall be given to Holders of Securities not lessthan 10 days prior to such Special Record Date, or be paid at any time in anyother lawful manner not inconsistent with the requirements of any securitiesexchange on which the Securities may be listed, and upon such notice as may berequired by such exchange, all as more fully provided in the Indenture.

 

----

(1)     Include only for Exchange Securities.

 

20

----

 

Payment of the principalof (and premium, if any) and interest (and Liquidated Damages, if any), on thisSecurity shall be made at the Corporate Trust Office or at the office or agencyof the Company maintained for that purpose in the Borough of Manhattan, NewYork City, in such coin or currency of the United States of America as at thetime of payment is legal tender for payment of public and private debts; *provided*, *however*, that at the option of theCompany payment of interest or Liquidated Damages, if any, may be made by checkmailed to the address of the Person entitled thereto as such address shallappear in the Security Register. Notwithstanding the foregoing, if a Holder hasgiven wire transfer instructions to the Company, the Company shall pay all principal,interest, premium and Liquidated Damages, if any, on that Holder’s Securitiesin accordance with those instructions.

 

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

 

Unless the certificate ofauthentication hereon has been executed by the Trustee referred to on thereverse hereof by manual signature, this Security shall not be entitled to anybenefit under the Indenture or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, theCompany has caused this instrument to be duly executed.

 

Dated:

 
|   | RURAL CELLULAR  CORPORATION |
|--------|-----------------------------|
|   |                        |
|   | By:                         |   |
|   | Name:                       |
|   | Title:                      |

 

Section 2.03           Form of Reverse of Security.

 

This Security is one of aduly authorized issue of securities of the Company designated as its 9 3⁄4%[Series B](2) Senior Subordinated Notes due 2010 (herein called the “Securities”),limited in aggregate principal amount to $500,000,000, issued and to be issuedunder an Indenture, dated as of January 16, 2002 (herein called the “Indenture”),between the Company and Wells Fargo Bank Minnesota, N.A., as Trustee (hereincalled the “Trustee,” which term includes any successor trustee underthe Indenture), to which Indenture and all indentures supplemental theretoreference is hereby made for a statement of the respective rights, limitationsof rights, duties and immunities thereunder of the Company, the Trustee, theholders of Senior Indebtedness and the Holders of the Securities and of theterms upon which the Securities are, and are to be, authenticated anddelivered.

 

On or after January 15,2006, the Securities may be redeemed at any time at the option of the Company,in whole or from time to time in part, at the following Redemption Prices(expressed as percentages of the principal amount thereof), together withaccrued and unpaid interest and Liquidated Damages, if any, to but excludingthe date fixed for redemption, if redeemed during the 12-month period beginningJanuary 15 of the years indicated,

 

| **Year**            |   | **Redemption  Price** |
|---------------------|--------|-----------------------|
| 2006                |   | 104.875%              |
| 2007                |   | 103.250%              |
| 2008                |   | 101.625%              |
| 2009 and thereafter |   | 100.000%              |

 

together in the case of any such redemption withaccrued interest to but excluding the Redemption Date, but any interestinstallment whose Stated Maturity is on or prior to such Redemption Date willbe payable to the Holders of such Securities, or one or more PredecessorSecurities, of record at the close of business on the relevant Record Datesreferred to on the face hereof, all as provided in the Indenture.

 

Notwithstanding theforegoing, at any time prior to January 15, 2005, the Company may redeem up to35% of the aggregate principal amount of Securities actually issued under theIndenture (including Additional Securities but without taking into accountExchange Securities) from the net cash proceeds of a Qualifying Event at aRedemption Price equal to 109.750% of the aggregate principal amount thereof,together with accrued and unpaid interest and Liquidated Damages, if any, tobut excluding the Redemption Date; *provided*,that at least 65% in aggregate principal amount of Securities issued under theIndenture (including Additional Securities but without taking into accountExchange Securities) remains outstanding immediately following such redemption.Any such redemption must be made within 30days after the related QualifyingEvent.

 

----

(2)    Include only for Exchange Securities.

 

21

----

 

Notice of any optionalredemption of any Securities (or portion thereof) will be given to the Holdersat their addresses appearing in the Security Register not less than 30 nor morethan 60 days prior to the Redemption Date. The notice of redemption shall statethe Redemption Date, the Redemption Price, if less than all the OutstandingSecurities are to be redeemed, principal amounts of the particular Securitiesto be redeemed, that on the Redemption Date the Redemption Price will becomedue and payable upon each Security to be redeemed and the place or places wheresuch Securities are to be surrendered for payment of the Redemption Price. Ifless than all of the Securities are to be redeemed, the particular Securitiesto be redeemed shall be selected not more than 60 days prior to the RedemptionDate by the Trustee by such method as the Trustee deems fair and appropriate.

 

The Securities do nothave the benefit of any sinking fund obligations.

 

In the event ofredemption or purchase pursuant to an Offer to Purchase of this Security in partonly, a new Security or Securities for the unredeemed or unpurchased portionhereof will be issued in the name of the Holder hereof upon the cancellationhereof.

 

The Indebtednessevidenced by this Security is, to the extent provided in the Indenture, subordinateand subject in right of payment to the prior payment in full of all SeniorIndebtedness, and this Security is issued subject to the provisions of theIndenture with respect thereto. Each Holder of this Security, by accepting thesame, (a) agrees to and shall be bound by such provisions,(b) authorizes and directs the Trustee on his behalf to take such actionas may be necessary or appropriate to effectuate the subordination so providedand (c) appoints the Trustee his attorney-in-fact for any and all suchpurposes.

 

If an Event of Defaultshall occur and be continuing, the principal of all the Securities may bedeclared or automatically become due and payable in the manner and with theeffect provided in the Indenture.

 

The Indenture providesthat, subject to certain conditions, if (i) certain Net Cash Proceeds areavailable to the Company as a result of Asset Sales or (ii) a Change ofControl occurs, the Company shall be required to make an Offer to Purchase forthe Securities.

 

The Indenture containsprovisions for defeasance at any time of (i) the entire indebtedness ofthis Security or (ii)certain restrictive covenants and Events of Default withrespect to this Security, in each case upon compliance with certain conditionsset forth therein.

 

The Indenture permits,with certain exceptions as therein provided, the amendment thereof and themodification of the rights and obligations of the Company and the rights of theHolders of the Securities under the Indenture at any time by the Company and theTrustee with the consent of the Holders of a majority in aggregate principalamount of the Securities at the time Outstanding. The Indenture also containsprovisions permitting the Holders of specified percentages in aggregateprincipal amount of the Securities at the time Outstanding, on behalf of theHolders of all the Securities, to waive compliance by the Company with certainprovisions of the Indenture and certain past defaults under the Indenture andtheir consequences. Any such consent or waiver by the Holder of this Securityshall be conclusive and binding upon such Holder and upon all future Holders ofthis Security and of any Security issued upon the registration of transferhereof or in exchange herefor or in lieu hereof, whether or not notation ofsuch consent or waiver is made upon this Security.

 

No reference herein tothe Indenture and no provision of this Security or of the Indenture shall alteror impair the obligation of the Company, which is absolute and unconditional,to pay the principal of (and premium, if any), interest (and LiquidatedDamages, if any), on this Security at the time, place and rate, and in the coinor currency, herein prescribed.

 

As provided in theIndenture and subject to certain limitations therein set forth, the transfer ofthis Security is registrable in the Security Register, upon surrender of thisSecurity for registration of transfer at the Corporate Trust Office or at theoffice or agency of the Company in the Borough of Manhattan, New York City,duly endorsed by, or accompanied by a written instrument of transfer in formsatisfactory to the Company and the Security Registrar duly executed by, theHolder hereof or his attorney duly authorized in writing, and thereupon one ormore new Securities, of authorized denominations and for the same aggregateprincipal amount, will be issued to the designated transferee or transferees.

 

The Securities areissuable only in registered form without coupons in denominations of $1,000 andany integral multiple thereof. As provided in the Indenture and subject tocertain limitations therein set forth, the Securities are exchangeable for alike aggregate principal amount of Securities of a different authorizeddenomination, as requested by the Holder surrendering the same.

 

No service charge shallbe made for any such registration of transfer or exchange, but the Company mayrequire payment of a sum sufficient to cover any tax or other governmentalcharge payable in connection therewith.

 

Prior to due presentmentof this Security for registration of transfer, the Company, the Trustee and anyagent of the Company or the Trustee may treat the Person in whose name thisSecurity is registered as the owner hereof for all purposes, whether or notthis Security be overdue, and neither the Company, the Trustee nor any suchagent shall be affected by notice to the contrary.

 

22

----

 

Interest on this Securityshall be computed on the basis of a 360-day year of twelve 30-day months [**if the Security is an Original Security, then insert—**;*provided*, *however*, that any Liquidated Damagesshall be computed on the basis of a 365- or 366- day year, as the case may be,and the number of days actually elapsed].

 

All terms used in thisSecurity which are not defined herein but which are defined in the Indentureshall have the meanings assigned to them in the Indenture. In the event thatany provision in this Security conflicts with any provision in the Indenture,the provision contained in the Indenture shall control.

 

The Indenture and thisSecurity shall be governed by and construed in accordance with the laws of theState of New York, without regard to principles of conflicts of laws that wouldindicate the applicability of the laws of any other jurisdiction.

 

23

----

 

OPTION OF HOLDERTO ELECT PURCHASE

**Chooseone**:

 

If you want to elect tohave this Security purchased in its entirety by the Company pursuant to Section10.15 or 10.17 of the Indenture, check the box: o

 

If you want to elect tohave only a part of this Security purchased by the Company pursuant to Section10.15 or 10.17 of the Indenture, state the amount: $_______

 
| Dated:               | Your Signature:                                                                                                          |   |
|----------------------|--------------------------------------------------------------------------------------------------------------------------|--------|
|                 | (Sign exactly as  name appears on  the other side of this Security)                                                      |
|                 |                                                                                                                     |
| Signature Guarantee: |                                                                                                                     |   |
|                 | (Signature must be  guaranteed  by a member firm of the New York  Stock Exchange or a commercial  bank or trust company) |
|                 |                                                                                                                     |   |   |   |   |
|                      |                                                                                                                          |        |  |  |  |  |

 

Section 2.04           Form of Trustee’s Certificate ofAuthentication.

 

This is one of theSecurities referred to in the within-mentioned Indenture.

 
|   | Wells Fargo Bank  Minnesota, N.A., |
|--------|------------------------------------|
|   | as Trustee                         |
|   |                               |
|   | By:                                |   |
|   | Authorized Officer                 |

 

ARTICLE III

 

THE SECURITIES

 

Section 3.01           Title and Terms.

 

The aggregate principalamount of Securities which may be authenticated and delivered under thisIndenture is limited to $500,000,000, except for Exchange Securities andSecurities authenticated and delivered upon registration of transfer of, or inexchange for, or in lieu of, other Securities pursuant to Section 3.04, 3.05, 3.06,3.07, 9.06 or 11.08 or in connection with an Offer to Purchase pursuant toSection 10.15 or 10.17.

 

Subject to Section 3.03,the Trustee shall authenticate Original Securities for original issue on thedate of this Indenture in the aggregate principal amount of $300,000,000. Withrespect to any securities issued after the date of this Indenture (except forSecurities authenticated and delivered upon registration of transfer of, or inexchange for, or in lieu of, Original Securities pursuant to this Indenture),there shall be established in or pursuant to a resolution of the Board ofDirectors of the Company, and subject to Section 3.03, set forth, or determinedin the manner provided in an Officers’ Certificate, or established in one ormore indentures supplemental hereto, prior to the issuance of such Securities(“Additional Securities”):

 

(1) the aggregateprincipal amount of such Additional Securities that may be authenticated anddelivered under this Indenture (which shall not be less than $25,000,000);

 

(2) the issue price andissuance date of such Additional Securities that may be authenticated anddelivered under this Indenture; and

 

(3) that such AdditionalSecurities shall be issuable in the same form as the then OutstandingSecurities and having the same terms (other than with respect to transferrestrictions and registration rights) as the then Outstanding Securities andthe same depositaries.

 

24

----

 

The Original Securities shall be known and designatedas the “9 3⁄4% Senior Subordinated Notes due 2010” and the Exchange Securitiesshall be known and designated as the “9 3⁄4% Series B Senior Subordinated Notesdue 2010,” in each case, of the Company. Their Stated Maturity shall beJanuary 15, 2010 and they shall bear interest at the rate of 9 3⁄4% perannum, from January 16, 2002 or from the most recent Interest Payment Dateto which interest has been paid in cash or duly provided for, as the case maybe, payable semi-annually on January 15, and July 15 commencing onJuly 15, 2002, to the Holders of record on the immediately precedingJanuary 1, and July 1, until the principal thereof is paid or made availablefor payment; *provided*, *however*, that the Original Securitiesshall be subject to the payment of Liquidated Damages as set forth in theRegistration Rights Agreement. The Liquidated Damages so payable, andpunctually paid or duly provided for in respect of any Security, on anyInterest Payment Date shall, as provided in this Indenture and the RegistrationRights Agreement, be paid to the Person in whose name such Security (or one ormore Predecessor Securities) is registered at the close of business on theRegular Record Date for such interest, which shall be January 1 or July 1(whether or not a Business Day), as the case may be, next preceding suchInterest Payment Date. Accrued Liquidated Damages, if any, shall be paid incash in arrears semi-annually on January 15 and July 15, in each year and theamount of accrued Liquidated Damages shall be determined on the basis of thenumber of days actually elapsed and computed as provided in Section 3.11.

 

The principal of (andpremium, if any) and interest (and Liquidated Damages, if any), on theSecurities shall be payable at the Corporate Trust Office or at the office oragency of the Company in the City and State of New York maintained for suchpurpose; *provided*, *however*, that at the option of theCompany payment of interest and Liquidated Damages, if any, may be made bycheck mailed to the address of the Person entitled thereto as such addressshall appear in the Security Register. Notwithstanding the foregoing, if aHolder has given wire transfer instructions to the Company, the Company shallpay all principal, interest, premium and Liquidated Damages, if any, on thatHolder’s Securities in accordance with those instructions.

 

The Securities shall besubject to repurchase by the Company pursuant to an Offer to Purchase asprovided in Sections 10.15 and 10.17.

 

The Securities shall beredeemable as provided in Article XI.

 

The Securities shall besubordinated in right of payment to Senior Indebtedness as provided in ArticleXII.

 

The Securities shall besubject to defeasance at the option of the Company as provided in Article XIII.

 

Section 3.02           Denominations.

 

The Securities shall beissuable only in registered form without coupons and only in denominations of$1,000 and any integral multiples thereof.

 

Section 3.03            Execution, Authentication, Deliveryand Dating.

 

The Securities shall beexecuted on behalf of the Company by its Chief Executive Officer, its Presidentor one of its Vice Presidents.  Thesignature of any of these officers on the Securities may be manual orfacsimile.

 

Securities bearing themanual or facsimile signatures of individuals who were at any time the properOfficers of the Company shall bind the Company, notwithstanding that suchindividuals or any of them have ceased to hold such offices prior to theauthentication and delivery of such Securities or did not hold such offices atthe date of such Securities.

 

At any time and from timeto time after the execution and delivery of this Indenture, the Company maydeliver Securities executed by the Company to the Trustee for authentication,together with a Company Order for the authentication and delivery of suchSecurities; and the Trustee in accordance with such Company Order shallauthenticate and deliver such Securities as in this Indenture provided and nototherwise.

 

At any time and from timeto time after the execution and delivery of this Indenture and after theeffectiveness of a registration statement under the Securities Act with respectthereto, the Company may deliver Exchange Securities executed by the Company tothe Trustee for authentication, together with a Company Order for the authenticationand delivery of such Exchange Securities and a like principal amount ofOriginal Securities for cancellation in accordance with Section 3.10 of thisIndenture, and the Trustee in accordance with the Company Order shallauthenticate and deliver such Securities. Prior to authenticating such ExchangeSecurities, and accepting any additional responsibilities under this Indenturein relation to such Securities, the Trustee shall be entitled to receive, ifrequested, and (subject to Section 6.01) shall be fully protected in relyingupon, an Opinion of Counsel stating in substance

 

(a)           that all conditions hereunderprecedent to the authentication and delivery of such Exchange Securities havebeen complied with and that such Exchange Securities, when such Securities havebeen duly authenticated and delivered by the Trustee (and subject to any otherconditions specified in such Opinion of Counsel), have been duly issued anddelivered and will constitute valid and legally binding obligations of theCompany enforceable in accordance with their terms, subject to bankruptcy,insolvency, fraudulent transfer, reorganization, moratorium and similar laws ofgeneral applicability relating to or affecting creditors’ rights and to generalequity principles; and

 

25

----

 

(b)           that the issuance of the ExchangeSecurities in exchange for Original Securities has been effected in compliancewith the Securities Act.

 

Each Security shall bedated the date of its authentication.

 

No Security shall beentitled to any benefit under this Indenture or be valid or obligatory for anypurpose unless there appears on such Security a certificate of authenticationsubstantially in the form provided for herein executed by the Trustee by manualsignature, and such certificate upon any Security shall be conclusive evidence,and the only evidence, that such Security has been duly authenticated anddelivered hereunder.

 

Section 3.04           Temporary Securities.

 

Pending the preparationof definitive Securities, the Company may execute, and upon Company Order theTrustee shall authenticate and deliver, temporary Securities which are printed,lithographed, typewritten, mimeographed or otherwise produced, in anyauthorized denomination, substantially of the tenor of the definitiveSecurities in lieu of which they are issued and with such appropriateinsertions, omissions, substitutions and other variations as the officersexecuting such Securities may determine, as evidenced by their execution ofsuch Securities.

 

If temporary Securitiesare issued, the Company will cause definitive Securities to be prepared withoutunreasonable delay. After the preparation of definitive Securities, thetemporary Securities shall be exchangeable for definitive Securities upon surrenderof the temporary Securities at any office or agency of the Company designatedpursuant to Section 10.02, without charge to the Holder. Upon surrenderfor cancellation of any one or more temporary Securities the Company shallexecute and the Trustee shall authenticate and deliver in exchange therefor alike principal amount of definitive Securities of authorized denominations.Until so exchanged the temporary Securities shall in all respects be entitledto the same benefits under this Indenture as definitive Securities.

 

Section 3.05           Global Securities.

 

(a)           Each Global Security authenticatedunder this Indenture shall be registered in the name of the Depositarydesignated by the Company for such Global Security or a nominee thereof anddelivered to such Depositary or a nominee thereof or custodian therefor, andeach such Global Security shall constitute a single Security for all purposesof this Indenture.

 

(b)           Notwithstanding any other provisionin this Indenture, no Global Security may be exchanged in whole or in part forSecurities registered, and no transfer of a Global Security in whole or in partmay be registered, in the name of any Person other than the Depositary for suchGlobal Security or a nominee thereof unless (i) such Depositary (A) hasnotified the Company that it is unwilling or unable to continue as Depositaryfor such Global Security or (B) has ceased to be a clearing agencyregistered as such under the Exchange Act, (ii) there shall have occurredand be continuing a Default or Event of Default with respect to such GlobalSecurity, (iii) the Company executes and delivers to the Trustee a CompanyOrder stating that it elects to cause the issuance of the Securities incertificated form and that all Global Securities shall be exchanged in wholefor Securities that are not Global Securities (in which case such exchangeshall be effected by the Trustee) or (iv) pursuant to the followingsentence. All or any portion of a Global Security may be exchanged for aSecurity that has a like aggregate principal amount and is not a GlobalSecurity, upon 20 days’ prior written request made by the Depositary or itsauthorized representative to the Trustee.

 

(c)           If any Global Security is to beexchanged for other Securities or canceled in whole, it shall be surrendered byor on behalf of the Depositary or its nominee to the Trustee, as SecurityRegistrar, for exchange or cancellation as provided in this Article III. If anyGlobal Security is to be exchanged for other Securities or canceled in part, orif another Security is to be exchanged in whole or in part for a beneficialinterest in any Global Security, then either (i) such Global Securityshall be so surrendered for exchange or cancellation as provided in thisArticle III or (ii) the principal amount thereof shall be reduced orincreased by an amount equal to the portion thereof to be so exchanged orcanceled, or equal to the principal amount of such other Security to beexchanged for a beneficial interest therein, as the case may be, by means of anappropriate adjustment made on the records of the Trustee, as SecurityRegistrar, whereupon the Trustee, in accordance with the Applicable Procedures,shall instruct the Depositary or its authorized representative to make acorresponding adjustment to its records. Upon any such surrender or adjustmentof a Global Security, the Trustee shall, subject to Section 3.05(b) and asotherwise provided in this Article III, authenticate and deliver any Securitiesissuable in exchange for such Global Security (or any portion thereof) to orupon the order of, and registered in such names as may be directed by, theDepositary or its authorized representative. Upon the request of the Trustee inconnection with the occurrence of any of the events specified in the precedingparagraph, the Company shall promptly make available to the Trustee areasonable supply of Securities that are not in the form of Global Securities.The Trustee shall be entitled to rely upon any order, direction or request ofthe Depositary or its authorized representative which is given or made pursuantto this Article III if such order, direction or request is given or made inaccordance with the Applicable Procedures.

 

(d)           Every Security authenticated anddelivered upon registration of transfer of, or in exchange for or in lieu of, aGlobal Security or any portion thereof, whether pursuant to this Article III,Section 9.06, 10.15, 10.17 or 11.08 or 

 

26

----

 

otherwise, shall be authenticated and delivered in theform of, and shall be, a Global Security, unless such Security is registered inthe name of a Person other than the Depositary for such Global Security or anominee thereof.

 

(e)           The Depositary or its nominee, asregistered owner of a Global Security, shall be the Holder of such GlobalSecurity for all purposes under the Indenture and the Securities, and owners ofbeneficial interests in a Global Security shall hold such interests pursuant tothe Applicable Procedures. Accordingly, any such owner’s beneficial interest ina Global Security shall be shown only on, and the transfer of such interestshall be effected only through, records maintained by the Depositary or itsnominee or its Agent Members.

 

Section 3.06           Registration; Registration ofTransfer and

Exchange Generally;Certain Transfers and 

Exchanges; Securities ActLegends.

 

(a)           Registration; Registration ofTransfer and Exchange Generally. The Company shall cause to be kept at theCorporate Trust Office a register (the register maintained in such office andin any other office or agency designated pursuant to Section 10.02 being hereinsometimes collectively referred to as the “Security Register”) in which,subject to such reasonable regulations as it may prescribe, the Company shallprovide for the registration of Securities and of transfers and exchanges ofSecurities. The Trustee is hereby appointed “Security Registrar” for thepurpose of registering Securities and transfers and exchanges of Securities asherein provided. Such Security Register shall distinguish between OriginalSecurities and Exchange Securities.

 

Upon surrender forregistration of transfer of any Security at an office or agency of the Companydesignated pursuant to Section 10.02 for such purpose, the Company shallexecute, and the Trustee shall authenticate and deliver, in the name of thedesignated transferee or transferees, one or more new Securities of anyauthorized denominations, of a like aggregate principal amount and bearing suchrestrictive legends as may be required by this Indenture.

 

At the option of theHolder, Securities may be exchanged for new Securities of any authorizeddenominations, of a like aggregate principal amount and bearing suchrestrictive legends as may be required by this Indenture, upon surrender of theSecurities to be exchanged at such office or agency. Whenever any Securitiesare so surrendered for exchange, the Company shall execute, and the Trusteeshall authenticate and deliver, the Securities which the Holder making theexchange is entitled to receive.

 

All Securities issuedupon any registration of transfer or exchange of Securities shall be the validObligations of the Company, evidencing the same debt, and (except for thedifferences between Original Securities and Exchange Securities provided forherein) entitled to the same benefits under this Indenture, as the Securitiessurrendered upon such registration of transfer or exchange.

 

Every Security presentedor surrendered for registration of transfer or for exchange shall (if sorequired by the Company or the Trustee) be duly endorsed, or be accompanied bya written instrument of transfer in form satisfactory to the Company and theSecurity Registrar duly executed, by the Holder thereof or his attorney dulyauthorized in writing.

 

No service charge shallbe made for any registration of transfer or exchange of Securities, but theCompany may require payment of a sum sufficient to cover any tax or othergovernmental charge that may be imposed in connection with any registration oftransfer or exchange of Securities, other than exchanges pursuant to Section3.04, 3.05, 3.06, 9.06, 10.15, 10.17 or 11.08 not involving any transfer.

 

The Company shall not berequired (i) to issue, register the transfer of or exchange any Security duringa period beginning at the opening of business 15 days before the day of themailing of a notice of redemption of Securities selected for redemption underSection 11.04 and ending at the close of business on the day of suchmailing, or (ii) to register the transfer of or exchange any Security soselected for redemption, in whole or in part, except the unredeemed portion ofany Security being redeemed in part.

 

The provisions of the“Operating Procedures of the Euroclear System,” the “Terms and ConditionsGoverning Use of Euroclear,” the “General Terms and Conditions of ClearstreamBanking” and the “Customer Handbook” of Clearstream shall be applicable totransfers of beneficial interests in the Regulation S Global Notes that areheld through Euroclear or Clearstream.

 

(b)           Certain Transfers and Exchanges.Notwithstanding any other provision of this Indenture or the Securities,transfers and exchanges of Securities and beneficial interests in a GlobalSecurity of the kinds specified in this Section 3.06(b) shall be made onlyin accordance with this Section 3.06(b).

 

(i)            Exchanges Between the RestrictedGlobal Security and the Regulation S Global Security.

 

27

----

 

(A)          Beneficialinterests in the Restricted Global Security may be exchanged for beneficialinterests in the Regulation S Global Security and vice versa only in connectionwith a transfer of such interest. Such transfers are subject to compliance withthe certification requirements described below.

 

(B)           Abeneficial interest in the Restricted Global Security may be transferred to aPerson who takes delivery in the form of an interest in the Regulation S GlobalSecurity, whether before or after the expiration of the Distribution CompliancePeriod, only upon receipt by the Trustee of a written certification on behalfof the transferor to the effect that such transfer is being made in accordancewith Rule904 of Regulation S or (if available) Rule144 under the Securities Actand that, if such transfer occurs prior to the expiration of the DistributionCompliance Period, the interest transferred will be held immediately thereafterthrough Euroclear or Clearstream.

 

(C)           Priorto the expiration of the Distribution Compliance Period, a beneficial interestin the Regulation S Global Security may be transferred to a person who takesdelivery in the form of an interest in the Restricted Global Security only ifsuch transfer is made pursuant to Rule 144A and the transferor first deliversto the Trustee a written certification on behalf of the transferor to theeffect that such transfer is being made to a person who the transferorreasonably believes is a qualified institutional buyer acquiring for its ownaccount or the account of a qualified institutional buyer in a transactioncomplying with Rule144A and any applicable securities laws of the states of theUnited States and other jurisdictions. After the expiration of the DistributionCompliance Period, this certification requirement shall no longer apply to suchtransfers.

 

(D)          Anybeneficial interest in one of the Global Securities that is exchanged for aninterest in the other Global Security shall cease to be an interest in suchGlobal Security and shall become an interest in the other Global Security.Accordingly, such interest shall thereafter be subject to all transferrestrictions and other procedures applicable to beneficial interests in suchother Global Security for as long as it remains such an interest.

 

(E)           Anyexchange of a beneficial interest in the Regulation S Global Security for abeneficial interest in the Restricted Global Security or vice versa will beeffected in DTC by means of an instruction originated by the Trustee throughthe DTC Deposit/Withdrawal at Custodian (“DWAC”) system.

 

(ii)           Exchanges of Global Securities forCertificated Securities. A beneficial interest in a Global Securitymay not be exchanged for a Security in certificated form except as provided inSection 3.05(b). Any certificated Security issued in exchange for an interestin a Global Security shall bear the legend restricting transfers that is borneby such Global Security. Any such exchange shall be effected only through theDWAC System, and an appropriate adjustment shall be made in the records of theSecurity Register to reflect a decrease in the principal amount of the relevantGlobal Security.

 

(c)           Securities Act Legends.Rule144A Securities and their respective Successor Securities shall bear aSecurities Act Legend, and Initial Regulation S Securities and their SuccessorSecurities shall bear a Securities Act Legend, subject to the following:

 

(i)            subject to the following Clauses ofthis Section 3.06(c), a Security or any portion thereof which is exchanged,upon transfer or otherwise, for a Global Security or any portion thereof shallbear the Securities Act Legend borne by such Global Security while representedthereby;

 

(ii)           subject to the following Clauses ofthis Section 3.06(c), a new Security which is not a Global Security and isissued in exchange for another Security (including a Global Security) or anyportion thereof, upon transfer or otherwise, shall bear the Securities ActLegend borne by such other Security;

 

(iii)          Registered Securities shall not bear aSecurities Act Legend;

 

(iv)          in connection with a transfer orexchange of Securities or beneficial interests therein, (1)a new Security notbearing a Securities Act Legend may be issued in exchange for or in lieu of aSecurity (other than a Global Security) or any portion thereof bearing such alegend and (2)beneficial interests in a Security bearing a Securities ActLegend may be exchanged for beneficial interests in a Security not bearing sucha legend, in each case, only if:

 

(A)          suchtransfer or exchange is effected pursuant to an Exchange Offer in accordancewith a Registration Rights Agreement, and the recipient of such Securities orbeneficial interests certifies that it is not (1) a broker-dealer, (2) a Personparticipating in a distribution of the Exchange Securities or (3) a Person whois an affiliate (as defined in Rule 144) of the Company;

 

(B)           suchtransfer or exchange is effected pursuant to a Shelf Registration Statement inaccordance with a Registration Rights Agreement;

 

28

----

 

(C)           suchtransfer or exchange is effected by a broker-dealer registered under theExchange Act pursuant to an Exchange Registration Statement;

 

(D)          inthe case of a transfer of a Security or beneficial interest therein, (1) thetransferor certifies in writing to the Security Registrar that (I) therestrictions on transfer contained in the Securities Act Legend are notrequired to maintain compliance with the Securities Act, (II) such transfer isbeing effected pursuant to (x) Rule 144, (y) Rule 903 or 904 of Regulation S or(z) another exemption from registration under the Securities Act and (III) suchtransfer is in compliance with all applicable State securities laws, and (2) ifthe Security Registrar so requests (or if required by any ApplicableProcedures), the Security Registrar has received an Opinion of Counsel in formreasonably acceptable to the Security Registrar that such transfer is incompliance with the Securities Act, and the restrictions on transfer containedin the Securities Act Legend are not required to maintain compliance with theSecurities Act; or

 

(E)           inthe case of an exchange by an owner of a Security with a Securities Act Legend(or beneficial interest therein) for a Security without a Securities Act Legend(or beneficial interest therein), (1) such owner certifies in writing to theSecurity Registrar that (I) the restrictions on transfer contained in theSecurities Act Legend are not required to maintain compliance with theSecurities Act, (II) the Security (or beneficial interest therein) beingreceived in the exchange by such owner is being acquired for such owner’s ownaccount without transfer, (III) such exchange is being effected in compliancewith the Securities Act and with all transfer restrictions applicable to theSecurity (or beneficial interest therein) contained in the Indenture, and (IV)such transfer is in compliance with all applicable State securities laws, and(2) if the Security Registrar so requests (or if required by any ApplicableProcedures), the Security Registrar has received an Opinion of Counsel in formreasonably acceptable to the Security Registrar that such transfer is incompliance with the Securities Act, and the restrictions on transfer containedin the Securities Act Legend are not required to maintain compliance with theSecurities Act; and

 

(v)           notwithstanding the foregoingprovisions of this Section 3.06(c), a Successor Security of a Security thatdoes not bear a particular form of Securities Act Legend shall bear aSecurities Act Legend if the Company has reasonable cause to believe that suchSuccessor Security is a “restricted security” within the meaning of Rule144, inwhich case the Trustee, at the direction of the Company, shall authenticate anddeliver a new Security bearing a Securities Act Legend in exchange for suchSuccessor Security as provided in this Article III.

 

Section 3.07            Mutilated, Destroyed, Lost and StolenSecurities.

 

If any mutilated Securityis surrendered to the Trustee, the Company shall execute and the Trustee shallauthenticate and deliver in exchange therefor a new Security of like tenor andprincipal amount and bearing a number not contemporaneously outstanding.

 

If there shall bedelivered to the Company and the Trustee (i) evidence to theirsatisfaction of the destruction, loss or theft of any Security and(ii) such security or indemnity as may be required by them to save each ofthem and any agent of either of them harmless, then, in the absence of noticeto the Company or the Trustee that such Security has been acquired by a bonafide purchaser, the Company shall execute and upon its request the Trusteeshall authenticate and deliver, in lieu of any such destroyed, lost or stolenSecurity, a new Security of like tenor and principal amount and bearing anumber not contemporaneously outstanding.

 

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

 

Upon the issuance of anynew Security under this Section, the Company may require the payment of a sumsufficient to cover any tax or other governmental charge that may be imposed inrelation thereto and any other expenses (including the fees and expenses of theTrustee) connected therewith.

 

Every new Security issuedpursuant to this Section in lieu of any destroyed, lost or stolen Securityshall constitute an original additional contractual obligation of the Company,whether or not the destroyed, lost or stolen Security is at any timeenforceable by anyone, and shall be entitled to all the benefits of thisIndenture equally and proportionately with any and all other Securities dulyissued hereunder.

 

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

 

Section 3.08           Payment of Interest; InterestRights Preserved.

 

Interest or LiquidatedDamages on any Security that are payable, and are punctually paid or dulyprovided for, on any Interest Payment Date shall be paid to the Person in whosename that Security (or one or more Predecessor Securities) is registered at theclose of business on the Regular Record Date for such interest or LiquidatedDamages.

 

29

----

 

Any interest orLiquidated Damages on any Security that are payable, but are not punctuallypaid or duly provided for, on any Interest Payment Date (herein called “DefaultedInterest”) shall forthwith cease to be payable to the Holder on therelevant Regular Record Date by virtue of having been held by such Holder, andsuch Defaulted Interest may be paid by the Company, at its election in eachcase, as provided in Clause (a) or (b) below:

 

(a)           The Company may elect to make paymentof any Defaulted Interest to the Persons in whose names the Securities (ortheir respective Predecessor Securities) are registered at the close ofbusiness on a date (a “Special Record Date”) for the payment of suchDefaulted Interest, which shall be fixed in the following manner. The Companyshall notify the Trustee in writing of the amount of Defaulted Interestproposed to be paid on each Security and the date of the proposed payment, andat the same time the Company shall deposit with the Trustee an amount of moneyequal to the aggregate amount proposed to be paid in respect of such DefaultedInterest or shall make arrangements satisfactory to the Trustee for suchdeposit prior to the date of the proposed payment, such money when deposited tobe held in trust for the benefit of the Persons entitled to such DefaultedInterest as in this Clause provided. Thereupon the Trustee shall fix a SpecialRecord Date for the payment of such Defaulted Interest which shall be not morethan 15 days and not less than 10 days prior to the date of the proposedpayment and not less than 10 days after the receipt by the Trustee of thenotice of the proposed payment. The Trustee shall promptly notify the Companyof such Special Record Date and, in the name and at the expense of the Company,shall cause notice of the proposed payment of such Defaulted Interest and theSpecial Record Date therefor to be mailed, first-class postage prepaid, to eachHolder at his address as it appears in the Security Register, not less than 10days prior to such Special Record Date. Notice of the proposed payment of suchDefaulted Interest and the Special Record Date therefor having been so mailed,such Defaulted Interest shall be paid to the Persons in whose names theSecurities (or their respective Predecessor Securities) are registered at theclose of business on such Special Record Date and shall no longer be payablepursuant to the following Clause (b).

 

(b)           The Company may make payment of anyDefaulted Interest in any other lawful manner not inconsistent with therequirements of any securities exchange on which the Securities may be listed,and upon such notice as may be required by such exchange, if, after noticegiven by the Company to the Trustee of the proposed payment pursuant to thisClause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoingprovisions of this Section, each Security delivered under this Indenture uponregistration of transfer of or in exchange for or in lieu of any other Securityshall carry the rights to interest or Liquidated Damages, if any, accrued andunpaid, and to accrue interest and Liquidated Damages, if any, which werecarried by such other Security.

 

Section 3.09           Persons Deemed Owners.

 

Prior to due presentmentof a Security for registration of transfer, the Company, the Trustee and anyagent of the Company or the Trustee may treat the Person in whose name suchSecurity is registered as the owner of such security for the purpose ofreceiving payment of principal of (and premium, if any) and (subject to Section3.08) interest (and Liquidated Damages, if any), on such Security and for allother purposes whatsoever, whether or not such Security be overdue, and neitherthe Company, the Trustee nor any agent of the Company or the Trustee shall beaffected by notice to the contrary.

 

None of the Company, theTrustee, any Paying Agent or the Security Registrar will have anyresponsibility or liability for any aspect of the records relating to orpayments made on account of beneficial ownership interests of a Global Securityor for maintaining, supervising or reviewing any records relating to suchbeneficial ownership interests.

 

Section 3.10           Cancellation.

 

All Securitiessurrendered for payment, redemption, registration of transfer or exchange orfor credit against any Offer to Purchase, pursuant to Section 10.15 or 10.17,shall, if surrendered to any Person other than the Trustee, be delivered to theTrustee and shall be promptly canceled by it. The Company may at any timedeliver to the Trustee for cancellation any Securities previously authenticatedand delivered hereunder which the Company may have acquired in any mannerwhatsoever, and all Securities so delivered shall be promptly canceled by theTrustee. No Securities shall be authenticated in lieu of or in exchange for anySecurities canceled as provided in this Section 3.10, except as expresslypermitted by this Indenture. All canceled Securities held by the Trustee shall(subject to the record-retention requirements of the Exchange Act) be disposedof as directed by a Company Order.

 

Section 3.11           Computation of Interest.

 

Interest on theSecurities shall be computed on the basis of a 360-day year of twelve 30-daymonths; *provided*, *however*, that any Liquidated Damageson Original Securities shall be computed on the basis of a 365- or 366-dayyear, as the case may be, and the number of days actually elapsed.

 

30

----

 

ARTICLE IV

 

SATISFACTION ANDDISCHARGE

 

Section 4.01           Satisfactionand Discharge of Indenture.

 

This Indenture shallcease to be of further effect (except as to any surviving rights ofregistration of transfer or exchange of Securities herein expressly providedfor), and the Trustee, on demand of and at the expense of the Company, shallexecute proper instruments acknowledging satisfaction and discharge of thisIndenture (including, but not limited to, Article XII hereof), when

 

(a)           either

 

(i)            all Securities theretoforeauthenticated and delivered (other than (A) Securities which have beendestroyed, lost or stolen and which have been replaced or paid as provided inSection 3.07 and (B) Securities for whose payment money has theretofore beendeposited in trust or segregated and held in trust by the Company andthereafter repaid to the Company or discharged from such trust, as provided inSection 10.03) have been delivered to the Trustee for cancellation; or

 

(ii)           all such Securities not theretoforedelivered to the Trustee for cancellation have become due and payable,

 

and the Company, in the case of (i) or (ii) above, hasdeposited or caused to be deposited with the Trustee as trust funds in trustfor the purpose an amount sufficient to pay and discharge the entireindebtedness on such Securities not theretofore delivered to the Trustee forcancellation, for principal (and premium, if any) and interest (and LiquidatedDamages, if any), to the date of such deposit (in the case of Securities whichhave become due and payable) or to the Stated Maturity or Redemption Date, asthe case may be;

 

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

 

(c)           the Company has delivered to theTrustee an Officers’ Certificate and an Opinion of Counsel, each stating thatall conditions precedent herein provided that relate to the satisfaction anddischarge of this Indenture have been satisfied.

 

Notwithstanding thesatisfaction and discharge of this Indenture pursuant to this Article IV, theobligations of the Company to the Trustee under Section 6.07, the Obligationsof the Trustee to any Authenticating Agent under Section 6.14 and, if money hasbeen deposited with the Trustee pursuant to subclause (ii) of Clause (a) ofthis Section, the obligations of the Trustee under Section 4.02 and the lastparagraph of Section 10.03 shall survive.

 

Section 4.02           Application of Trust Money.

 

Subject to the provisionsof the last paragraph of Section 10.03, all money deposited with the Trusteepursuant to Section 4.01 shall be held in trust and applied by it, inaccordance with the provisions of the Securities and this Indenture, to thepayment, either directly or through any Paying Agent (including the Companyacting as its own Paying Agent) as the Trustee may determine, to the Personsentitled thereto, of the principal (and premium, if any) and interest (andLiquidated Damages, if any), for whose payment such money has been depositedwith the Trustee.

 

ARTICLE V

 

REMEDIES

 

Section 5.01           Events of Default.

 

“Event of Default,”wherever used herein, means any one of the following events (whatever thereason for such Event of Default and whether it shall be occasioned by theprovisions of Article XII or be voluntary or involuntary or be effected byoperation of law or pursuant to any judgment, decree or order of any court or anyorder, rule or regulation of any administrative or governmental body):

 

(a)           failure to pay the principal of (orpremium, if any, on) any Security at its Maturity; or

 

31

----

 

(b)           failure to pay any interest or LiquidatedDamages, if any, upon any Security for a period of 30 days or more after anysuch amounts become due and payable; or

 

(c)           failure to make an Offer to Purchaseor, on the applicable Purchase Date, to purchase Securities required to bepurchased by the Company pursuant to Section 10.15 or 10.17; or

 

(d)           failure to perform or comply with, orbreach of, Article VIII; or

 

(e)           failure to perform, or breach of, anycovenant or agreement of the Company in this Indenture (other than a covenantor agreement a default in whose performance or whose breach is elsewhere inthis Section 5.01 specifically addressed), and continuance of such failure orbreach for a period of 30 days after there has been given, by registered orcertified mail, to the Company by the Trustee or to the Company and the Trusteeby the Holders of at least 25% in aggregate principal amount of the OutstandingSecurities a written notice specifying such failure or breach and requiring itto be remedied and stating that such notice is a “Notice of Default”hereunder; or

 

(f)            a default or defaults under anybond(s), debenture(s), note(s) or other evidence(s) of Indebtedness by theCompany or any Restricted Subsidiary of the Company or under any mortgage(s),indenture(s) or instrument(s) under which there may be issued or by which theremay be secured or evidenced any Indebtedness of such type by the Company or anysuch Restricted Subsidiary with a principal amount then outstanding,individually or in the aggregate, in excess of $10 million, whether suchIndebtedness now exists or shall hereafter be created, which default ordefaults result in the acceleration of the payment of such Indebtedness orshall constitute a failure to pay any portion of the principal of suchIndebtedness at maturity after the expiration of any applicable grace periodwith respect thereto or shall have resulted in such Indebtedness becoming orbeing declared due and payable prior to the date on which it would otherwisehave become due and payable; or

 

(g)           a final judgment or final judgmentsfor the payment of money are entered against the Company or any RestrictedSubsidiary of the Company in an aggregate amount in excess of $10 million,which judgments remain undischarged, unstayed or unbonded for a period (duringwhich execution shall not be effectively stayed) of 60 days after the right toappeal has expired; or

 

(h)           the entry by a court havingjurisdiction in the premises of (A) a decree or order for relief in respect ofthe Company or any Significant Subsidiary of the Company in an involuntary caseor proceeding under any applicable Federal or State bankruptcy, insolvency,reorganization or other similar law (a “Bankruptcy Law”) or (B) a decreeor order adjudging the Company or any such Significant Subsidiary a bankrupt orinsolvent, or approving as properly filed a petition seeking reorganization,arrangement, adjustment or composition of or in respect of the Company or anysuch Significant Subsidiary under any applicable Federal or State law, orappointing a custodian, receiver, liquidator, assignee, trustee, sequestratoror other similar official of the Company or any such Significant Subsidiary orof any substantial part of the property of the Company or any such SignificantSubsidiary, or ordering the winding up or liquidation of the affairs of theCompany or any such Significant Subsidiary, and the continuance of any suchdecree or order for relief or any such other decree or order unstayed and ineffect for a period of 60 consecutive days; or

 

(i)            the commencement by the Company orany Significant Subsidiary of a voluntary case or proceeding under anyapplicable Bankruptcy, Law or of any other case or proceeding to be adjudicateda bankrupt or insolvent, or the consent by the Company or any such SignificantSubsidiary to the entry of a decree or order for relief in respect of theCompany or any Significant Subsidiary in an involuntary case or proceedingunder any applicable Bankruptcy Law, or to the commencement of any bankruptcyor insolvency case or proceeding against the Company or any SignificantSubsidiary, or the filing by the Company or any such Significant Subsidiary ofa petition or answer or consent seeking reorganization or relief under anyapplicable Federal or State law, or the consent by the Company or any suchSignificant Subsidiary to the filing of such petition or to the appointment ofor taking possession by a custodian, receiver, liquidator, assignee, trustee,sequestrator or similar official of the Company or any Significant Subsidiaryor of any substantial part of the property of the Company or any SignificantSubsidiary, or the making by the Company or any Significant Subsidiary of theCompany of an assignment for the benefit of creditors, or the admission by theCompany or any such Significant Subsidiary in writing of its inability to payits debts generally as they become due, or the taking of corporate action bythe Company or any such Significant Subsidiary in furtherance of any suchaction.

 

Section 5.02           Acceleration of Maturity;Rescission and Annulment.

 

If an Event of Default(other than an Event of Default specified in Section 5.01(h) or (i)) occurs andis continuing, then and in every such case the Trustee or the Holders of notless than 25% in aggregate principal amount of the Outstanding Securities maydeclare the principal of all the Securities 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 (and premium, if any), any accruedinterest and Liquidated Damages, if any, shall become immediately due andpayable. If an Event of Default specified in Section 5.01(h) or (i) occurs, theprincipal of (and premium, if any), any accrued interest and LiquidatedDamages, if any, on the Securities then Outstanding shall ipso facto becomeimmediately due and payable without any declaration or other Act on the part ofthe Trustee or any Holder.

 

32

----

 

At any time after such adeclaration of acceleration has been made and before a judgment or decree basedon acceleration for payment of the money due has been obtained by the Trusteeas hereinafter provided in this Article V, the Holders of a majority inaggregate principal amount of the Outstanding Securities, by written notice tothe Company and the Trustee, may rescind and annul such declaration ofacceleration and its consequences if:

 

(a)           the Company has paid or depositedwith the Trustee a sum sufficient to pay

 

(i)            all Defaulted Interest on allSecurities,

 

(ii)           the principal of (and premium, ifany, on) any Securities which have become due otherwise than by suchdeclaration of acceleration (including any Securities required to have beenpurchased on the Purchase Date pursuant to an Offer to Purchase made by theCompany) and, to the extent that payment of such interest is lawful, interestthereon at the rate provided by the Securities,

 

(iii)          to the extent that payment of suchinterest is lawful, interest upon Defaulted Interest, at the rate provided by theSecurities, and

 

(iv)          all sums paid or advanced by theTrustee hereunder and the reasonable compensation, expenses, disbursements andadvances of the Trustee, its agents and counsel;

 

and

 

(b)           all Defaults and Events of Default,other than the non-payment of the principal of Securities which have become duesolely by such declaration of acceleration, have been cured or waived asprovided in Section 5.13.

 

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

 

In thecase of any Event of Default occurring by reason of any willful action orinaction taken or not taken by or on behalf of the Company with the intentionof avoiding payment of the premium that the Company would have had to pay if itthen had elected to redeem the Securities pursuant to the optional redemptionprovisions of this Indenture, an equivalent premium will also become and beimmediately due and payable to the extent permitted by law upon theacceleration of the Securities. If an Event of Default occurs prior to January15, 2006 by reason of any willful action or inaction taken or not taken by oron behalf of the Company with the intention of avoiding the prohibition onredemption of the Securities prior to January 15, 2006, then, upon accelerationof the Securities, an additional premium shall also become and be immediatelydue and payable at an amount, for each of the years beginning January 15 ofeach of the years set forth below, as set forth below (expressed as apercentage of the principal amount of each Security):

 

 
| **Year** |   | **Percentage** |   |
|----------|--------|----------------|--------|
| 2002     |   | 11.375         | %      |
| 2003     |   | 9.750          | %      |
| 2004     |   | 8.125          | %      |
| 2005     |   | 6.500          | %      |

 

Section 5.03           Collection of Indebtedness andSuits for Enforcement by Trustee.

 

The Company covenantsthat if

 

(a)           default is made in the payment of anyinterest or Liquidated Damages, if any, on any Security when such interest orLiquidated Damages, if any, becomes due and payable and such default continuesfor a period of 30 days, or

 

(b)           default is made in the payment of theprincipal of (or premium, if any, on) any Security at the Maturity thereof or,with respect to any Security required to have been purchased pursuant to anOffer to Purchase made by the Company, at the Purchase Date thereof,

 

the Company shall, upon demand of the Trustee, andsubject to Article XII, pay to it, for the benefit of the Holders of suchSecurities, the whole amount then due and payable on such Securities forprincipal (and premium, if any) interest and Liquidated Damages, if any, and,to the extent that payment of such interest shall be legally enforceable,interest on any overdue principal (and premium, if any), on any DefaultedInterest at the rate provided by the Securities, and, in addition thereto, suchfurther amount as shall be sufficient to cover

 

33

----

 

the costs and expenses of collection, including thereasonable compensation, expenses, disbursements and advances of the Trustee,its agents and counsel.

 

If the Company fails topay such amounts forthwith upon such demand, the Trustee, in its own name andas Trustee of an express trust, may institute a judicial proceeding for thecollection of the sums so due and unpaid, may prosecute such proceeding tojudgment or final decree and may enforce the same against the Company or anyother obligor upon the Securities and collect the moneys adjudged or decreed tobe payable in the manner provided by law out of the property of the Company orany other obligor upon the Securities wherever situated.

 

If an Event of Defaultoccurs and is continuing, the Trustee may in its discretion proceed to protectand enforce its rights and the rights of the Holders by such appropriatejudicial proceedings as the Trustee shall deem most effectual to protect andenforce any such rights, whether for the specific enforcement of any covenantor agreement in this Indenture or in aid of the exercise of any power grantedherein, or to enforce any other proper remedy.

 

Section 5.04           Trustee May File Proofs of Claim.

 

In case of any judicialproceeding relative to the Company (or any other obligor upon the Securities),its property or its creditors, the Trustee shall be entitled and empowered, byintervention in such proceeding or otherwise, to take any and all actionsauthorized under the Trust Indenture Act in order to have claims of the Holdersand the Trustee allowed in any such proceeding. In particular, the Trusteeshall be authorized to collect and receive any moneys or other property payableor deliverable on any such claims and, subject to Article XII, to distributethe same; and any custodian, receiver, assignee, trustee, liquidator,sequestrator or other similar official in any such judicial proceeding ishereby authorized by each Holder to make such payments to the Trustee and, inthe event that the Trustee shall consent to the making of such paymentsdirectly to the Holders, to pay to the Trustee any amount due it for thereasonable compensation, expenses, disbursements and advances of the Trustee,its agents and Counsel, and any other amounts due the Trustee under Section6.07.

 

No provision of thisIndenture shall be deemed to authorize the Trustee to authorize or consent toor accept or adopt on behalf of any Holder any plan of reorganization,arrangement adjustment or composition affecting the Securities or the rights ofany Holder thereof or to authorize the Trustee to vote in respect of the claimof any Holder in any such proceeding; provided, however, that the Trustee may,on behalf of the Holders, vote for the election of a trustee in bankruptcy orsimilar official and may be a member of the creditors committee.

 

Section 5.05           Trustee May Enforce Claims WithoutPossession of Securities.

 

All rights of action andclaims under this Indenture or the Securities may be prosecuted and enforced bythe Trustee without the possession of any of the Securities or the productionthereof in any proceeding relating thereto, and any such proceeding institutedby 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 thereasonable compensation, expenses, disbursements and advances of the Trustee,its agents and counsel, be for the ratable benefit of the Holders of theSecurities in respect of which such judgment has been recovered.

 

Section 5.06           Application of Money Collected.

 

Subject to Article XII,any money collected by the Trustee pursuant to this Article shall be applied inthe following order, at the date or dates fixed by the Trustee and, in case ofthe distribution of such money on account of principal (or premium, if any) orinterest (or Liquidated Damages, if any), upon presentation of the Securitiesand the notation thereon of the payment if only partially paid and uponsurrender thereof if fully paid:

 

FIRST: To the payment ofall amounts due the Trustee under Section 6.07; and

 

SECOND: To the extentprovided in Article XII, to the holders of Senior Indebtedness in accordancewith Article XII;

 

THIRD: To the payment ofthe amounts then due and unpaid for principal of (and premium, if any) andinterest (and Liquidated Damages, if any), on the Securities in respect ofwhich or for the benefit of which such money has been collected, ratably,without preference or priority of any kind, according to the amounts due andpayable on such Securities for principal (and premium, if any) and interest(and Liquidated Damages, if any), respectively; and

 

FOURTH: To the Company orto such party as a court of competent jurisdiction shall direct.

 

34

----

 

Section 5.07           Limitation on Suits.

 

No Holder of any Securityshall have any right to institute any proceeding, judicial or otherwise, withrespect to this Indenture, or for the appointment of a receiver or trustee, orfor any other remedy hereunder, unless

 

(a)           such Holder has previously givenwritten notice to the Trustee of an Event of Default;

 

(b)           the Holders of not less than 25% inaggregate principal amount of the Outstanding Securities shall have madewritten request to the Trustee to institute proceedings in respect of suchEvent of Default in its own name as Trustee hereunder;

 

(c)           if requested by the Trustee, suchHolder or Holders have offered to the Trustee reasonable indemnity against thecosts, expenses and liabilities to be incurred in compliance with such request;and

 

(d)           no direction inconsistent with suchwritten request has been given to the Trustee during such 60-day period by theHolders of a majority in aggregate principal amount of the OutstandingSecurities;

 

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

 

Section 5.08                                 Unconditional Right of Holders to Receive Principal,Premium, Interest and Liquidated Damages.

 

Notwithstanding any otherprovision 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 premium, if any), (subject to Section 3.08) interest and LiquidatedDamages, if any, on such Security on the respective Stated Maturities expressedin such Security (or, in the case of redemption, on the Redemption Date or, inthe case of an Offer to Purchase made by the Company and required to beaccepted as to such Security, on the Purchase Date) and to institute suit forthe enforcement of any such payment, on or after such respective dates and suchrights shall not be impaired without the consent of such Holder.

 

Section 5.09           Restoration of Rights andRemedies.

 

If the Trustee or anyHolder has instituted any proceeding to enforce any right or remedy under thisIndenture and such proceeding has been discontinued or abandoned for anyreason, or has been determined adversely to the Trustee or to such Holder, thenand in every such case, subject to any determination in such proceeding, theCompany, the Trustee and the Holders shall be restored severally andrespectively to their former positions hereunder and thereafter all rights andremedies of the Trustee and the Holders shall continue as though no suchproceeding had been instituted.

 

Section 5.10           Rights and Remedies Cumulative.

 

Except as otherwiseprovided with respect to the replacement or payment of mutilated, destroyed,lost or stolen Securities in the last paragraph of Section 3.07, no right orremedy herein conferred upon or reserved to the Trustee or to the Holders isintended to be exclusive of any other right or remedy, and every right andremedy shall, to the extent permitted by law, be cumulative and in addition toevery other right and remedy given hereunder or now or hereafter existing atlaw or in equity or otherwise. The assertion or employment of any right orremedy hereunder, otherwise, shall not prevent the concurrent assertion oremployment of any other appropriate right or remedy.

 

Section 5.11           Delay or Omission Not Waiver.

 

No delay or omission ofthe Trustee or of any Holder of any Security to exercise any right or remedyaccruing upon any Event of Default shall impair any such right or remedy orconstitute a waiver of any such Event of Default or an acquiescence therein.Every right and remedy given by this Article V or by law to the Trustee or tothe Holders may be exercised from time to time, and as often as may be deemedexpedient, by the Trustee or by the Holders, as the case may be.

 

35

----

 

Section 5.12           Control by Holders.

 

The Holders of a majorityin aggregate principal amount of the Outstanding Securities shall have theright to direct the time, method and place of conducting any proceeding for anyremedy available to the Trustee or exercising any trust or power conferred onthe Trustee, *provided* that

 

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

 

(b)           the Trustee may take any other actiondeemed proper by the Trustee in furtherance of or consistent with, suchdirection, and

 

(c)           subject to the provisions of Section6.01, the Trustee shall have the right to decline to follow any such directionif the Trustee, being advised by counsel, determines that the action orproceeding so directed may not lawfully be taken or if the Trustee in goodfaith determines that the action or proceedings so directed might involve theTrustee in personal liability or if the Trustee in good faith shall sodetermine that the actions or forbearances specified in or pursuant to suchdirection shall be unduly prejudicial to the interest of holders of theSecurities not joining in the giving of said direction, it being understoodthat the Trustee shall have no duty to ascertain whether or not such actions orforbearances are unduly prejudicial to such holders.

 

Section 5.13           Waiver of Past Defaults.

 

The Holders of not lessthan a majority in aggregate principal amount of the Outstanding Securities mayon behalf of the Holders of all the Securities waive any past default hereunderand its consequences, except a default

 

(a)           in the payment of the principal of(or premium, if any) or interest (or Liquidated Damages, if any), on anySecurity (including any Security which is required to have been purchasedpursuant to an Offer to Purchase which has been made by the Company), or

 

(b)           in respect of a covenant or provisionhereof which under Article IX cannot be modified or amended without the consentof the Holder of each Outstanding Security affected.

 

Upon any such waiver,such default shall cease to exist, and any Event of Default arising therefromshall be deemed to have been cured, for every purpose of this Indenture; but nosuch waiver shall extend to any subsequent or other default or impair any rightconsequent thereon.

 

Section 5.14           Undertaking for Costs.

 

In any suit for theenforcement of any right or remedy under this Indenture, or in any suit againstthe Trustee for any action taken, suffered or omitted by it as Trustee, a courtmay require any party litigant in such suit to file an undertaking to pay thecosts of such suit, and may assess costs against any such party litigant, inthe manner and to the extent provided in the Trust Indenture Act. This Section5.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant toSection 5.08 or a suit by the Holders of more than 10% in aggregate principalamount of the Securities.

 

Section 5.15           Waiver of Stay or Extension Laws.

 

The Company covenants (tothe extent that it may lawfully do so) that it will not at any time insistupon, or plead, or in any manner whatsoever claim or take the benefit oradvantage of, any stay or extension law wherever enacted, now or at any timehereafter in force, which may affect the covenants or the performance of thisIndenture; and the Company (to the extent that it may lawfully do so) herebyexpressly waives all benefit or advantage of any such law and covenants that itwill not hinder, delay or impede the execution of any power herein granted tothe Trustee, but will suffer and permit the execution of every such power asthough no such law had been enacted.

 

ARTICLE VI

 

THE TRUSTEE

 

Section 6.01           Certain Duties andResponsibilities.

 

(a)           The duties and responsibilities ofthe Trustee shall be as provided in this Indenture and by the Trust IndentureAct. Notwithstanding the foregoing, no provision of this Indenture shallrequire the Trustee to expend or risk its own 

 

36

----

 

funds or otherwise incur any financial liability inthe performance of any of its duties hereunder, or in the exercise of any ofits rights or powers, if it shall have reasonable grounds for believing thatrepayment of such funds or adequate indemnity against such risk or liability isnot reasonably assured to it. If a Default or an Event of Default has occurredand is continuing, the Trustee shall exercise the rights and powers vested in itby this Indenture and use the same degree of care and skill in their exerciseas a prudent person would exercise or use under the circumstances in theconduct of such person’s own affairs. Whether or not therein expressly soprovided, every provision of this Indenture relating to the conduct oraffecting the liability of or affording protection to the Trustee shall besubject to the provisions of this Section 6.01.

 

(b)           The Trustee may not be relieved fromliability for its own negligent action, its own negligent failure to act or itsown willful misconduct, except that:

 

(i)            this Section 6.01(b)does not limitthe effect of Section 6.03;

 

(ii)           the Trustee shall not be liable forany error of judgment made in good faith by a Trust Officer unless it is provedthat the Trustee was negligent in ascertaining the pertinent facts; and

 

(iii)          the Trustee shall not be liable withrespect to any action it takes or omits to take in good faith in accordancewith a direction received by it pursuant to Section 5.12.

 

Section 6.02           Notice of Defaults.

 

The Trustee shall givethe Holders notice of any Default hereunder within 90 days after the occurrencethereof as and to the extent provided by the Trust Indenture Act. Except in thecase of a Default or an Event of Default in payment of principal of (andpremium, if any, on) or interest (or Liquidated Damages, if any), on anySecurities, the Trustee may withhold the notice to the Holders if and so longas a committee of its trust officers in good faith determines that withholdingsuch notice is in the interests of the Holders.

 

Section 6.03           Certain Rights of Trustee.

 

Subject to the provisionsof Section 6.01:

 

(a)            except during the continuance of aDefault or an Event of Default the Trustee shall undertake to perform such dutiesas are specifically set forth in this Indenture, and no implied covenants orobligations shall be read into this Indenture against the Trustee;

 

(b)           except during the continuance of aDefault or an Event of Default, in the absence of bad faith in its part, theTrustee may rely and shall be protected in acting or refraining from actingupon any resolution, certificate, Officers’ Certificate, statement, instrument,opinion, report, notice, request, direction, consent, order, bond, debenture,note, other evidence of Indebtedness or other paper or document believed by itto be genuine and to have been signed or presented by the proper party orparties, *provided* that theTrustee shall examine all Officers’ Certificates, opinions and other documentsproduced pursuant to the requirements of this Indenture to determine whether ornot they conform to the requirements of this Indenture;

 

(c)           any request or direction of theCompany mentioned herein shall be sufficiently evidenced by a Company Requestor Company Order and any resolution of the Board of Directors of the Companymay be sufficiently evidenced by a Board Resolution;

 

(d)           whenever in the administration ofthis Indenture the Trustee shall deem it desirable that a matter be proved orestablished prior to taking, suffering or omitting any action hereunder, theTrustee (unless other evidence be herein specifically prescribed) may, in theabsence of bad faith on its part, rely upon an Officers’ Certificate, *provided*that the Trustee shall examinesuch Officer’s Certificate to determine whether or not it conforms to therequirements of this Indenture;

 

(e)           before the Trustee acts or refrainsfrom acting, the Trustee may consult with counsel and the written advice ofsuch counsel or any Opinion of Counsel shall be full and complete authorizationand protection in respect of any action taken, suffered or omitted by ithereunder in good faith and in reliance thereon;

 

(f)            the Trustee shall be under noobligation to exercise any of the rights or powers vested in it by thisIndenture at the request or direction of any of the Holders pursuant to thisIndenture, unless such Holders shall have offered to the Trustee reasonablesecurity or indemnity against the costs, expenses and liabilities which mightbe incurred by it in compliance with such request or direction;

 

37

----

 

(g)           the Trustee shall not be bound tomake 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 ofindebtedness or other paper or document unless requested to do so by theHolders of not less than a 10% of the aggregate principal amount of theSecurities then Outstanding, but the Trustee, in its discretion, may make suchfurther inquiry or investigation into such facts or matters as it may see fit,and, if the Trustee shall determine to make such further inquiry orinvestigation, it shall be entitled to examine the books, records and premisesof the Company;

 

(h)           the Trustee may execute any of thetrusts or powers hereunder or perform any duties hereunder either directly orby or through agents or attorneys and the Trustee shall not be responsible forany misconduct or negligence on the part of any agent or attorney appointedwith due care by it hereunder;

 

(i)             the Trustee shall not be requiredto give any bond or surety in respect of the performance of its powers andduties hereunder;

 

(j)            the Trustee shall not be bound toascertain or inquire as to the performance or observance of any covenants,conditions or agreements on the part of the Company, except as otherwiseprovided herein, but the Trustee may require of the Company full informationand advice as to the performance of the covenants, conditions and agreementscontained herein and shall be entitled in connection herewith to examine thebooks, records and premises of the Company; and

 

(k)           except for (i)a default underSections 5.01(a), (b) or (c) hereof, or (ii)any other Default or Event ofDefault of which the Trustee has “actual knowledge” the Trustee shall not bedeemed to have notice of any Default or Event of Default unless specificallynotified in writing of such Default or Event of Default. As used herein, theterm “actual knowledge” means the actual fact or statement of knowing, withoutany duty to make any investigation with regard thereto.

 

Section 6.04           Not Responsible for Recitals orIssuance of Securities.

 

The recitals containedherein and in the Securities, except the Trustee’s certificates ofauthentication, shall be taken as the statements of the Company, and theTrustee assumes no responsibility for their correctness. The Trustee makes norepresentations as to the validity or sufficiency of this Indenture or of theSecurities. The Trustee shall not be accountable for the use or application bythe Company of Securities or the proceeds thereof.

 

Section 6.05           May Hold Securities.

 

The Trustee, anyAuthenticating Agent, any Paying Agent, any Security Registrar or any otheragent of the Company, in its individual or any other capacity, may become theowner or pledgee of Securities and, subject to Sections 6.08 and 6.13, mayotherwise deal with the Company with the same rights it would have if it werenot Trustee, Authenticating Agent, Paying Agent, Security Registrar or suchother agent.

 

Section 6.06           Money Held in Trust.

 

Money held by the Trusteein trust hereunder need not be segregated from other funds except to the extentrequired by law. The Trustee shall be under no liability for interest on anymoney received by it hereunder except as otherwise agreed with the Company.

 

Section 6.07           Compensation and Reimbursement.

 

The Company agrees

 

(a)           to pay to the Trustee from time totime, and the Trustee shall be entitled to, reasonable compensation for allservices rendered by it hereunder (which compensation shall not be limited byany provision of law in regard to the compensation of a trustee of an expresstrust);

 

(b)           except as otherwise expressly providedherein, to reimburse the Trustee upon its request for all reasonable expenses,disbursements and advances incurred or made by the Trustee in accordance withany provision of this Indenture, including costs of collection (including thereasonable compensation and the expenses and disbursements of its agents andcounsel), except any such expense, disbursement or advance as may beattributable to its negligence or willful misconduct; and

 

(c)           to indemnify the Trustee for, and tohold it harmless against, any loss, liability or expense incurred withoutnegligence or willful misconduct on its part, arising out of or in connectionwith the acceptance or administration of 

 

38

----

 

this trust, including the costs and expenses ofdefending itself against or investigating any claim or liability in connectionwith the exercise or performance of any of its powers or duties hereunder.

 

The obligations of theCompany under this Section 6.07 shall survive the satisfaction and discharge ofthis Indenture. As security for the performance of such obligations of theCompany, the Trustee shall have a claim prior to the Securities upon allproperty and funds held or collected by the Trustee as such, except funds heldin trust for the payment of principal of (and premium, if any) and interest(and Liquidated Damages, if any), on particular Securities. When the Trusteeincurs expenses or renders services in connection with an Event of Defaultspecified in Article V hereof, the expenses (including reasonable fees andexpenses of its counsel) and the compensation for the services in connectiontherewith are intended to constitute expense of administration under anyapplicable bankruptcy law.

 

Section 6.08           Disqualification; ConflictingInterests.

 

If the Trustee has oracquires a “conflicting interest” within the meaning of the Trust IndentureAct, the Trustee shall either eliminate such conflicting interest or resign, tothe extent and in the manner provided by, and subject to the provisions of, theTrust Indenture Act and this Indenture. Neither the Company nor any Affiliateor Related Person of the Company shall serve as the Trustee. The Trustee issubject to Section 310(b) of the Trust Indenture Act.

 

Section 6.09           Corporate Trustee Required;Eligibility.

 

There shall at all timesbe a Trustee hereunder which shall be a Person that is eligible pursuant to theTrust Indenture Act (including, without limitation, Sections 310(a)(1), (2) and(5) thereof) to act as such and has (or in the case of a Person included in abank holding company system, the related bank holding company shall have) acombined capital and surplus of at least $100.0million and its Corporate TrustOffice in New York City or Minneapolis. If such Person publishes reports ofcondition at least annually, pursuant to law or to the requirements of saidsupervising or examining authority, then for the purposes of this Section 6.09,the combined capital and surplus of such Person shall be deemed to be itscombined capital and surplus as set forth in its most recent report ofcondition so published. If at any time the Trustee ceases to be eligible inaccordance with the provisions of this Section 6.09, it shall resignimmediately in the manner and with the effect hereinafter specified in thisArticle VI.

 

Section 6.10           Resignation and Removal;Appointment of Successor.

 

(a)           No resignation or removal of theTrustee and no appointment of a successor Trustee pursuant to this Article VIshall become effective until the acceptance of appointment by the successorTrustee under Section 6.11.

 

(b)           The Trustee may resign at any time bygiving written notice thereof to the Company. If an instrument of acceptance bya successor Trustee shall not have been delivered to the Trustee within 30 daysafter the giving of such notice of resignation, the resigning Trustee maypetition any court of competent jurisdiction for the appointment of a successorTrustee.

 

(c)           The Trustee may be removed at anytime by Act of the Holders of a majority in principal amount of the OutstandingSecurities, delivered to the Trustee and to the Company.

 

(d)           If at any time:

 

(i)            the Trustee fails to comply withSection 6.08 after written request therefor by the Company or by any Holder whohas been a bona fide Holder of a Security for at least 6 months, or

 

(ii)           the Trustee ceases to be eligibleunder Section 6.09 and fails to resign after written request therefor by theCompany or by any Holder who has been a bona fide Holder of a Security for atleast six months, or

 

(iii)          the Trustee becomes incapable ofacting or is adjudged a bankrupt or insolvent or a receiver of the Trustee orof its property is appointed or any public officer takes charge or control ofthe Trustee or of its property or affairs for the purpose of rehabilitation,conservation or liquidation,

 

then, in any such case, (A)the Company by a BoardResolution may remove the Trustee, or (B)subject to Section 5.14, any Holderwho has been a bona fide Holder of a Security for at least 6 months may, onbehalf of himself and all others similarly situated, petition any court ofcompetent jurisdiction for the removal of the Trustee and the appointment of asuccessor Trustee.

 

(e)           If the Trustee resigns, is removed orbecomes incapable of acting, or if a vacancy occurs in the office of Trusteefor any cause, the Company, by a Board Resolution, shall promptly appoint asuccessor Trustee. If, within one year after such resignation, removal orincapability, or the occurrence of such vacancy, a successor Trustee is appointedby Act of the Holders

 

39

----

 

of a majority in principal amount of the OutstandingSecurities delivered to the Company and the retiring Trustee, the successorTrustee so appointed shall, forthwith upon its acceptance of such appointment,become the successor Trustee and supersede the successor Trustee appointed bythe Company. If no successor Trustee has been so appointed by the Company orthe Holders and accepted appointment in the manner hereinafter provided, anyHolder who has been a bona fide Holder of a Security for at least 6 months may,on behalf of himself and all others similarly situated, petition any court ofcompetent jurisdiction for the appointment of a successor Trustee.

 

(f)            The Company shall give notice ofeach resignation and each removal of the Trustee and each appointment of asuccessor Trustee to all Holders in the manner provided in Section 1.06. Eachnotice shall include the name of the successor Trustee and the address of itsCorporate Trust Office.

 

Section 6.11           Acceptance of Appointment bySuccessor.

 

Every successor Trusteeappointed hereunder shall execute, acknowledge and deliver to the Company andto the retiring Trustee an instrument accepting such appointment, and thereuponthe resignation or removal of the retiring trustee shall become effective andsuch successor Trustee, without any further act, deed or conveyance, shallbecome vested with all the rights, powers, trusts and duties of the retiringTrustee; but, on request of the Company or the successor Trustee, such retiringTrustee shall, upon payment of its charges, execute and deliver an instrumenttransferring to such successor Trustee all the rights, powers and trusts of theretiring Trustee and shall duly assign, transfer and deliver to such successorTrustee all property and money held by such retiring Trustee hereunder. Uponrequest of any such successor Trustee, the Company shall execute any and allinstruments for more fully and certainly vesting in and confirming to suchsuccessor Trustee all such rights, powers and trusts.

 

No successor Trusteeshall accept its appointment unless at the time of such acceptance suchsuccessor Trustee is qualified and eligible under this Article VI.

 

Section 6.12            Merger, Conversion, Consolidation orSuccession to Business.

 

Any corporation intowhich the Trustee may be merged or converted or with which it may beconsolidated, or any corporation resulting from any merger, conversion orconsolidation to which the Trustee shall be a party, or any corporationsucceeding to all or substantially all the corporate trust business of theTrustee, shall be the successor of the Trustee hereunder, provided suchcorporation shall be otherwise qualified and eligible under this Article VI,without the execution or filing of any paper or any further act on the part ofany of the parties hereto. In case any Securities have been authenticated, butnot delivered, by the Trustee then in office, any successor by merger,conversion or consolidation to such authenticating Trustee may adopt suchauthentication and deliver the Securities so authenticated with the same effectas if such successor Trustee had itself authenticated such Securities.

 

Section 6.13           Preferential Collection of ClaimsAgainst Company.

 

If and when the Trusteeshall be or become a creditor, directly or indirectly, secured or unsecured, ofthe Company (or any other obligor upon the Securities), the Trustee shall besubject to the provisions of the Trust Indenture Act regarding the collection ofclaims against the Company (or any such other obligor). The Trustee is subjectto Section 311(a) of the Trust Indenture Act, excluding any creditorrelationship listed in Section 311(b) of the Trust Indenture Act. A Trustee whohas resigned or been replaced shall be subject to Section 311(a) of the TrustIndenture Act to the extent indicated therein.

 

Section 6.14           Appointment of AuthenticatingAgent.

 

The Trustee may appointan Authenticating Agent or Agents which shall be authorized to act on behalf ofthe Trustee to authenticate Securities issued upon original issue and uponexchange, registration of transfer or partial redemption or pursuant to Section3.07, and Securities so authenticated shall be entitled to the benefits of thisIndenture and shall be valid and obligatory for all purposes as ifauthenticated by the Trustee hereunder. Wherever reference is made in thisIndenture to the authentication and delivery of Securities by the Trustee orthe Trustee’s certificate of authentication, such reference shall be deemed toinclude authentication and delivery on behalf of the Trustee by anAuthenticating Agent and a certificate of authentication executed on behalf ofthe Trustee by an Authenticating Agent. Each Authenticating Agent shall beacceptable to the Company and shall at all times be a corporation organized anddoing business under the laws of the United States of America, any Statethereof or the District of Columbia, authorized under such laws to act asAuthenticating Agent, having (or in the case of a corporation included in abank holding company system, the related bank holding company having) acombined capital and surplus of not less than $100.0million and subject tosupervision or examination by Federal or State authority. If such AuthenticatingAgent publishes reports of condition at least annually, pursuant to law or tothe requirements of said supervising or examining authority, then for thepurposes of this Section, the combined capital and surplus of suchAuthenticating Agent shall be deemed to be its combined capital and surplus asset forth in its most recent report of condition so published. If at any timean Authenticating Agent ceases to be eligible in accordance with the provisionsof this Section, such Authenticating Agent shall resign immediately in themanner and with the effect specified in this Section 6.14.

 

Any corporation intowhich an Authenticating Agent may be merged or converted or with which it maybe consolidated, or any corporation resulting from any merger, conversion orconsolidation to which such Authenticating Agent is a party,

 

40

----

 

or any corporation succeeding to the Corporate agencyor corporate trust business of an Authenticating Agent, shall continue to be anAuthenticating Agent, provided such corporation shall be otherwise eligibleunder this Section, without the execution or filing of any paper or any furtheract on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agentmay resign at any time by giving written notice thereof to the Trustee and tothe Company. The Trustee may at any time terminate the agency of anAuthenticating Agent by giving written notice thereof to such AuthenticatingAgent and to the Company. Upon receiving such a notice of resignation or uponsuch a termination, or in case at any time such Authenticating Agent ceases tobe eligible in accordance with the provisions of this Section 6.14, the Trusteemay appoint a successor Authenticating Agent which shall be acceptable to theCompany and shall mail written notice of such appointment by first-class mail,postage prepaid, to all Holders as their names and addresses appear in theSecurity Register. Any successor Authenticating Agent upon acceptance of itsappointment hereunder shall become vested with all the rights, powers andduties of its predecessor hereunder, with like effect as if originally named asan Authenticating Agent. No successor Authenticating Agent shall be appointedunless it is eligible under the provisions of this Section 6.14.

 

The Trustee agrees to payto each Authenticating Agent from time to time reasonable compensation for itsservices under this Section 6.14, and the Trustee shall be entitled to bereimbursed for such payments, subject to the provisions of Section 6.07.

 

If an appointment is madepursuant to this Section 6.14, the Securities may have endorsed thereon, inaddition to the Trustee’s certificate of authentication, an alternativecertificate of authentication in the following form:

 

This is one of theSecurities described in the within-mentioned Indenture.

 
|   | Wells Fargo Bank  Minnesota, N.A., |
|--------|------------------------------------|
|   | As Trustee                         |
|   |                               |
|   | By:                                |   |
|   | As Authenticating Agent            |
|   |                               |   |
|   | By:                                |   |
|   | Authorized Officer                 |

 

ARTICLE VII

 

HOLDERS’ LISTS ANDREPORTS 

BY TRUSTEE ANDCOMPANY

 

Section 7.01           Company to Furnish Trustee

Names and Addresses ofHolders.

 

The Company shall furnishor cause to be furnished to the Trustee

 

(a)           semi-annually, not more than 15 daysafter each Regular Record Date, a list, in such form as the Trustee may reasonablyrequire, of the names and addresses of the Holders as of such Regular RecordDate, and

 

(b)           at such other times as the Trusteemay request in writing, within 30 days after the receipt by the Company of anysuch request, a list of similar form and content as of a date not more than 15days prior to the time such list is furnished;

 

excluding from any such list names and addressesreceived by the Trustee in its capacity as Security Registrar.

 

Section 7.02           Preservation of Information;Communications to Holders.

 

(a)           The Trustee shall preserve, in ascurrent a form as is reasonably practicable, the names and addresses of Holderscontained in the most recent list furnished to the Trustee as provided inSection 7.01 and the names and addresses of Holders received by the Trustee inits capacity as Security Registrar. The Trustee may destroy any list furnishedto it as provided in Section 7.01 upon receipt of a new list so furnished.

 

41

----

 

(b)           The rights of Holders to communicatewith other Holders with respect to their rights under this Indenture or underthe Securities and the corresponding rights and duties of the Trustee, shall beas provided by the Trust Indenture Act.

 

(c)           Every Holder of Securities, by receivingand holding the same, agrees with the Company and the Trustee that neither theCompany nor the Trustee nor any agent of either of them shall be heldaccountable by reason of any disclosure of information as to the names andaddresses of Holders made pursuant to the Trust Indenture Act.

 

Section 7.03           Reports by Trustee.

 

(a)           The Trustee shall transmit to theHolders such reports required pursuant to the Trust Indenture Act as promptlyas practicable after each 

March 15 and beginning on March 15, 2002, or at suchother time as may be provided in the Trust Indenture Act, in the mannerprovided in the Trust Indenture Act.

 

(b)           A copy of each such report shall, atthe time of such transmission to Holders, be filed by the Trustee with eachstock exchange upon which the Securities are listed, with the Commission andwith the Company. The Company will notify the Trustee when the Securities arelisted on any stock exchange.

 

Section 7.04           Reports by Company.

 

(a)           The Company shall file with theCommission, and provide to the Trustee and the Holders, annual reports and suchother information, documents and other reports, and such summaries thereof, asmay be required pursuant to the Trust Indenture Act at the times and in themanner provided pursuant to the Trust Indenture Act.

 

(b)           Whether or not required by the rulesand regulations of the Exchange Act or the Commission, so long as any of theSecurities remain outstanding, the Company shall:

 

(i)            furnish to the Holders and theTrustee

 

(A)          allquarterly and annual financial information that would be required to becontained in a filing with the Commission on Form 10-Q and Form 10-K if theCompany were required to file such reports, including a “Management’sDiscussion and Analysis of Financial Condition and Results of Operations” and,with respect to the annual information only, a report on the annual financialstatements by the Company’s certified independent accountants; and

 

(B)           allcurrent reports that would be required to be filed with the Commission on Form8-K of the Exchange Act if the Company were required to file such reports; and

 

(ii)           file a copy of all such informationand reports with the Commission for public availability within the time periodsspecified in the Commission’s rules and regulations, unless the Commission doesnot accept such filings, and make such information and reports available tosecurities analysts and prospective investors upon request.

 

(c)           If the Company at any time is notsubject to the reporting requirements of Section 13 or Section 15(d) of theExchange Act (or any successor provisions) at any time while any Securityconstitutes a “restricted security” within the meaning of Rule 144, the Companyshall take all actions necessary to permit resales of the Original Securities(or any Successor Securities) to be made pursuant to Rule 144A, includingfurnishing to any holder of such a Security (or a beneficial interest therein),or to any prospective purchaser designated by such holder, upon the request ofsuch holder, such financial and other information as may be required to bedelivered under paragraph (d)(4) of Rule 144A to permit such resales and suchinformation that would be required if the Company were subject to theinformational requirements of Sections 13 or 15(d) of the Exchange Act.

 

42

----

 

ARTICLE VIII

 

CONSOLIDATION,MERGER,

CONVEYANCE,TRANSFER OR LEASE

 

Section 8.01            Company May Consolidate, Etc. Only onCertain Terms.

 

The Company shall notconsolidate with or merge into any other Person, shall not permit any otherPerson to consolidate with or merge into the Company, and shall not, directlyor indirectly, transfer, convey, sell, lease or otherwise dispose of all orsubstantially all of its properties and assets to any Person (in onetransaction or a series of related transactions); unless:

 

(a)           immediately after giving effect tosuch transaction and treating any Indebtedness Incurred by the Company or aRestricted Subsidiary as a result of such transaction as having been Incurredby the Company or such Restricted Subsidiary at the time of such transaction,no Default or Event of Default shall have occurred and be continuing;

 

(b)           (i) the Company is the survivingentity or (ii) the Person formed by such consolidation or into which theCompany is merged or the Person which acquires by transfer, conveyance, sale,lease or other disposition all or substantially all of the properties andassets of the Company as an entirety (a “Successor Company”) is acorporation that is organized and validly existing under the laws of the UnitedStates of America, any State thereof or the District of Columbia and, by anindenture supplemental hereto executed and delivered to the Trustee, in formsatisfactory to the Trustee, expressly assumes the due and punctual payment ofthe principal of (and premium, if any) and interest on all the Securities andthe performance of every covenant of this Indenture on the part of the Companyto be performed or observed;

 

(c)           immediately after giving effect tosuch transaction, the Consolidated Net Worth of the Company or, if applicable,the Successor Company shall be equal to or greater than the Consolidated NetWorth of the Company immediately prior to such transaction;

 

(d)           immediately after giving effect tosuch transaction, and treating any Indebtedness Incurred by the Company or anyRestricted Subsidiary as a result of such transaction as having been Incurredat the time of such transaction, the Company or the Successor Company would bepermitted to Incur at least $1.00 of additional Indebtedness pursuant to thefirst paragraph of Section 10.08; and

 

(e)           the Company has delivered to theTrustee an Officers’ Certificate and an Opinion of Counsel, each stating thatsuch consolidation, merger, conveyance, transfer, lease or disposition and, ifa supplemental indenture is required in connection with such transaction, suchsupplemental indenture, complies with this Article VIII and that all conditionsprecedent herein provided for relating to such transaction have been compliedwith, and, with respect to such Officers’ Certificate, setting forth the mannerof determination of the Company’s (or the Successor Company’s, as the case maybe) Consolidated Net Worth in accordance with Clause (c) of this Section 8.01and ability to Incur Indebtedness in accordance with Clause (d) of this Section8.01, except as provided below.

 

The Company may mergewith a Wholly Owned Restricted Subsidiary incorporated for the sole purpose ofreincorporating the Company in another jurisdiction and/or for the sole purposeof forming a holding company whose only substantial asset is the Capital Stockof the Company without complying with Clause (d) above.

 

Section 8.02           Successor Substituted.

 

Upon any consolidation ofthe Company with, or merger of the Company into, any other Person or anytransfer, conveyance, sale, lease or other disposition of all or substantiallyall of the properties and assets of the Company as an entirety in accordancewith Section 8.01, the successor Company shall succeed to, and be substitutedfor, and may exercise every right and power of, the Company under thisIndenture with the same effect as if such successor Person had been named asthe Company herein, and thereafter, except in the case of a lease, thepredecessor Person shall be relieved of all obligations and covenants underthis Indenture and the Securities.

 

43

----

 

ARTICLE IX

 

SUPPLEMENTALINDENTURES

 

Section 9.01           Supplemental Indentures WithoutConsent of Holders.

 

Without the consent ofany Holders, the Company, when authorized by a Board Resolution, and theTrustee, at any time and from time to time, may enter into one or moreindentures supplemental hereto, in form satisfactory to the Trustee, for any ofthe following purposes:

 

(a)           to evidence the succession of anotherPerson to the Company and the assumption by any such successor of the covenantsof the Company herein and in the Securities; or

 

(b)           to add to the covenants for thebenefit of the Holders, to add guarantors of the Company’s obligations underthe Securities and this Indenture or to surrender any right or power hereinconferred upon the Company; or

 

(c)           to secure the Securities pursuant tothe requirements of Section 10.13 or otherwise; or

 

(d)**          **tocomply with any requirements of the Commission in order to effect and maintainthe qualification of this Indenture under the Trust Indenture Act; or

 

(e)           to cure any ambiguity, to correct orsupplement any provision herein which may be inconsistent with any otherprovision herein or to make any other provisions with respect to matters orquestions arising under this Indenture which shall not be inconsistent with theprovisions of this Indenture, *provided*that any such action pursuant to this Clause (e) shall not adversely affect theinterests of the Holders.

 

Section 9.02           Supplemental Indentures withConsent of Holders.

 

With the consent of theHolders of not less than a majority in principal amount of the OutstandingSecurities, by Act of said Holders delivered to the Company and the Trustee,the Company, when authorized by a Board Resolution, and the Trustee may enterinto an indenture or indentures supplemental hereto for the purpose of addingany provisions to or changing in any manner or eliminating any of theprovisions of this Indenture or of modifying in any manner the rights of theHolders under this Indenture; *provided*,*however*, that no suchsupplemental indenture shall, without the consent of the Holder of eachOutstanding Security affected thereby,

 

(a)           change the Stated Maturity of theprincipal of, or any installment of interest or Liquidated Damages, if any, on,any Security,

 

(b)           reduce the principal amount of, orpremium, if any, or interest or Liquidated Damages, if any, on any Security,

 

(c)           change the place or currency ofpayment of principal of, or premium, if any, or interest or Liquidated Damages,if any, on any Security,

 

(d)           impair the right to institute suitfor the enforcement of any payment on or with respect to any Security,

 

(e)           reduce the percentage in aggregateprincipal amount of the Outstanding Securities, the consent of whose Holders isrequired to amend this Indenture or for any such supplemental indenture, or theconsent of whose Holders is required for any waiver provided for in thisIndenture,

 

(f)            modify any of the provisions of thisSection 9.02, Section 5.13 or Section 10.19, except to increase any percentagespecified in any such provision or to provide that additional provisions ofthis Indenture cannot be modified or waived without the consent of the Holderof each Outstanding Security affected thereby, or

 

(g)           modify the provisions in thisIndenture relating to the subordination of the Securities in a manner adverseto the Holders of the Securities,

 

44

----

 

(h)           following the mailing of an Offerwith respect to an Offer to Purchase Securities pursuant to Sections 10.15 or10.17, modify the provisions of this Indenture with respect to such Offer toPurchase in a manner adverse to such Holder or waive a redemption payment withrespect to any Security thereunder, or

 

(i)            modify any of the provisions ofSection 10.10.

 

For the avoidance ofdoubt, the modification of a definition in this Indenture, to the extent suchmodification affects the interpretation of any provision whose modification isrestricted as provided in clauses (a) through (i) above, shall be deemed to bea modification of such provision.

 

It shall not be necessaryfor any Act of Holders under this Section 9.02 to approve the particular formof any proposed supplemental indenture, but it shall be sufficient if such Actshall approve the substance thereof.

 

Section 9.03           Execution of SupplementalIndentures.

 

In executing, oraccepting the additional trusts created by, any supplemental indenturepermitted by this Article IX or the modifications thereby of the trusts createdby this Indenture, the Trustee shall be entitled to receive, and (subject toSection 6.01) shall be fully protected in relying upon, an Opinion of Counsel statingthat the execution of such supplemental indenture is authorized pursuant to, ispermitted by, and that all conditions precedent have been met under, thisIndenture. The Trustee may, but shall not be obligated to, enter into any suchsupplemental indenture which affects the Trustee’s own rights, duties orimmunities under this Indenture or otherwise.

 

Section 9.04           Effect of Supplemental Indentures.

 

Upon the execution of anysupplemental indenture under this Article IX, this Indenture shall be modifiedin accordance therewith, and such supplemental indenture shall form a part ofthis Indenture for all purposes and every Holder of Securities theretofore orthereafter authenticated and delivered hereunder shall be bound thereby. Nosuch supplemental indenture shall directly or indirectly modify the provisionsof Article XII in any manner which might terminate or impair the rights of theSenior Indebtedness pursuant to such subordination provisions without priorwritten consent of all of the holders of Senior Indebtedness.

 

Section 9.05           Conformity with Trust IndentureAct.

 

Every supplementalindenture executed pursuant to this Article IX shall conform to therequirements of the Trust Indenture Act.

 

Section 9.06           Reference in Securities toSupplemental Indentures.

 

Securities authenticatedand delivered after the execution of any supplemental indenture pursuant tothis Article IX may bear a notation in form approved by the Trustee as to anymatter provided for in such supplemental indenture. If the Company shall sodetermine, new Securities so modified as to conform, in the opinion of theTrustee and the Company, to any such supplemental indenture may be prepared andexecuted by the Company and authenticated and delivered by the Trustee inexchange for Outstanding Securities.

 

Section 9.07           Notice of Supplemental Indenture.

 

Promptly after theexecution by the Company and the Trustee of any supplemental indenture pursuantto Section 9.02, the Company shall transmit to the Holders a notice settingforth the substance of such supplemental indenture.

 

ARTICLE X

 

COVENANTS

 

Section 10.01          Payment of Principal, Premium andInterest.

 

The Company shall dulyand punctually pay the principal of (and premium, if any), and interest (andLiquidated Damages, if any) on the Securities in accordance with the terms ofthe Securities, this Indenture and the Registration Rights Agreement.

 

The Company shall payinterest (including post-petition interest in any proceeding under anyBankruptcy Law) on overdue principal at the rate equal to 1% per annum inexcess of the then applicable interest rate on the Securities, to the extentlawful. 

 

45

----

 

The Company shall pay interest (includingpost-petition interest in any proceeding under any Bankruptcy Law) on DefaultedInterest (without regard to any applicable grace period) at the same rate, tothe extent lawful.

 

Section 10.02         Maintenance of Office or Agency.

 

The Company shallmaintain in the Borough of Manhattan, New York City, an office or agency whereSecurities may be presented or surrendered for payment, where Securities may besurrendered for registration of transfer or exchange and where notices anddemands to or upon the Company in respect of the Securities and this Indenturemay be served. The Company shall give prompt written notice to the Trustee ofthe location, and any change in the location, of such office or agency. If atany time the Company fails to maintain any such required office or agency orfails to furnish the Trustee with the address thereof, such presentations,surrenders, notices and demands may be made or served at the Corporate TrustOffice of the Trustee, and the Company hereby appoints the Trustee as its agentto receive all such presentations, surrenders, notices and demands.

 

The Company may also fromtime to time designate one or more other offices or agencies (in or outside theBorough of Manhattan, New York City) where the Securities may be presented orsurrendered for any or all such purposes and may from time to time rescind suchdesignations; *provided*, *however*, that no such designation orrescission shall in any manner relieve the Company of its obligation tomaintain an office or agency in the Borough of Manhattan, New York City, forsuch purposes. The Company shall give prompt written notice to the Trustee ofany such designation or rescission and of any change in the location of anysuch other office or agency.

 

Section 10.03         Money for Security Payments to beHeld in Trust.

 

If the Company at anytime acts as its own Paying Agent, it shall, on or before each due date of theprincipal of (or premium, if any) or interest (or Liquidated Damages, if any)on any of the Securities segregate and hold in trust for the benefit of thePersons entitled thereto a sum sufficient to pay such amounts so becoming dueuntil such sums shall be paid to such Persons or otherwise disposed of asherein provided and shall promptly notify the Trustee of its action or failureso to act. The Company hereby appoints the Trustee as the Paying Agent as ofthe Issue Date.

 

Whenever the Company hasone or more Paying Agents, other than the Company, it shall, prior to each duedate of the principal of (and premium, if any), or interest (and LiquidatedDamages, if any) on any Securities, deposit to such Paying Agent a sumsufficient to pay such amounts so becoming due, such sum to be held in trustfor the benefit of the Persons entitled to such principal, premium, interest orLiquidated Damages, and (unless such Paying Agent is the Trustee) the Companyshall promptly notify the Trustee of its action or failure so to act.

 

The Company shall causeeach Paying Agent other than the Trustee to execute and deliver to the Trusteean instrument in which such Paying Agent agrees with the Trustee, subject tothe provisions of this Section 10.03, that such Paying Agent shall:

 

(a)           hold all sums held by it for thepayment of the principal of (or premium, if any) or interest (or LiquidatedDamages, if any) on Securities in trust for the benefit of the Persons entitledthereto until such sums are paid to such Persons or otherwise disposed of asherein provided;

 

(b)           give the Trustee prompt writtennotice of any default by the Company (or any other obligor upon the Securities)in the making of any payment of principal, if any, Liquidated Damages, if any,or interest; and

 

(c)           at any time during the continuance ofany such default, upon the written request of the Trustee, forthwith pay to theTrustee all sums so held in trust by such Paying Agent.

 

The Company may at anytime, for the purpose of obtaining the satisfaction and discharge of thisIndenture or for any other purpose, pay, or by Company Order direct any PayingAgent to pay, to the Trustee all sums held in trust by the Company or suchPaying Agent, such sums to be held by the Trustee upon the same trusts as thoseupon which such sums were held by the Company or such Paying Agent; and, uponsuch payment by any Paying Agent to the Trustee, such Paying Agent shall bereleased from all further liability with respect to such sums.

 

Any money deposited withthe Trustee or any Paying Agent, or then held by the Company, in trust for thepayment of the principal of (and premium, if any), Liquidated Damages, if any,or interest on any Security and remaining unclaimed for two years after suchprincipal (and premium, if any), Liquidated Damages, if any, or interest hasbecome due and payable shall be paid to the Company on Company Request, or (ifthen held by the Company) shall be discharged from such trust; and the Holderof such Security shall thereafter, as an unsecured general creditor, look onlyto the Company for payment thereof, and all liability of the Trustee or suchPaying Agent with respect to such trust money, and all liability of the Companyas trustee thereof, shall thereupon cease; *provided*,*however*, that the Trusteeor such Paying Agent, before being required to make any such repayment, may atthe expense of the Company cause to be publicly disseminated, notice that suchmoney remains unclaimed and that, after a date specified therein, which 

 

46

----

 

shall not be less than 30 days from the date of suchpublication, any unclaimed balance of such money then remaining shall be repaidto the Company.

 

Section 10.04         Existence.

 

Subject to Article VIII,the Company shall do or cause to be done all things necessary to preserve andkeep in full force and effect its existence, rights (charter and statutory) andfranchises; *provided*, *however*, that the Company shall not berequired to preserve any such right or franchise if the Board of Directors ofthe Company in good faith determines that the preservation thereof is no longerdesirable in the conduct of the business of the Company and that the lossthereof is not disadvantageous in any material respect to the Holders.

 

Section 10.05         Maintenance of Properties.

 

The Company shall causeall properties used or useful in the conduct of its business or the business ofany Restricted Subsidiary of the Company to be maintained and kept in goodcondition, repair and working order and supplied with all necessary equipmentand shall cause to be made all necessary repairs, renewals, replacements,betterments and improvements thereof, all as in the judgment of the Company maybe necessary so that the business carried on in connection therewith may beproperly and advantageously conducted at all times; *provided*, *however*, that nothing in this Sectionshall prevent the Company from discontinuing the operation or maintenance ofany of such properties if such discontinuance is, as determined by the Board ofDirectors of the Company in good faith, desirable in the conduct of itsbusiness or the business of any such Restricted Subsidiary and notdisadvantageous in any material respect to the Holders.

 

Section 10.06         Payment of Taxes and Other Claims.

 

The Company shall pay ordischarge or cause to be paid or discharged, before the same shall becomedelinquent, (l)all taxes, assessments and governmental charges levied orimposed upon the Company or any of its Restricted Subsidiaries or upon theincome, profits or property of the Company or any of its RestrictedSubsidiaries, and (2)all lawful claims for labor, materials and supplies which,if unpaid, might by law become a lien upon the property of the Company or anyof its Restricted Subsidiaries; *provided*,*however*, that the Companyshall not be required to pay or discharge or cause to be paid or discharged anysuch tax, assessment, charge or claim whose amount, applicability or validityis being contested in good faith by appropriate proceedings.

 

Section 10.07         Maintenance of Insurance.

 

The Company shall, andshall cause its Restricted Subsidiaries to, keep at all times all of theirproperties which are of an insurable nature insured against loss or damage withinsurers believed by the Company to be responsible to the extent that propertyof similar character is usually so insured by corporations similarly situatedand owning like properties in accordance with good business practice.

 

Section 10.08         Limitation on ConsolidatedIndebtedness.

 

The Company shall not,and shall not permit its Restricted Subsidiaries to, Incur any Indebtedness,except that the Company may Incur Indebtedness if (a)there exists no Default orEvent of Default immediately prior and subsequent thereto, and (b)after givingeffect thereto, the Company’s Operating Cash Flow Ratio on a pro forma basis(calculated on the assumption that such Indebtedness had been Incurred on thefirst day of the applicable Reference Period), would have been less than 7.5 to1.0. Notwithstanding the above, the Company and its Restricted Subsidiaries mayIncur the following Indebtedness if there exists no Default or Event of Defaultimmediately prior and subsequent to such Incurrence (other than the Indebtednessevidenced by the Senior Subordinated Exchange Debentures and the AdditionalSenior Subordinated Exchange Debentures), without regard to the abovelimitations:

 

(1)           Indebtedness evidenced by theSecurities on the Issue Date and any Exchange Securities issued in exchange forthose Securities;

 

(2)           Indebtedness Incurred by the Companyunder the Credit Facility in an aggregate principal amount not to exceed $325million at any time outstanding, reduced by (x) the amount of repayments andpermanent reductions of Indebtedness Incurred under this Clause (2) due to theapplication of Net Cash Proceeds and (y) the amount of any IndebtednessIncurred under this Clause (2) that is assumed, in each case, as set forth inSection 10.15;

 

(3)           Indebtedness of the Company or any ofits Restricted Subsidiaries owing to the Company or any of its Wholly OwnedRestricted Subsidiaries (“Intercompany Indebtedness”); *provided*that (A) in the case of anysuch Indebtedness of the Company, such obligations will be unsecured andsubordinated in all respects to the Holders’ rights pursuant to the Securitiesto the same extent as the Securities are subordinated to Senior Indebtednessand (B) if any event occurs that causes a Restricted Subsidiary to no longer bea Restricted Subsidiary, then this Clause (3) will no longer be applicable tosuch Indebtedness of that Restricted Subsidiary;

 

47

----

 

(4)           Indebtedness of the Company or anyRestricted Subsidiary to renew, extend, refinance or refund any Indebtedness ofthe Company or such Restricted Subsidiary outstanding or committed on the dateof renewal, extension, refinancing or refunding Incurred pursuant to clauses(1), (4), (6), (8) or (12) of this Section 10.08 or pursuant to the firstparagraph of this Section 10.08; *provided,however*, that such Indebtedness does not exceed the principal amount(or in the case of Preferred Stock that constitutes Indebtedness, the aggregateliquidation value) of outstanding or committed Indebtedness so renewed,extended, refinanced or refunded plus financing fees and other expensesassociated therewith; and *provided**further*, *however*, that (a) such renewing,extending, refinancing or refunding Indebtedness shall not have a finalmaturity and shall not have any other mandatory repayments or redemptions priorto or in amounts greater than those of the Indebtedness being renewed,extended, refinanced or refunded, (b) in the case of any refinancing orrefunding of Indebtedness that ranks *paripassu* in right of payment with the Securities, the refinancing orrefunding Indebtedness ranks in right of payment *pari passu* with or subordinated to, the Securities and, inthe case of any refinancing or refunding of Indebtedness subordinated to theSecurities (or Preferred Stock that constitutes Indebtedness), the refinancingor refunding Indebtedness ranks subordinate in right of payment to theSecurities to substantially the same extent as, or to a greater extent than,the Indebtedness refinanced or refunded and (c) no Restricted Subsidiary of theCompany shall be permitted to refinance any Indebtedness of the Company (forthe avoidance of doubt, it is understood that a refinancing or refunding ofIndebtedness under the Credit Facility incurred under the first paragraph ofthis Section 10.08, or Clause (4), (6), or (12) of this Section 10.08, shallinclude additional borrowings under the same Credit Facility to refinance orrefund such Indebtedness so long as the conditions set forth in this Clause (4)are met);

 

(5)           Indebtedness Incurred by the Companyor any of its Restricted Subsidiaries under Hedge Agreements to protect theCompany or any of its Restricted Subsidiaries from interest or foreign currencyrisk on Indebtedness permitted to be Incurred by this Indenture, *provided*, that the notional principalamount of any such Hedge Agreements does not exceed the principal amount ofIndebtedness to which such Hedge Agreements relate, and such Hedge Agreementsare not for speculative purposes;

 

(6)           Indebtedness of the Company and itsRestricted Subsidiaries existing on the Issue Date and listed on Schedule 10.08to this Indenture (other than Indebtedness Incurred under Clause (3) of thisSection 10.08), until such Indebtedness or any Indebtedness Incurred underClause (4) of this Section 10.08 to refinance such Indebtedness is repaid (“ExistingIndebtedness”);

 

(7)           any guarantee by any RestrictedSubsidiary of any Indebtedness Incurred under the Credit Facility in compliancewith this covenant;

 

(8)           Acquired Indebtedness, *provided* that on a pro forma basisafter giving effect to the Incurrence of such Indebtedness, the Company shallbe able to Incur $1.00 of additional Indebtedness pursuant to the provisionsdescribed under the first paragraph of this Section 10.08;

 

(9)           Indebtedness in respect ofperformance, surety or appeal bonds provided in the ordinary course ofbusiness;

 

(10)         Indebtedness arising from agreementsproviding for indemnification, adjustment of purchase price or similarobligations, or from guarantees or letters of credit, surety bonds orperformance bonds securing any obligations of the Company or any of itsRestricted Subsidiaries pursuant to such agreements, in any case Incurred inconnection with the disposition of any business, assets or Restricted Subsidiaryof the Company (other than guarantees of, or similar obligations under,Indebtedness Incurred by any Person acquiring all or any portion of suchbusiness, assets or Restricted Subsidiary of the Company for the purpose offinancing such acquisition), in an amount not to exceed the gross proceedsactually received by the Company or any Restricted Subsidiary in connectionwith such disposition;

 

(11)         Indebtedness of any RestrictedSubsidiary of the Company which does not exceed $50 million in the aggregatefor all such Restricted Subsidiaries at any time outstanding under this Clause(11) (excluding any Intercompany Indebtedness or Acquired Indebtedness that isotherwise permitted to be Incurred under this Indenture); *provided* that a Restricted Subsidiarymay not Incur any Indebtedness under this Clause (11) unless, on a pro formabasis, the Company’s Operating Cash Flow Ratio is less than 7.0 to 1.0 and theAdjusted Operating Cash Flow Ratio of such Restricted Subsidiary is less than5.0 to 1.0; and

 

(12)         Indebtedness of the Company or anyRestricted Subsidiary, other than Indebtedness permitted pursuant to clauses(1) through (11) of this Section 10.08, which does not exceed $25 million atany time outstanding or committed (including any Indebtedness Incurred underClause (4) to refinance such Indebtedness).

 

For the avoidance ofdoubt, all Indebtedness outstanding under the revolving portion of the CreditFacility on the Issue Date shall be deemed to have been Incurred under Clause(2) above, and all Indebtedness outstanding under the term loans of the CreditFacility on the Issue Date shall be deemed to have been Incurred under Clause(6) of this Section 10.8.

 

Section 10.09         Limitation on Preferred Stock ofRestricted Subsidiaries.

 

The Company shall not permitany Restricted Subsidiary of the Company to create or issue any Preferred Stockexcept:

 

48

----

 

(a)           Preferred Stock outstanding on theIssue Date (“Existing Preferred Stock”);

 

(b)           Preferred Stock issued to and held bythe Company or any Wholly Owned Restricted Subsidiary of the Company;

 

(c)           Preferred Stock issued by a Personprior to the time such Person became a direct or indirect Restricted Subsidiaryof the Company; and

 

(d)           Preferred Stock issued by aRestricted Subsidiary the proceeds of which are used to refinance outstandingPreferred Stock of a Restricted Subsidiary, *provided*that (i)the liquidation value of the refinancing Preferred Stock does notexceed the liquidation value so refinanced plus financing fees and otherexpenses associated with such refinancing and (ii)such refinancing PreferredStock has no mandatory redemptions prior to (and in no greater amounts than)the Preferred Stock being refinanced.

 

Section 10.10         Limitation on Certain Indebtedness.

 

The Company shall notIncur any Indebtedness that is subordinate in right of payment to any otherIndebtedness of the Company unless the Indebtedness so Incurred is either *pari passu* with or subordinate in right ofpayment to, the Securities.

 

Section 10.11         Limitation on Restricted Payments.

 

The Company shall not,and shall not permit any Restricted Subsidiary of the Company to make, directlyor indirectly, any Restricted Payment, unless after giving effect to theRestricted Payment:

 

(a)           no Default or Event of Default hasoccurred and is continuing;

 

(b)           the Company would be permitted toIncur an additional $1.00 of Indebtedness pursuant to the first paragraph ofSection 10.08; and

 

(c)           the total of all Restricted Paymentsmade on or after the Issue Date does not exceed the sum of

 

(i)            Cumulative Operating Cash Flow less1.60 times Cumulative Interest Expense,

 

(ii)           100% of the aggregate QualifiedCapital Stock Proceeds of the Company after the Issue Date, and

 

(iii)          100% of the cash proceeds receivedfrom an Unrestricted Subsidiary to the extent of Investments (other thanPermitted Investments) made in such Unrestricted Subsidiary since the IssueDate.

 

The foregoing provisionshall not be violated, so long as no Default or Event of Default has occurredand is continuing (other than in the case of Clause (2)), by reason of:

 

(1)           the payment of any dividend within 60days after declaration thereof if at the declaration date such payment wouldhave complied with the preceding provision,

 

(2)           any refinancing of any Indebtednessotherwise permitted under Clause (2) or (4) of Section 10.08 hereof,

 

(3)           (a) the issuance of the SeniorSubordinated Exchange Debentures in exchange for the Exchangeable PreferredStock in accordance with the terms of the Exchangeable Preferred Stock ineffect on the Issue Date, *provided*,that after giving effect thereto, the Company’s Operating Cash Flow Ratio on apro forma basis (calculated on the assumption that such Indebtedness had beenIncurred on the first day of the applicable Reference Period), would have beenless than 6.5 to 1.0, or (b) the issuance of Additional Senior SubordinatedExchange Debentures in exchange for the Junior Exchangeable Preferred Stock inaccordance with the terms of the Junior Exchangeable Preferred Stock in effecton the Issue Date, *provided*that after giving effect thereto, the Company’s Operating Cash Flow Ratio on apro forma basis (calculated on the assumption that such Indebtedness had beenIncurred on the first day of the applicable Reference Period), would have beenless than 6.5 to 1.0.

 

49

----

 

(4)           the purchase, redemption or otheracquisition or retirement for value of shares of Capital Stock of anyRestricted Subsidiary held by Persons other than the Company or any of itsRestricted Subsidiaries,

 

(5)           the redemption, defeasance,repurchase or other acquisition or retirement of any Capital Stock of theCompany or any Subordinated Indebtedness prior to its scheduled maturity or thepayment of dividends on any Capital Stock of the Company either in exchange foror out of the net cash proceeds of the substantially concurrent sale (otherthan to a Subsidiary of the Company) of Qualified Capital Stock of the Company,

 

(6)           the repurchase, redemption or otherretirement for value of any Qualified Capital Stock of the Company held by anyformer member of the Company’s management pursuant to any management equitysubscription agreement or stock option agreement in effect as of the IssueDate, *provided* that theaggregate price paid for all such repurchased, redeemed, acquired or retiredQualified Capital Stock shall not exceed $1.0 million in any 12-month periodand shall not exceed $5.0 million in the aggregate since the Issue Date,

 

(7)           the payment of dividends on eitherthe Senior Exchangeable Preferred Stock after May 15, 2003 or on the JuniorExchangeable Preferred Stock after February 15, 2005, which dividends do notexceed $30.0 million in the aggregate since the Issue Date, *provided* that in no event may any suchpayment be made unless the Operating Cash Flow Ratio of the Company, calculatedon the basis that the Preferred Stock on which such dividends are proposed tobe paid constitutes Indebtedness, is less than 7.0 to 1.0, or

 

(8)           Restricted Payments, in addition toRestricted Payments permitted pursuant to Clauses (1) through (7) of thisparagraph, not in excess of $25 million in the aggregate after the Issue Date.

 

The payments described in Clauses (1), (3), (4), (5) (*provided* the proceeds of the sale ofthe Qualified Capital Stock referred to in such Clause constitute QualifiedCapital Stock Proceeds), (6), (7), and (8) of this paragraph shall constituteRestricted Payments for the calculation under the first paragraph of thisSection 10.11.

 

Section 10.12                          Limitations Concerning Distributionsand Transfers By Restricted Subsidiaries.

 

The Company shall not,and shall not permit any Restricted Subsidiary of the Company to, create orotherwise cause or suffer to exist or become effective any consensualrestriction or prohibition on the ability of any Restricted Subsidiary of theCompany to:

 

(a)           pay dividends on, or make otherdistributions in respect of, its Capital Stock, or any other ownership interestor participation in, or measured by, its profits, to the Company or anyRestricted Subsidiary or pay any Indebtedness or other obligation owed to theCompany or any Restricted Subsidiary,

 

(b)           make any loans or advances to theCompany or any Restricted Subsidiary or

 

(c)           transfer any of its property orassets to the Company or any Restricted Subsidiary.

 

Notwithstanding the foregoing, the Company may, andmay permit any Restricted Subsidiary to, suffer to exist any such restrictionor prohibition:

 

(1)           pursuant to this Indenture, theCredit Facility, any other agreement in effect on the Issue Date and listed onSchedule 10.12 to this Indenture or, if executed and delivered, the ExchangeIndentures, *provided* thatany such restriction or prohibition in the Exchange Indentures is no morerestrictive than that contained in this Indenture,

 

(2)           pursuant to an agreement relating toany Indebtedness of such Restricted Subsidiary which was outstanding orcommitted prior to the date on which such Restricted Subsidiary became aRestricted Subsidiary of the Company other than restrictions or prohibitionsadopted in anticipation of becoming a Restricted Subsidiary; *provided*, that such restriction orprohibition shall not apply to any property or assets of the Company or anyRestricted Subsidiary other than the property or assets of such RestrictedSubsidiary and its Subsidiaries,

 

(3)           pursuant to an agreement effecting arenewal, extension, refinancing or refunding of any agreement described inClauses (1) and (2) above, *provided*,*however*, that theprovisions contained in such renewal, extension, refinancing or refundingagreement relating to such restriction or prohibition are no more restrictivein any material respect than the provisions contained in the agreement which isthe subject thereof,

 

(4)           existing under or by reason ofapplicable law,

 

50

----

 

(5)           customary provisions restrictingsubletting or assignment of any lease governing any leasehold interest of anyRestricted Subsidiary,

 

(6)           purchase money obligations forproperty acquired in the ordinary course of business that impose restrictionsof the type referred to in Clause (c) of this Section 10.12,

 

(7)           restrictions of the type referred toin Clause (c) of this Section 10.12 contained in security agreements securingIndebtedness of a Restricted Subsidiary to the extent that such Liens wereotherwise Incurred in accordance with Section 10.13, and restrict the transferof property subject to such agreements, or

 

(8)           customary provisions in joint ventureagreements and other similar agreements entered into in the ordinary course ofbusiness.

 

Section 10.13         Limitations on Liens.

 

The Company shall not,and shall not permit any Restricted Subsidiary of the Company to, Incur orsuffer to exist any Lien on or with respect to any property or assets now ownedor hereafter acquired to secure any Indebtedness that ranks in right of payment*pari passu* with or subordinate tothe Securities without making, or causing such Restricted Subsidiary to make,effective provision for securing the Securities

 

(a)           equally and ratably with suchIndebtedness as to such property for so long as such Indebtedness will be sosecured or

 

(b)           in the event such Indebtedness isIndebtedness of the Company or a Restricted Subsidiary which is subordinate inright of payment to the Securities prior to such Indebtedness as to suchproperty for so long as such Indebtedness will be so secured.

 

The foregoingrestrictions shall not apply to:

 

(1)           Liens existing on the Issue Date inrespect of any Indebtedness that exists on the Issue Date (“Existing Liens”);

 

(2)           Liens in favor of the Company orLiens in favor of a Wholly Owned Restricted Subsidiary of the Company on theassets or Capital Stock of another Wholly Owned Restricted Subsidiary of theCompany;

 

(3)           Liens to secure Indebtednessoutstanding or committed for the purpose of financing all or any part of thepurchase price or the cost of construction or improvement of the equipment orother property subject to such Liens; *provided*,however, that (a)the principal amount of any Indebtedness secured bysuch a Lien does not exceed 100% of such purchase price or cost, (b)such Liendoes not extend to or cover any property other than such item of property orany improvements on such item and (c)the Incurrence of such Indebtedness isotherwise permitted by this Indenture;

 

(4)           (a)Liens on property existingimmediately prior to the time of acquisition thereof (and not Incurred inanticipation of the financing of such acquisition) and (b)Liens in respect ofAcquired Indebtedness existing at the time of the acquisition of the relatedassets by the Company or any of its Restricted Subsidiaries (*provided* that such Liens do not extendto any assets of the Company or any of its Restricted Subsidiaries other thanthe assets being acquired (and as long as such Liens were not Incurred inanticipation of the financing of such asset acquisition));

 

(5)           Liens to secure Indebtedness toextend, renew, refinance or refund (or successive extensions, renewals,refinancings or refundings), in whole or in part, Indebtedness secured by anyLien referred to in the foregoing Clauses(1), (3) and (4) so long as such Liendoes not extend to any other property and the principal amount of Indebtednessso secured is not increased except as otherwise permitted under Clause(2) or(4) of Section 10.08;

 

(6)           Liens on any Permitted Investment inCooperative Bank Equity in favor of any Cooperative Banks; or

 

(7)           any other Liens in respect of anyIndebtedness, which Indebtedness does not exceed $500,000 in the aggregate.

 

Section 10.14         Limitation on Transactions withAffiliates and Related Persons.

 

The Company shall not,and shall not permit any Restricted Subsidiary to make any payment to, or sell,lease, transfer or otherwise dispose of any of its properties or assets to, orpurchase any property or assets from, or enter into or make or amend 

 

51

----

 

any transaction, contract, agreement, understanding,loan, advance or guarantee with, or for the benefit of, any Affiliate orRelated Person of the Company, other than a Restricted Subsidiary (each of theforegoing transactions, an “Affiliate Transaction”), unless:

 

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

 

(2)           the Company delivers to the Trustee:

 

(a)           with respect to any Affiliate Transactionor series of related Affiliate Transactions involving aggregate considerationin excess of $5.0 million, a determination by the Board of Directors of theCompany set forth in a Board Resolution and an Officers’ Certificate certifyingthat each such Affiliate Transaction complies with Clause (1) above and thateach such Affiliate Transaction has been approved by a majority of thedisinterested members of the Board of Directors of the Company; and

 

(b)           with respect to any AffiliateTransaction or series of related Affiliate Transactions involving aggregateconsideration in excess of $10.0 million, an opinion as to the fairness to theCompany of the financial terms of such Affiliate Transaction or series orrelated Affiliate Transactions from a financial point of view issued by anaccounting, appraisal or investment banking firm of national standing.

 

This Section 10.14 shall not limit, or be applicableto any agreement in effect on the Issue Date, listed on Schedule 10.14 to thisIndenture, and any amendments, extensions or renewals of any such agreement, solong as any such amendment, extension or renewal, taken as a whole, is not moredisadvantageous to the Company or to any Restricted Subsidiary as the originalagreement in effect on the Issue Date.

 

Section 10.15         Limitation on Asset Sales and Salesof Subsidiary Stock.

 

Following the Issue Date,the Company shall not, and shall not permit any Restricted Subsidiary of theCompany to engage in an Asset Sale unless (a) such Asset Sale is for FairMarket Value, (b) at least 75% of the value of the consideration for such AssetSale consists of (1) cash, (2) the assumption by the transferee (and release ofthe Company or the relevant Restricted Subsidiary, as the case may be) ofSenior Indebtedness or Indebtedness of the Company that ranks *pari passu* in right of payment with theSecurities or Indebtedness of such Restricted Subsidiary, or (3) notes,obligations or other marketable securities (collectively “MarketableSecurities”) that are immediately converted into cash and (c) the Net CashProceeds therefrom are applied on or prior to the date that is 360 days afterthe date of such Asset Sale (1) to the repayment of Indebtedness under theCredit Facility (which payment permanently reduces the commitment thereunder);(2) to the repurchase of the Securities and such other Indebtedness that ranksequally with the Securities containing provisions with respect to therepurchase of such Indebtedness with the net proceeds of asset sales, pursuantto an Offer to Purchase (an “Asset Sale Offer”) described below; (3) tothe making of capital expenditures or other acquisitions at Fair Market Valueof long-term assets (other than Capital Stock) that are used or useful in aWireless Communications Business that is owned wholly by the Company or any ofits Restricted Subsidiaries; or (4) to the acquisition of all or substantiallyall of the assets of, or Capital Stock representing a majority of the VotingPower of, an entity engaged primarily in a Wireless Communications Business.

 

Notwithstanding theforegoing paragraph:

 

(1)           any Restricted Subsidiary of theCompany may convey, sell, lease, transfer or otherwise dispose of any or all ofits assets (upon voluntary liquidation or otherwise) to the Company or a WhollyOwned Restricted Subsidiary of the Company;

 

(2)           the Company and its RestrictedSubsidiaries may, in the ordinary course of business, (A) convey, sell, lease,transfer, assign or otherwise dispose of assets in the ordinary course ofbusiness provided that the consideration received reflects the Fair MarketValue of such assets and (B) exchange assets for either assets or equityinterests in Wireless Communications Businesses, provided that (i) the assetsor equity interests received have a Fair Market Value substantially equal tothe assets exchanged, (ii) the assets received by the Company are controlled bythe Company with respect to voting rights and day-to-day operations, or theequity interests received by the Company represent a controlling interest inthe total Voting Power and day-to-day operations of a Person that is the issuerof such equity interests, (iii) there exists no Event of Default immediatelyprior and subsequent thereto, and (iv) immediately after giving effect to suchtransaction, the Company would be permitted to incur at least $1.00 ofadditional Indebtedness pursuant to the first paragraph of Section 10.08;

 

(3)           the Company and its RestrictedSubsidiaries may make an exchange of assets where the Company and/or itsRestricted Subsidiaries receive consideration for such assets at least 75% ofwhich consists of (A) cash, (B) long-term assets (other than Capital Stock) atFair Market Value that are used or useful in a Wireless Communications Businessor (C) any combination thereof (it being understood that any net cash proceedsshall be treated as Net Cash Proceeds under Clause (c) of the the firstparagraph of this Section 10.15);

 

52

----

 

(4)           the Company and its RestrictedSubsidiaries may convey, sell, lease, transfer, assign or otherwise dispose ofassets pursuant to and in accordance with Article VIII;

 

(5)           the Company and its RestrictedSubsidiaries may (A) sell damaged, worn out or other obsolete property in theordinary course of business or other property no longer necessary for theproper conduct of the business of the Company or any of its RestrictedSubsidiaries or (B) abandon such property if it cannot, through reasonableefforts, be sold; and

 

(6)           in addition to the Asset Salespermitted by the foregoing Clauses (1) through (5) above, the Company and itsRestricted Subsidiaries may consummate Asset Sales (other than in the case ofCapital Stock of any Restricted Subsidiary of the Company) with respect toproperty, business or assets the Fair Market Value of which does not exceed $10million in the aggregate after the Issue Date.

 

The Company may defer an Asset Sale Offer until theaccumulated Net Cash Proceeds not applied to the uses set forth in Subsections(c)(1), (c)(3) or (c)(4) in the first paragraph of this Section 10.15, exceed$10 million. Pending the final application of any such Net Cash Proceeds, theCompany may temporarily reduce revolving credit borrowings or otherwise investsuch Net Cash Proceeds in any manner that is not prohibited by this Indenture.

 

An Asset Sale Offer shallremain open for a period of 20 Business Days following its commencement and nolonger, except to the extent that a longer period is required by applicable law(the “Asset Sale Offer Period”). To the extent that any SeniorIndebtedness of the Company or any Indebtedness of any of its Subsidiariesrequires the Company or that Subsidiary to make an offer similar to an AssetSale Offer, the Company and each such Subsidiary may make simultaneous offers,with the Asset Sale Offer being limited to proceeds not used to repurchase theIndebtedness of the Company or such Subsidiaries. In addition, the Companyshall not make an asset sale offer for the Existing Senior Subordinated Notes,the Senior Subordinated Exchange Debentures, and the Additional SeniorSubordinated Exchange Debentures, unless it also makes an Asset Sale Offer forthe Securities. No later than five Business Days after the termination of theAsset Sale Offer Period (the “Asset Sale Purchase Date”), the Companyshall purchase the principal amount of Securities required to be purchasedpursuant to this Section 10.15 (the “Asset Sale Offer Amount”) at apurchase price equal to 100% of the principal amount of the Securities plusaccrued and unpaid interest and Liquidated Damages, if any, to but excludingthe date of the purchase or, if less than the Asset Sale Offer Amount has beentendered, all Securities tendered in response to the Asset Sale Offer.

 

If the Asset SalePurchase Date is on or after a Regular Record Date and on or before the relatedInterest Payment Date, any accrued and unpaid interest will be paid to thePerson in whose name a Security is registered at the close of business on suchRegular Record Date, and no additional interest will be payable to Holders whotender Securities pursuant to the Asset Sale Offer.

 

On or before the AssetSale Purchase Date, the Company shall, to the extent lawful, accept forpayment, on a pro rata basis to the extent necessary, the Asset Sale OfferAmount of Securities or portions thereof tendered pursuant to the Asset SaleOffer, or if less than the Asset Sale Offer Amount has been tendered, allSecurities tendered, and shall deliver to the Trustee an Officers’ Certificatestating that such Securities or portions thereof were accepted for payment bythe Company in accordance with the terms of this covenant. The Company, theDepositary or the Paying Agent, as the case may be, will promptly (but in anycase not later than five days after the Asset Sale Purchase Date) mail ordeliver to each tendering Holder an amount equal to the purchase price of theSecurities tendered by such Holder and accepted by the Company for purchase,and the Company shall promptly issue new Securities, and the Trustee, uponwritten request from the Company, shall authenticate and mail or deliver suchnew Securities to such Holder, in a principal amount equal to any unpurchasedportion of the Securities surrendered. Any Securities not so accepted shall bepromptly mailed or delivered by the Company to the Holder thereof. The Companyshall publicly announce the results of the Asset Sale Offer on the Asset SalePurchase Date. Upon completion of each Asset Sale Offer, the amount ofaccumulated Net Cash Proceeds not applied to the uses set forth in subsections(c)(1), (c)(3) or (c)(4) in the first paragraph of this Section 10.15 shall bereset to zero.

 

The Company shall comply,to the extent applicable, with the requirements of Section 14(e) of theExchange Act and any other securities laws or regulations applicable to anyAsset Sale Offer.

 

Section 10.16         Limitation on Activities of theCompany and its Restricted Subsidiaries.

 

The Company shall not,and shall not permit any Restricted Subsidiary to, engage in any business otherthan the Telecommunications Business, except to the extent such business is notmaterial to the Company and its Restricted Subsidiaries, taken as a whole.

 

Section 10.17         Change of Control.

 

(a)           Upon the occurrence of a Change inControl, each Holder of a Security shall have the right to request to have suchSecurity repurchased by the Company on the terms and conditions set forth inthis Section 10.17 and this Indenture. The Company shall, within 30 daysfollowing the date of the consummation of a transaction resulting in a Changeof Control, mail to each Holder an Offer to Purchase all Outstanding Securitiesat a purchase price equal to 101% of the aggregate principal amount thereofplus accrued and unpaid interest and Liquidated Damages, if any, to butexcluding the Purchase Date (a “Change of Control Offer”).

 

53

----

 

The Company or a thirdparty on its behalf may, but shall not be required to, satisfy the Company’sobligations under this Section 10.17 by mailing such an Offer to Purchase priorto, and contingent upon, the anticipated consummation of a transactionresulting in a Change of Control;*provided* that the Company and any such third party shall complywith all applicable laws and regulations, including Rule 14e-1 under the ExchangeAct, and the Offer to Purchase shall not close unless the transaction resultingin a Change of Control also occurs. A Change of Control Offer shall remain openfor a period of 20 Business Days following its commencement and no longer,except to the extent that a longer period is required by applicable law (the “Changeof Control Offer Period”). No later than five Business Days after thetermination of the Change of Control Offer Period (the “Change of ControlPurchase Date”), the Company shall purchase all Securities tendered inresponse to the Change of Control Offer. Payment for any Securities sopurchased shall be made in the same manner as interest payments are made.

 

If the Change of ControlPurchase Date is on or after a Regular Record Date and on or before the relatedInterest Payment Date, any accrued and unpaid interest, and Liquidated Damages,if any, shall be paid to the Person in whose name a Security is registered atthe close of business on such Regular Record Date, and no additional interestor Liquidated Damages will be payable to Holders who tender Securities pursuantto the Change of Control Offer.

 

On or before the Changeof Control Purchase Date, the Company shall, to the extent lawful, accept forpayment all Securities or portions thereof tendered, and shall deliver to theTrustee an Officers’ Certificate stating that such Securities or portionsthereof were accepted for payment by the Company in accordance with the termsof this Section 10.17. The Company, the Depositary or the Paying Agent, as thecase may be, shall promptly (but in any case not later than five days after theChange of Control Purchase Date) mail or deliver to each tendering Holder anamount equal to the purchase price of the Securities tendered by such Holder andaccepted by the Company for purchase, and the Company shall promptly issue newSecurities, and the Trustee, upon written request from the Company shallauthenticate and mail or deliver such new Securities to such Holder, in aprincipal amount equal to any unpurchased portion of the Securitiessurrendered. Any Securities not so accepted will be promptly mailed ordelivered by the Company to the Holder thereof. The Company shall publiclyannounce the results of the Change of Control Offer on the Change of ControlPurchase Date

 

(b)           The Company shall comply with anytender offer rules under the Exchange Act which may then be applicable,including Rule14e-l thereunder, in connection with any Offer to Purchase(whether pursuant to Section 10.15 or this Section 10.17).

 

Section 10.18         Statement by Officers as to Default;Compliance Certificates.

 

(a)           The Company shall deliver to theTrustee, within 90 days after the end of each fiscal year, an Officers’Certificate stating that a review of the activities of the Company and itsSubsidiaries during the preceding fiscal year has been made under thesupervision of the signing officers with a view to determining whether theCompany has kept, observed, performed and fulfilled its obligations under thisIndenture, and further stating, as to each such officer signing suchcertificate, that to the best of his or her knowledge the Company has kept,observed, performed and fulfilled each and every covenant contained in thisIndenture and is not in default in the performance or observance of any of theterms, provisions and conditions of this Indenture (or, if a Default or Eventof Default shall have occurred, describing all such Defaults or Events ofDefault of which he or she may have knowledge and what action the Company is takingor proposes to take with respect thereto) and that to the best of his or herknowledge no event has occurred and remains in existence by reason of whichpayments on account of the principal of or interest, premium (if any) orLiquidated Damages (if any) on, the Securities is prohibited or if such eventhas occurred, a description of the event and what action the Company is takingor proposes to take with respect thereto.

 

(b)           So long such practice is not contraryto the then current recommendations of the American Institute of CertifiedPublic Accountants, the year-end financial statements delivered pursuant toSection 10.4(a) above shall be accompanied by a written statement of theCompany’s independent public accountants (who shall be a firm of establishednational reputation) that in making the examination necessary for certificationof such financial statements, nothing has come to their attention that wouldlead them to believe that the Company has violated any provisions of ArticleVIII or Article X hereof or, if any such violation has occurred, specifying thenature and period of existence thereof, it being understood that suchaccountants shall not be liable directly or indirectly to any Person for anyfailure to obtain knowledge of any such violation.

 

(c)           The Company shall, so long as any ofthe Securities are outstanding, upon any officer of the Company becoming awareof any Default or Event of Default, deliver to the Trustee, no later than 10days after such officer becomes aware of such Default or Event of Default, anOfficers’ Certificate specifying such Default or Event of Default and whataction the Company is taking or proposes to take with respect thereto.

 

Section 10.19         Waiver of Certain Covenants.

 

The Company may omit inany particular instance to comply with any covenant or condition set forth inSections 8.01, 10.15 and 10.17, if before the time for such compliance theHolders of at least a majority in aggregate principal amount of the OutstandingSecurities, by Act of such Holders, either waive such compliance in suchinstance or generally waive compliance with such covenant or condition, but nosuch waiver shall extend to or affect such covenant or condition except to theextent expressly waived, and, until such waiver becomes effective, theobligations of the Company and the duties of the Trustee in respect of any suchcovenant

 

54

----

 

or condition shall remain in full force and effect; *provided*, *however*, with respect to an Offer toPurchase as to which an Offer has been mailed, no such waiver may be made orshall be effective against any Holders tendering Securities pursuant to suchOffer, and the Company may not omit to comply with the terms of such Offer asto such Holder.

 

Section 10.20         Payments for Consent.

 

The Company shall not,and shall not permit any of its Affiliates to, directly or indirectly, pay orcause to be paid any consideration to or for the benefit of any Holder ofSecurities for or as an inducement to, any consent, waiver or amendment of anyof the terms or provisions of this Indenture unless such consideration isoffered to be paid and is paid to all Holders of the Securities that consent,waive or agree to amend in the time frame set forth in the solicitationdocuments relating to such consent, waiver or agreement.

 

Section 10.21                          Covenants upon Attainment and Maintenance of an Investment Grade Rating.

 

(a)           The provisions of Sections 10.08,10.09, 10.11, 10.12, 10.13, 10.14 and 10.15 (including, to the extentapplicable, those portions of such other sections in this Indenture which makereference to provisions contained in Sections 10.08, 10.09, 10.11, 10.12,10.13, 10.14 and 10.15) shall not be applicable in the event, and only for solong as, the Securities are rated Investment Grade and no Default or Event ofDefault has occurred and is continuing (a “Covenant Suspension”).

 

(b)           In the event the Company’sobligations under this Indenture have been assumed or fully and unconditionallyguaranteed on a senior subordinated basis by a Person whose senior andunsecured Indebtedness is rated Investment Grade, Section 7.04(b) shall not beapplicable.

 

In addition to theforegoing and notwithstanding any other provision of this Indenture, in theevent of a Covenant Suspension, whose duration is not less than six consecutivemonths, shall have occurred but terminates because the Securities cease to berated Investment Grade then:

 

(1)           All Indebtedness Incurred by theCompany and its Restricted Subsidiaries during the Covenant Suspension thatwould not have been permitted to be Incurred pursuant to Section 10.08, hadSection 10.08 been applicable during the Covenant Suspension, shall be deemedto be “Existing Indebtedness.”

 

(2)           All Liens incurred by the Company andits Restricted Subsidiaries during the Covenant Suspension that would not havebeen permitted to be incurred pursuant to Section 10.13, had Section 10.13 beenapplicable during the Covenant Suspension, shall be deemed to be “ExistingLiens.”

 

(3)           All Preferred Stock issued by theCompany’s Restricted Subsidiaries during the Covenant Suspension that would nothave been permitted to be issued pursuant to Section 10.09, had such sectionbeen applicable during the Covenant Suspension, shall be deemed to be “ExistingPreferred Stock.”

 

(4)           All Restricted Payments made by theCompany or any of its Restricted Subsidiaries during the Covenant Suspensionthat would not have been permitted to be Incurred pursuant to Section 10.11,had such section been applicable during the Covenant Suspension (other than anyRestricted Payment or series of Restricted Payments that causes, or caused, theSecurities to cease to be rated Investment Grade), shall not be deemed to causea Default or Event of Default pursuant to Section 10.11; *provided*, *however*, that all Restricted Paymentsmade during the Covenant Suspension shall count as Restricted Payments for thecalculation made under the first paragraph of Section 10.11.

 

ARTICLE XI

 

REDEMPTION OFSECURITIES

 

Section 11.01         Right of Redemption.

 

Subject to Article XII,the Securities may be redeemed at the election of the Company, as a whole orfrom time to time in part, at the Redemption Prices specified in the form ofSecurity set forth in Article II together with accrued and unpaid interest, andLiquidated Damages, if any, to but excluding the Redemption Date.

 

Section 11.02         Applicability of Article XI.

 

Redemption of Securitiesat the election of the Company, as permitted by any provision of thisIndenture, shall be made in accordance with such provision and this Article XI.

 

55

----

 

Section 11.03         Election to Redeem; Notice toTrustee.

 

The election of theCompany to redeem any Securities pursuant to Section 11.01 shall be evidencedby a Board Resolution. In case of any redemption at the election of the Companyof less than all the Securities, the Company shall, at least 60 days prior tothe Redemption Date fixed by the Company (unless a shorter notice shall besatisfactory to the Trustee), notify the Trustee of such Redemption Date and ofthe aggregate principal amount of Securities to be redeemed.

 

Section 11.04         Selection by Trustee of Securitiesto Be Redeemed.

 

If less than all theSecurities are to be redeemed, the particular Securities to be redeemed shallbe selected not more than 60 days prior to the Redemption Date by the Trustee,from the Outstanding Securities not previously called for redemption, byprorating, as nearly as may be practicable, the principal amount of Securitiesto be redeemed. In any proration pursuant to this Section 11.04, the Trusteeshall make such adjustments, reallocations and eliminations as it shall deemproper (and in compliance with the requirements of the principal nationalsecurities exchange, if any, on which the Securities are listed) to the endthat the principal amount of Securities so prorated shall be $1,000 or amultiple thereof, by increasing or decreasing or eliminating the amount whichwould be allocable to any Holder on the basis of exact proportion by an amount notexceeding $1,000.

 

The Trustee shallpromptly notify the Company and each Security Registrar in writing of theSecurities selected for redemption and, in the case of any Securities selectedfor partial redemption, the principal amount thereof to be redeemed.

 

For all purposes of thisIndenture, unless the context otherwise requires, all provisions relating tothe redemption of Securities shall relate, in the case of any Securitiesredeemed or to be redeemed only in part, to the portion of the principal amountof such Securities which has been or is to be redeemed.

 

Section 11.05         Notice of Redemption.

 

Notice of redemptionshall be given by first-class mail, postage prepaid, mailed not less than 30nor more than 60 days prior to the Redemption Date, to each Holder ofsecurities to be redeemed, at his address appearing in the Security Register.

 

All notices of redemptionshall state:

 

(1)           the Redemption Date,

 

(2)           the Redemption Price,

 

(3)           if less than all the OutstandingSecurities are to be redeemed, the identification (and, in the case of partialredemption, the principal amounts) of the particular Securities to be redeemed,

 

(4)           that on the Redemption Date theRedemption Price will become due and payable upon each such Security to beredeemed and that interest, and Liquidated Damages, if any, thereon will ceaseto accrue on and after said date and

 

(5)           the place or places where suchSecurities are to be surrendered for payment of the Redemption Price.

 

Notice of redemption ofSecurities to be redeemed at the election of the Company shall be given by theCompany or, at the Company’s request, by the Trustee in the name and at theexpense of the Company.

 

Section 11.06         Deposit of Redemption Price.

 

Prior to any RedemptionDate, the Company shall deposit with the Trustee or with a Paying Agent (or, ifthe Company is acting as its own Paying Agent, segregate and hold in trust asprovided in Section 10.03) an amount of money sufficient to pay the RedemptionPrice of, and (except if the Redemption Date is an Interest Payment Date)accrued and unpaid interest, and Liquidated Damages, if any, on, all theSecurities which are to be redeemed on that date.

 

Section 11.07         Securities Payable on RedemptionDate.

 

If a notice of redemptionhas been given as aforesaid, the Securities to be redeemed shall, on theRedemption Date, become due and payable at the Redemption Price thereinspecified, and from and after such date (unless the Company defaults in thepayment of the Redemption Price, accrued interest, and Liquidated Damages) suchSecurities shall cease to bear interest or Liquidated Damages. Upon surrenderof any such Security for redemption in accordance with said notice, suchSecurity shall be paid by the Company at the Redemption Price, together withaccrued interest, and Liquidated Damages, if any, to, but excluding theRedemption Date; *provided*,*however*, that installmentsof interest or Liquidated Damages, whose Stated Maturity is on or prior to theRedemption 

 

56

----

 

Date shall be payable to the Holders of suchSecurities, or one or more Predecessor Securities, registered as such at theclose of business on the relevant Record Dates according to their terms and theprovisions of Section 3.08.

 

If any Security calledfor redemption is not so paid upon surrender thereof for redemption, theprincipal (and premium, if any) shall, until paid, bear interest and LiquidatedDamages, if any, from the Redemption Date at the rate provided by the Security.

 

Section 11.08         Securities Redeemed in Part.

 

Any Security which is tobe redeemed only in part shall be surrendered at any office or agency of theCompany designated for that purpose pursuant to Section 10.02 (with, if theCompany or the Trustee so requires, due endorsement by, or a written instrumentof transfer in form satisfactory to the Company and the Trustee duly executedby, the Holder thereof or his attorney duly authorized in writing), and theCompany shall execute, and the Trustee shall authenticate and deliver to the Holderof such Security without service charge, a new Security or Securities, of anyauthorized denomination as requested by such Holder, in aggregate principalamount equal to and in exchange for the unredeemed portion of the principal ofthe Security so surrendered.

 

ARTICLE XII

 

SUBORDINATION OFSECURITIES

 

Section 12.01         Securities Subordinate to SeniorIndebtedness.

 

The Company covenants andagrees, and each Holder of a Security, by his acceptance thereof, likewisecovenants and agrees, that, to the extent and in the manner hereinafter setforth in this Article XII (subject to the provisions of Article IV and ArticleXIII), the payment of the principal of (and premium, if any) and interest (andLiquidated Damages, if any), on each and all of the Securities are herebyexpressly made subordinate and subject in right of payment to the prior paymentin full of all Senior Indebtedness.

 

Section 12.02         Payment Over of Proceeds UponDissolution, Etc.

 

In the event of (a) anyinsolvency or bankruptcy case or proceeding, or any receivership, liquidation,reorganization or other similar case or proceeding in connection therewith,relative to the Company or to its creditors, as such, or to its assets, or(b) any liquidation, dissolution or other winding-up of the Company,whether voluntary or involuntary and whether or not involving insolvency orbankruptcy, or (c) any assignment for the benefit of creditors or anyother marshaling of assets and liabilities of the Company, then and in any suchevent specified in (a), (b) or (c) above (each such event, if any, hereinsometimes referred to as a “Proceeding”) the holders of SeniorIndebtedness shall be entitled to receive payment in full of all amounts due orto become due on or in respect of all Senior Indebtedness, or provision shallbe made for such payment in cash or Cash Equivalents or otherwise in a mannersatisfactory to the holders of Senior Indebtedness, before the holders of theSecurities are entitled to receive any payment or distribution of any kind orcharacter, whether in cash, property or securities, on account of principal of(or premium, if any) or interest (or Liquidated Damages, if any) on, or otherobligations in respect of, the Securities or other Indebtedness of the Companythat is *pari passu* or subordinatein right of payment to the Securities or on account of any purchase or otheracquisition of Securities or such other Indebtedness by the Company or anySubsidiary of the Company (all such payments, distributions, purchases andacquisition herein referred to, individually and collectively, as a “SecuritiesPayment”), and to that end the holders of Senior Indebtedness shall beentitled to receive, for application to the payment thereof, any SecuritiesPayment which may be payable or deliverable in respect of the Securities in anysuch Proceeding.

 

In the event that,notwithstanding the foregoing provisions of this Section 12.02, the Trustee orthe Holder of any Security shall have received any Securities Payment beforeall Senior Indebtedness is paid in full or payment thereof has been providedfor in cash or Cash Equivalents or otherwise in a manner satisfactory to theholders of Senior Indebtedness, and if such fact shall, at or prior to the timeof such Securities Payment, have been made known to the Trustee by delivery tothe Trustee of any notice set forth in Section 12.09 or, as the case may be,such Holder, then and in such event such Securities Payment shall be paid overor delivered forthwith by the Trustee (if any notice set forth in Section 12.09has been delivered to the Trustee) or by the Holder to the trustee inbankruptcy, receiver, liquidating trustee, custodian, assignee, agent or otherPerson making payment or distribution of assets of the Company (which may bethe Administrative Agent) for application to the payment of all SeniorIndebtedness remaining unpaid, to the extent necessary to pay all SeniorIndebtedness in full, after giving effect to any concurrent payment ordistribution to or for the holders of Senior Indebtedness.

 

For purposes of thisArticle XII only, the words “any payment or distribution of any kind orcharacter, whether in cash, property or securities” shall not be deemed toinclude a payment or distribution of stock or securities of the Companyprovided for by a plan of reorganization or readjustment authorized by an orderor decree of a court of competent jurisdiction in a reorganization proceedingunder any applicable bankruptcy law or of any other corporation provided for bysuch plan of reorganization or readjustment which stock or securities aresubordinated in right of payment to all then outstanding Senior Indebtedness tosubstantially the same extent as the Securities are so subordinated as providedin this Article XII. The consolidation of the Company with, or the merger ofthe Company into, another Person or the liquidation or dissolution of theCompany following the conveyance or transfer of all or substantially all of itsproperties and assets as an entirety to another Person upon the terms andconditions set forth in Article VIII shall

 

57

----

 

not be deemed a Proceeding for the purposes of thisSection 12.02 if the Person formed by such consolidation or into which theCompany is merged or the Person which acquires by conveyance or transfer suchproperties and assets as an entirety, as the case may be, shall, as a part ofsuch consolidation, merger, conveyance or transfer, comply with the conditionsset forth in Article VIII.

 

Section 12.03         No Payment When Senior Indebtednessin Default.

 

(a)           In the event that any Senior PaymentDefault shall have occurred and be continuing, or the maturity of any SeniorIndebtedness shall have been accelerated, then no Securities Payment shall bemade unless and until such Senior Payment Default shall have been cured orwaived or shall have ceased to exist and any acceleration of SeniorIndebtedness shall have been rescinded or annulled.

 

(b)           In the event that any SeniorNonmonetary Default shall have occurred and be continuing, then, upon thereceipt by the Company and the Trustee of written notice of such SeniorNonmonetary Default from an Administrative Agent or, if there is no outstandingDesignated Senior Indebtedness, any representative of a holder of SeniorIndebtedness, no Securities Payment shall be made during the period (the “PaymentBlockage Period”) commencing on the date of such receipt of such writtennotice and ending on the earlier of (i) the date on which such SeniorNonmonetary Default is cured or waived or has ceased to exist and anyacceleration of Senior Indebtedness is rescinded or annulled or the SeniorIndebtedness to which such Senior Nonmonetary Default relates is discharged or(ii) the 179th day after the date of such receipt of such written notice.No more than one Payment Blockage Period may be commenced with respect to theSecurities during any 360-day period, and there shall be a period of at least181consecutive days in each 360-day period when no Payment Blockage Period isin effect. For all purposes of this Section 12.03, no Senior NonmonetaryDefault that was known to the holders of Senior Indebtedness to exist or becontinuing on the date of commencement of any Payment Blockage Period shall be,or be made, the basis for the commencement of a subsequent Payment BlockagePeriod by a representative for the Designated Senior Indebtedness unless suchSenior Nonmonetary Default shall have been cured for a period of not less than90 consecutive days.

 

Section 12.04         Payment Permitted If No Default.

 

Nothing contained in thisArticle XII or elsewhere in this Indenture or in any of the Securities shallprevent (a) the Company, at any time except during the pendency of anyProceeding referred to in Section 12.02 or under the conditions described inSection 12.03, from making Securities Payments, or (b) the application bythe Trustee of any money deposited with it hereunder to Securities Payments orthe retention of such Securities Payment by the Holders, if, at the time ofsuch application by the Trustee, it had not received any notice set forth inSection 12.09.

 

Section 12.05         Subrogation to Rights of Holders ofSenior Indebtedness.

 

Subject to the payment infull of all amounts due or to become due on or in respect of SeniorIndebtedness, or the provision for such payment in cash or Cash Equivalents orotherwise in a manner satisfactory to the holders of Senior Indebtedness, theHolders of the Securities shall be subrogated to the rights of the holders ofsuch Senior Indebtedness to receive payments and distributions of cash,property and securities applicable to the Senior Indebtedness until theprincipal of (and premium, if any) and interest (and Liquidated Damages, ifany), on the Securities is paid in full. For purposes of such subrogation, nopayments or distributions to the holders of the Senior Indebtedness of anycash, property or securities to which the Holders of the Securities or theTrustee would be entitled except for the provisions of this Article XII, and nopayments pursuant to the provisions of this Article XII to the holders ofSenior Indebtedness by Holders of the Securities or the Trustee, shall, asamong the Company, its creditors other than holders of Senior Indebtedness andthe Holders of the Securities, be deemed to be a payment or distribution by theCompany to or on account of the Securities.

 

Section 12.06         Provisions Solely to Define RelativeRights.

 

The provisions of thisArticle XII are and are intended solely for the purpose of defining therelative rights of the Holders on the one hand and the holders of SeniorIndebtedness on the other hand. Nothing contained in this Article XII orelsewhere in this Indenture or in the Securities is intended to or shall(a) impair, as among the Company, its creditors other than holders ofSenior Indebtedness and the Holders of the Securities, the obligation of theCompany, which is absolute and unconditional (and which, subject to the rightsunder this Article XII of the holders of Senior Indebtedness, is intended torank equally with all other general obligations of the Company), to pay to theHolders of the Securities the principal of (and premium, if any), and interestand Liquidated Damages, if any, on the Securities as and when the same becomedue and payable in accordance with their terms; or (b) affect the relativerights against the Company of the Holders of the Securities and creditors ofthe Company other than the holders of Senior Indebtedness; or (c) preventthe Trustee or the Holder of any Security from exercising all remediesotherwise permitted by applicable law upon default under this Indenture,subject to the rights, if any, under this Article XII of the holders of SeniorIndebtedness to receive cash, property and securities otherwise payable ordeliverable to the Trustee or such Holder.

 

58

----

 

Section 12.07         Trusteeto Effectuate Subordination.

 

Each Holder of a Securityby his acceptance thereof authorizes and directs the Trustee on his behalf totake such action as may be necessary or appropriate to effectuate thesubordination provided in this Article XII and appoints the Trustee hisattorney-in-fact for any and all such purposes.

 

Section 12.08         No Waiver of SubordinationProvisions.

 

No right of any presentor future holder of any Senior Indebtedness to enforce subordination as hereinprovided shall at any time in any way be prejudiced or impaired by any act orfailure to act on the part of the Company or by any act or failure to act, ingood faith, by any such holder, or by any noncompliance by the Company with theterms, provisions and covenants of this Indenture, regardless of any knowledgethereof any such holder may have or be otherwise charged with.

 

Without in any waylimiting the generality of the foregoing paragraph, the holders of Senior Indebtednessmay, at any time and from time to time, without the consent of or notice to theTrustee or the Holders of the Securities, without incurring responsibility tothe Holders of the Securities and without impairing or releasing thesubordination provided in this Article XII or the obligations hereunder of theHolders of the Securities to the holders of Senior Indebtedness, do any one ormore of the following: (i) change the manner, place or terms of payment orextend the time of payment of, or renew or alter, Senior Indebtedness, orotherwise amend or supplement in any manner Senior Indebtedness or anyinstrument evidencing the same or any agreement under which Senior Indebtednessis outstanding; (ii) sell, exchange, release or otherwise deal with any propertypledged, mortgaged or otherwise securing Senior Indebtedness;(iii) release any Person liable in any manner for the collection of SeniorIndebtedness; and (iv) exercise or refrain from exercising any rightsagainst the Company and any other Person.

 

Section 12.09         Notice to Trustee.

 

The Company shall giveprompt written notice to the Trustee of any fact known to the Company whichwould prohibit the making of any payment to or by the Trustee in respect of theSecurities. Notwithstanding the provisions of this Article XII or any otherprovision of this Indenture, the Trustee shall not be charged with knowledge ofthe existence of any facts which would prohibit the making of any payment to orby the Trustee in respect of the Securities, unless and until the Trustee shallhave received written notice thereof from the Company or a holder of SeniorIndebtedness or from any trustee, representative or Administrative Agenttherefor; and, prior to the receipt of any such written notice, the Trustee,subject to the provisions of Section 6.01, shall be entitled in all respects toassume that no such facts exist; *provided*,*however*, that if theTrustee has not received the notice provided for in this Section 12.09 at leastfive Business Days prior to the date upon which by the terms hereof any moneymay become payable for any purpose (including, without limitation, the paymentof the principal of or premium, interest or Liquidated Damages on, anySecurity), then, anything herein contained to the contrary notwithstanding, theTrustee shall have full power and authority to receive such money and to applythe same to the purpose for which such money was received and shall not beaffected by any notice to the contrary which may be received by it within fiveBusiness Days prior to such date.

 

Subject to the provisionsof Section 6.01, the Trustee shall be entitled to rely on the delivery to it ofa written notice by a Person representing himself to be a holder of SeniorIndebtedness (or a trustee or Administrative Agent therefor) to establish thatsuch notice has been given by a holder of Senior Indebtedness (or a trustee orAdministrative Agent therefor). In the event that the Trustee determines ingood faith that further evidence is required with respect to the right of anyPerson as a holder of Senior Indebtedness to participate in any payment ordistribution pursuant to this Article XII, the Trustee may request such Personto furnish evidence to the reasonable satisfaction of the Trustee as to theamount of Senior Indebtedness held by such Person, the extent to which suchPerson is entitled to participate in such payment or distribution and any otherfacts pertinent to the rights of such Person under this Article XII, and ifsuch evidence is not furnished, the Trustee may defer any payment to suchPerson pending judicial determination as to the right of such Person to receivesuch payment.

 

Section 12.10         Reliance on Judicial Order orCertificate of Liquidating Agent.

 

Upon any payment ordistribution of assets of the Company referred to in this Article XII, theTrustee, subject to the provisions of Section 6.01, and the Holders of theSecurities shall be entitled to rely upon any order or decree entered by anycourt of competent jurisdiction in which a Proceeding is pending, or acertificate of the trustee in bankruptcy, receiver, liquidating trustee,custodian, assignee for the benefit of creditors, agent or other Person makingsuch payment or distribution, delivered to the Trustee or to the Holders ofSecurities, for the purpose of ascertaining the Persons entitled to participatein such payment or distribution, the holders of the Senior Indebtedness andother indebtedness of the Company, the amount thereof or payable thereon, theamount or amounts paid or distributed thereon, the amount or amounts paid ordistributed thereon and all other facts pertinent thereto or to this ArticleXII.

 

Section 12.11         Trustee Not Fiduciary for Holders ofSenior Indebtedness.

 

The Trustee shall not bedeemed to owe any fiduciary duty to the holders of Senior Indebtedness, and itundertakes to perform and observe only such of its covenants and obligationswith respect to the Senior Indebtedness as are specifically set forth in thisIndenture. No implied covenants or obligations with respect to the SeniorIndebtedness shall be read into this Indenture against the Trustee and theTrustee shall not be liable to any such holders if it shall in good faithmistakenly pay over or distribute to

 

59

----

 

Holders of Securities or to the Company or to anyother Person cash, property or securities to which any holders of SeniorIndebtedness shall be entitled by virtue of this Article XII or otherwise.

 

Section 12.12                          Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights.

 

The Trustee in itsindividual capacity shall be entitled to all the rights set forth in thisArticle XII with respect to any Senior Indebtedness which may at any time beheld by it, to the same extent as any other holder of Senior Indebtedness, andnothing in this Indenture shall deprive the Trustee of any of its rights assuch holder.

 

Nothing in this ArticleXII shall apply to claims of, or payments to, the Trustee under or pursuant toSection 6.07.

 

Section 12.13         Article XII Applicable to PayingAgents.

 

In case at any time anyPaying Agent other than the Trustee shall have been appointed by the Companyand be then acting hereunder, the term “Trustee” as used in this Article XIIshall in such case (unless the context otherwise requires) be construed asextending to and including such Paying Agent within its meaning as fully forall intents and purposes as if such Paying Agent were named in this Article XIIin addition to or in place of the Trustee; *provided*,*however*, that Section12.12 shall not apply to the Company or any Affiliate of the Company if it orsuch Affiliate acts as Paying Agent.

 

Section 12.14         Defeasance of this Article XII.

 

The subordination of theSecurities provided by this Article XII is expressly made subject to theprovisions for defeasance or covenant defeasance in Article XIII hereof and,anything herein to the contrary notwithstanding, upon the effectiveness of anysuch defeasance or covenant defeasance, the Securities then Outstanding shallthereupon cease to be subordinated pursuant to this Article XII.

 

ARTICLE XIII

 

DEFEASANCE ANDCOVENANT DEFEASANCE

 

Section 13.01                          Company’s Option to Effect Defeasance or Covenant Defeasance.

 

The Company may at itsoption by Board Resolution, at any time, elect to have either Section 13.02 orSection 13.03 applied to the Outstanding Securities upon compliance with theconditions set forth below in this Article XIII.

 

Section 13.02         Defeasance and Discharge.

 

Upon the Company’sexercise of the option provided in Section 13.01 applicable to this Section13.02, the Company shall be deemed to have been discharged from its obligationswith respect to the Outstanding Securities, and the provisions of Article XIIhereof shall cease to be effective, on the date the conditions set forth beloware satisfied (hereinafter, “defeasance”). For this purpose, suchdefeasance means that the Company shall be deemed to have paid and dischargedthe entire indebtedness represented by the Outstanding Securities, which shallthereafter be deemed to be “Outstanding” only for the purposes of Section 13.05and the other Sections of this Indenture referred to in Clauses (A) and (B)below, and to have satisfied all its other obligations under such Securitiesand this Indenture insofar as such Securities are concerned (and the Trustee,at the expense of the Company, shall execute proper instruments acknowledgingthe same), except for the following which shall survive until otherwiseterminated or discharged hereunder: (A) the rights of Holders of suchSecurities to receive, solely from the trust fund described in Section 13.04and as more fully set forth in such Section, payments in respect of theprincipal of (and premium, if any) Liquidated Damages, if any, and interest onsuch Securities when such payments are due, (B) the Company’s obligationswith respect to such Securities under Sections 3.04, 3.05, 3.06, 3.07, 10.02and 10.03, (C) the rights, powers, trusts, duties and immunities of theTrustee hereunder and (D) this Article XIII. Subject to compliance withthis Article XII, the Company may exercise its option under this Section 13.02notwithstanding the prior exercise of its option under Section 13.03.

 

Section 13.03         Covenant Defeasance.

 

Upon the Company’sexercise of the option provided in Section 13.01 applicable to this Section,(i) the Company shall be released from its obligations under Sections10.05 through 10.17, inclusive, and Clauses (c), (d) and (e) of Section 8.01,(ii) the occurrence of an event specified in Sections 5.01(c), 5.01(d)(with respect to Clauses (a), (c), (d) or (e) of Section 8.01), 5.01(e) (withrespect to any of Sections 10.05 through 10.17, inclusive), 5.01(f) and 5.01(g)shall not be deemed to be an Event of Default and (iii) the provisions ofArticle XII hereof shall cease to be effective on and after the date allconditions set forth below are satisfied (hereinafter, “covenant defeasance”).For this purpose, such covenant defeasance means that the Company may omit tocomply with and shall have 

 

60

----

 

no liability in respect of any term, condition orlimitation set forth in any such Section, Clause or Article or by reason of anyreference in any such Section, Clause or Article to any other provision hereinor in any other document, but the remainder of this Indenture and suchSecurities shall be unaffected thereby.

 

Section 13.04         Conditions to Defeasance or CovenantDefeasance.

 

The following shall bethe conditions to application of either Section 13.02 or Section 13.03 to thethen Outstanding Securities:

 

(a)           The Company shall irrevocably havedeposited or caused to be deposited with the Trustee (or another trusteesatisfying the requirements of Section 6.09 who shall agree to comply with theprovisions of this Article XIII applicable to it) as trust funds in trust forthe purpose of making the following payments, specifically pledged as securityfor, and dedicated solely to, the benefit of the Holders of such Securities,(A) money in an amount, or (B) U.S. Government Obligations whichthrough the scheduled payment of principal and interest in respect thereof inaccordance with their terms, without the need for reinvestment, will provide,not later than one day before the due date of any payment, money in an amount,or (C) a combination thereof, sufficient, in the opinion of a nationallyrecognized firm of independent public accountants expressed in a writtencertification thereof delivered to the Trustee, to pay and discharge, and whichshall be applied by the Trustee (or other qualifying trustee) to pay anddischarge, the principal of (and premium, if any,) and each installment ofinterest, if any, on the Outstanding Securities on the Stated Maturity of suchprincipal or installment of interest in accordance with the terms of thisIndenture and of such Securities. For this purpose, “U.S. GovernmentObligations” means securities that are (x) direct obligations of theUnited States of America for the payment of which its full faith and credit ispledged or (y) obligations of a Person controlled or supervised by andacting as an agency or instrumentality of the United States of America thepayment of which is unconditionally guaranteed as a full faith and creditobligation by the United States of America, which, in either case, are notcallable or redeemable at the option of the issuer thereof, and shall alsoinclude a depository receipt issued by a bank (as defined in Section 3(a)(2) ofthe Securities Act) as custodian with respect to any such U.S. GovernmentObligation or a specific payment of principal of or interest on any such U.S.Government Obligation held by such custodian for the account of the holder ofsuch depository receipt, *provided*that (except as required by law) such custodian is not authorized to make anydeduction from the amount payable to the holder of such depository receipt fromany amount received by the custodian in respect of the U.S. GovernmentObligation or the specific payment of principal of or interest on the U.S.Government Obligation evidenced by such depository receipt.

 

(b)           In the case of an election underSection 13.02, the Company shall have delivered to the Trustee an Opinion ofCounsel stating that (x) the Company has received from, or there has beenpublished by, the Internal Revenue Service a ruling, or (y) since the dateof this Indenture there has been a change in the applicable federal income taxlaw, in either case to the effect that, and based thereon such opinion shallconfirm that, the Holders of the Outstanding Securities will not recognize gainor loss for federal income tax purposes as a result of such deposit, defeasanceand discharge and will be subject to federal income tax on the same amount, inthe same manner and at the same times as would have been the case if such deposit,defeasance and discharge had not occurred.

 

(c)           In the case of an election underSection 13.03, the Company shall have delivered to the Trustee an Opinion ofCounsel to the effect that the Holders of the Outstanding Securities will notrecognize gain or loss for federal income tax purposes as a result of suchdeposit and covenant defeasance and will be subject to federal income tax onthe same amount, in the same manner and at the same times as would have beenthe case if such deposit covenant defeasance and discharge had not occurred.

 

(d)           The Company shall have delivered tothe Trustee an Officers’ Certificate to the effect that the Securities, if thenlisted on any securities exchange, will not be delisted as a result of suchdeposit.

 

(e)           Such defeasance or covenantdefeasance shall not cause the Trustee to have a conflicting interest asdefined in Section 6.08 and for purposes of the Trust Indenture Act withrespect to any securities of the Company.

 

(f)            No Default or Event of Default shallhave occurred and be continuing on the date of such deposit or, insofar asSection 5.01(h) is concerned, at any time during the period ending on the 121stday after the date of such deposit (it being understood that this conditionshall not be deemed satisfied until the expiration of such period).

 

(g)           Such defeasance or covenantdefeasance shall not result in a breach or violation of, or constitute adefault under, any other agreement or instrument to which the Company is aparty or by which it is bound.

 

(h)           The Company shall have delivered tothe Trustee an Officers’ Certificate and an Opinion of Counsel, each statingthat all conditions precedent relating to either the defeasance under Section13.02 or the covenant defeasance under Section 13.03 (as the case may be) havebeen satisfied.

 

61

----

 

(i)            Such defeasance or covenantdefeasance shall not result in the trust arising from such deposit constitutingan investment company as defined in the Investment Company Act of 1940, asamended, or such trust shall be qualified under such act or exempt fromregulation thereunder.

 

Section 13.05                          Deposited Money and U.S. Government Obligationsto be Held in Trust; Other Miscellaneous Provisions.

 

Subject to the provisionsof the last paragraph of Section 10.03, all money and U.S. GovernmentObligations (including the proceeds thereof) deposited with the Trustee (orother qualifying trustee — collectively, for purposes of this Section 13.05,the “Trustee”) pursuant to Section 13.04 in respect of the Securitiesshall be held in trust and applied by the Trustee, in accordance with theprovisions of such Securities and this Indenture, to the payment, eitherdirectly or through any Paying Agent (including the Company acting as its ownPaying Agent) as the Trustee may determine, to the Holders of such Securities,of all sums due and to become due thereon in respect of principal (and premium,if any) or Liquidated Damages, if any, and interest, but such money need not besegregated from other funds except to the extent required by law. Money so heldin trust shall not be subject to the provisions of Article XII.

 

The Company shall pay andindemnify the Trustee against any tax, fee or other charge imposed on orassessed against the U.S. Government Obligations deposited pursuant to Section13.04 or the principal and interest received in respect thereof other than anysuch tax, fee or other charge which by law is for the account of the Holders ofthe Outstanding Securities.

 

Anything in this ArticleXIII to the contrary notwithstanding, the Trustee shall deliver or pay to theCompany from time to time upon Company Request any money or U.S. GovernmentObligations held by it as provided in Section 13.04 which, in the opinion of anationally recognized firm of independent public accountants expressed in awritten certification thereof delivered to the Trustee, are in excess of theamount thereof which would then be required to be deposited to effect anequivalent defeasance or covenant defeasance.

 

Section 13.06         Reinstatement.

 

If the Trustee or thePaying Agent is unable to apply any money in accordance with Section 13.02 or13.03 by reason of any order or judgment of any court or governmental authorityenjoining, restraining or otherwise prohibiting such application, then theCompany’s obligations under this Indenture and the Securities shall be revivedand reinstated as though no deposit had occurred pursuant to this Article XIIIuntil such time as the Trustee or Paying Agent is permitted to apply all suchmoney in accordance with Section 13.02 or 13.03; *provided*, *however*,that if the Company makes any payment of principal of (and premium, if any) orLiquidated Damages, if any, or interest on any Security following thereinstatement of its obligations, the Company shall be subrogated to the rightsof the Holders of such Securities to receive such payment from the money heldby the Trustee or the Paying Agent.

 

62

----

 

IN WITNESS WHEREOF, theparties hereto have caused this Indenture to be duly executed, all as of theday and year first above written.

 
|   | RURAL CELLULAR  CORPORATION      |
|--------|----------------------------------|
|   |                             |   |
|   | By:                              |   |   |
|   | Name:                            | Wesley E. Schultz |
|   | Title:                           | Executive Vice  President & Chief  Financial Officer |
|   |                             |   |
|   | WELLS FARGO BANK  MINNESOTA,N.A. |
|   |                             |   |
|   | By:                              |   |   |
|   | Name:                            |   |
|   | Title:                           | Corporate Trust Officer |
|   |                             | (Authorized Officer) |
|        |                                  |  |  |  |  |

 

63

----

 

**Schedule 10.08**

 

**ExistingIndebtedness**

 
| 1.     | $41,260.74 under a  capital lease for equipment with Avaya/CIT dated November 7, 2000.                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 2.     | $274,232.39 under a  capital lease for equipment with Avaya/CIT dated November 7, 2000.                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 3.     | $349,500.00 under a  capital lease for equipment with Avaya dated January 29, 2001.                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 4.     | $40,398.45 under a  capital lease for equipment with Ford dated January 31, 2001.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 5.     | $801,810,684 in  principal amount of term loans of the Credit Facility.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 6.     | $125,000,000 in  principal amount of 9-5/8% Senior Subordinated Notes due 2008.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| Note:  | The Company is party to  a purchase option agreement whereby it may acquire certain cell sites in the  future for $6.5 million. The option expires February 28, 2003. Since the  Company expects to exercise the option, the unpaid portion of the total cost  is included as long-term debt on the Company’s books. The Company assumed an  agreement to utilize the assets covered by the option for the period prior to  exercising the option. The ongoing payments pursuant to this agreement have  been reflected as interest expense by the Company. |

 

----

 

**Schedule10.12**

 

**LimitationsConcerning Distributions and**

**TransfersBy Restricted Subsidiaries**

 

None

 

----

 

Schedule 10.08

**Schedule10.14**

 

**Limitationon Transactions with Affiliates and Related Persons**

 

Revolving Credit Agreement dated as of August 29,1997, as amended, between Wireless Alliance, LLC (Borrower) and Rural CellularCorporation (Lender)

 

----

 

Reconciliation andtie between Trust Indenture Act of 1939 and Indenture, dated as of January 16, 2002.

 
| **Trust  Indenture  Act Section** |   |           | **Indenture  Section** |
|-----------------------------------|--------|----------------|------------------------|
| §310(a)(1)                   |   | 6.09           |
| (a)(2)                            |   | 6.09           |
| (a)(3)                            |   | Not applicable |
| (a)(4)                            |   | Not applicable |
| (a)(5)                            |   | 6.08           |
| (b)                               |   | 6.08           |
|                              |   | 6.10           |
| (c)                               |   | Not applicable |
| §311(a)                      |   | 6.13           |
| (b)                               |   | 6.13           |
| (c)                               |   | Not applicable |
| §312(a)                      |   | 7.01           |
|                              |   | 7.02(a)        |
| (b)                               |   | 7.02(b)        |
| (c)                               |   | 7.02(c)        |
| §313(a)                      |   | 7.03(a)        |
| (b)(1)                            |   | Not applicable |
| (b)(2)                            |   | 7.03(a)        |
| (c)                               |   | 7.03(a)        |
|                              |   | 1.06           |
| (d)                               |   | 7.03(b)        |
| §314(a)                      |   | 7.04, 10.18    |
| (b)                               |   | Not applicable |
| (c)(1)                            |   | 1.02           |
| (c)(2)                            |   | 1.02           |
| (c)(3)                            |   | Not applicable |
| (d)                               |   | Not applicable |
| (e)                               |   | 1.02           |
| §315(a)                      |   | 6.01           |
|                              |   | 6.03           |
| (b)                               |   | 6.02           |
|                              |   | 1.06           |
| (c)                               |   | 6.01(a)        |
| (d)                               |   | 6.01(b)        |
| (e)                               |   | 5.14           |
| §316(a)(last sentence)       |   | 1.01           |
| (a)(1)(A)                         |   | 5.12           |
| (a)(1)(B)                         |   | 5.13           |
| (a)(2)                            |   | Not applicable |
| (b)                               |   | 5.08           |
| §317(a)(1)                   |   | 5.03           |
| (a)(2)                            |   | 5.04           |
| (b)                               |   | 10.03          |
| §318(a)                      |   | 1.07           |

 

ThisReconciliation and tie shall not, for any purpose, be deemed to be a part ofthe Indenture.

 

A-1

----