EXECUTION
COPY


 


RURAL CELLULAR
CORPORATION


 


TO


 


WELLS FARGO BANK
MINNESOTA,


N.A.,


as Trustee


 


INDENTURE


 


Dated as of
January 16, 2002


 


$500,000,000


 


9 3⁄4% Senior
Subordinated Notes due 2010


 


9 3⁄4% Series B
Senior 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 of
January 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 3905Dakota
Street S.W., Alexandria, MN 56308, and Wells Fargo Bank Minnesota, N.A., as
Trustee (herein called the “Trustee”).


 


RECITALS OF THE
COMPANY


 


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


 


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


 


NOW, THEREFORE,
THIS INDENTURE WITNESSETH:


 


For and in consideration
of the premises and the purchase of the Securities by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities, as follows:


 


ARTICLE I


 


DEFINITIONS AND
OTHER PROVISIONS


OF GENERAL
APPLICATION


 


Section 1.01 Definitions.


 


For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


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


 


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


 


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


 


(4)           unless otherwise specifically set
forth herein, all calculations or determinations of a Person shall be performed
or made on a consolidated basis in accordance with GAAP but shall not include
the assets and liabilities of Unrestricted Subsidiaries, except to the extent
of dividends and distributions actually paid to the Company or one of its
Wholly Owned Restricted Subsidiaries; and


 


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


 


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


 


Certain terms, used
principally 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, in
the case of both of the preceding Clause (1)and Clause (2), other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition. Acquired Indebtedness
shall be deemed to be Incurred on the date of the related acquisition of assets
from any Person or the date the acquired Person becomes a Restricted
Subsidiary.


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Affiliate” of any
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such Person. For the
purposes of this definition, “control” when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative 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 Security
or beneficial interest therein, the rules and procedures of the Depositary for
such Security, Euroclear and Clearstream, in each case to the extent applicable
to such transaction and as in effect from time to time.


 


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


 


“Authenticating Agent”
means any Person authorized by the Trustee to act on behalf of the Trustee to
authenticate 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 that
Person or any duly authorized committee of that board.


 


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


 


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


 


“Capital Lease
Obligation” means that portion of any obligation of a Person as lessee
under a lease which is required to be capitalized on the balance sheet of such
lessee 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 and
non-voting) of equity of such Person.


 


“Cash Equivalents”
means:


 


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


 


(2)           time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial 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 the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Moody’s and in each case maturing within one year after the date of acquisition
and


 


2

















 


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


 


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


 


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


 


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


 


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


 


“Company” means
the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture and thereafter “Company” shall mean such successor
Person.


 


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


 


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


 


“Consolidated Interest
Expense” of any Person means for any period the interest expense included
in an income statement (taking into account the effect of any Hedge Agreements
but without deduction of interest income) of such Person and its Restricted
Subsidiaries 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 obligation
in respect of any Capital Lease Obligation allocable to interest expense in
accordance with GAAP;


 


(2)           the amortization of Indebtedness
discounts;


 


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


 


(4)           fees with respect to Hedge
Agreements;


 


(5)           the portion of any rental obligations
in 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 or
payable other than dividends on Qualified Capital Stock of such Person.


 


“Consolidated Net
Income” of any Person means for any period the net income (or loss) of such
Person and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided
that there shall be excluded therefrom (to the extent included and without
duplication):


 


3

















 


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


 


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


 


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


 


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


 


(5)           all extraordinary gains and
extraordinary losses.


 


“Consolidated Net
Worth” of any Person means the consolidated shareholders’ equity of such
Person, determined on a consolidated basis in accordance with GAAP; provided, that such computation shall
exclude (1) any amounts attributable to Redeemable Stock or any equity security
convertible into or exchangeable for Indebtedness, the cost of treasury stock
and the principal amount of any promissory notes receivable from the sale of
the 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 Bank
Equity” means non-voting equity interests in Cooperative Banks.


 


“Corporate Trust
Office” means the principal office of the Trustee at Sixth Street and
Marquette Avenue, Minneapolis, Minnesota 55479-0069 at which at any particular
time its corporate trust business shall be administered or such other location
designated 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 Lead
Arranger, 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 further
amended, supplemented, restated, refunded, replaced, renewed, extended,
refinanced, increased or otherwise modified, in whole or in part, from time to
time.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


“Euroclear” means
the 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 Debentures
and the Additional Senior Subordinated Exchange Debentures may be issued.


 


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


 


“Exchange Registration
Statement” means a registration statement of the Company under the
Securities Act registering Exchange Securities for distribution pursuant to an
Exchange Offer.


 


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


 


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


 


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


 


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


 


“Existing Senior
Subordinated Notes” means the 9 5¤8% Senior Subordinated Notes due 2008 of
the 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 be
negotiated in an arm’s-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. Fair Market Value will be determined
(1) if such Person or assets have a Fair Market Value of up to $2.5 million, by
any executive officer of the Company and evidenced by an Officers’ Certificate,
dated within 30 days of the relevant transaction, (2) if such Person or assets
have a Fair Market Value equal to or in excess of $2.5 million but not in
excess of $10 million, by a majority of the Board of Directors of the Company
and evidenced by a Board Resolution, dated within 30 days of the relevant
transaction or (3) if such Person or assets have a Fair Market Value in excess
of $10 million, by a majority of the Board of Directors of the Company and
evidenced by a Board Resolution, dated within 30 days of the relevant
transaction, based on an appraisal of an independent appraiser of national
reputation.


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity or
entities as have been approved by a significant segment of the accounting
profession 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 time
between the company or any Restricted Subsidiary, on the one hand, and any
Person, on the other hand, as such agreement or arrangement may be modified,
supplemented and in effect from time to time.


 


“Holder” means a
Person 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 or
otherwise become liable in respect of such Indebtedness or other obligation or
the recording, as required pursuant to GAAP or otherwise, of any such Indebtedness
or other obligation on the balance sheet of such Person (and “Incurrence,”
“Incurred,” “Incurrable” and “Incurring” shall have meanings correlative to the
foregoing); provided that
the accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of
Indebtedness with the same terms and the payment of dividends on Redeemable
Stock in the form of additional shares of the same class of Redeemable Stock
shall not be deemed to be an Incurrence of Indebtedness (provided, in each such
case, that the amount thereof shall be included in the Consolidated Interest
Expense and Indebtedness of the Company as accrued).


 


5

















 


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


 


(1)           every obligation of such Person for
money borrowed,


 


(2)           every obligation of such Person
evidenced by bonds, debentures, notes or similar instruments, including
obligations Incurred in connection with the acquisition of property, assets or
businesses,


 


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


 


(4)           every obligation of such Person
issued or assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business),


 


(5)           every Capital Lease Obligation of
such Person,


 


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


 


(7)           every obligation to pay rent or other
payment amounts of such Person with respect to any Sale and Leaseback
Transaction to which such Person is a party,


 


(8)           all obligations under Hedge
Agreements,


 


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


 


(10)         the liquidation value of Preferred
Stock of a Subsidiary of such Person issued and outstanding and held by other
than 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 any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the unamortized portion of the original issue discount of
such Indebtedness at the time of its issuance as determined in conformity with
GAAP, and


 


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


 


For purposes of this Indenture, the amount of any
Indebtedness under any Hedge Agreement shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of
such Person, based on the assumption that such Hedge Agreement had terminated
at the end of such fiscal quarter, and in making such determination, if such
Hedge Agreement or any related agreement provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligations shall be the net amount so determined,
unless the counterparty under such agreement is in default under such agreement
or defaults in making the corresponding payment to such Person.


 


“Indenture” means
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into 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 Boston
Corporation, TD Securities (USA) Inc., Banc of America Securities LLC and First
Union Securities, Inc. and (2) with respect to Original Securities issued after
the Issue Date, the initial purchasers of such Securities from the Company in
connection with an exempt offering of Securities to “qualified institutional
buyers” (as such term is defined in Rule 144A) and to other persons.


 


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


 


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


 


“Investment” by
any 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 other
Person or any agreement to make any such acquisition;


 


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


 


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


 


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


 


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


 


For purposes of Section
10.11:


 


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


 


(B)           the amount of any Investment shall be
the Fair Market Value of such Investment at the time any such Investment is
made.


 


“Investment Grade”
means a rating of the relevant debt obligation of a Person by both S&P and
Moody’s, any such rating being in one of such agency’s four highest generic
rating categories that signifies investment grade (i.e., currently BBB- (or the
equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by
Moody’s); provided in each
case such ratings are publicly available; provided,
further that in the event
either S&P or Moody’s is no longer in existence for purposes of determining
whether such debt obligations are rated “Investment Grade,” such organization
may be replaced by a nationally recognized statistical rating organization (as
defined in Rule436 under the Securities Act) designated by the Company, written
notice of which shall be given to the Trustee.


 


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


 


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


 


“Lien” means, with
respect 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 or
marketability), encumbrance, preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including, without limitation, any conditional sale
or other title retention agreement having substantially the same economic
effect 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 such
Security becomes due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.


 


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


 


“Net Cash Proceeds”
means the aggregate amount of cash and Cash Equivalents received by the Company
and its Restricted Subsidiaries in respect of an Asset Sale (including upon the
conversion to cash and Cash Equivalents of (a) any note or installment
receivable at any time or (b) any other property as and when any cash and Cash
Equivalents are received in respect of any property received in an Asset Sale
but only to the extent such cash and Cash Equivalents are received within one
year after such Asset Sale), less the sum of (1) all reasonable out-of-pocket
fees, commissions and other expenses incurred in connection with such Asset
Sale, including the amount (estimated in good faith by the Board of Directors
of the Company) of income, franchise, sales and other applicable taxes required
to be paid by the Company or any Restricted Subsidiary of the Company in
connection with such Asset Sale and (2) the aggregate amount of cash so
received which is used to retire any existing Senior Indebtedness or
Indebtedness of the Company that ranks pari
passu in right of payment with the Securities or existing
Indebtedness of such Restricted Subsidiaries, as the case may be, which is
required to be repaid in connection with such Asset Sale or is secured by a
Lien on the property or assets of the Company or any of its Restricted
Subsidiaries, as the case may be; provided that Indebtedness ranking pari passu in right of payment 


 


7

















 


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


 


“Non-Recourse Debt”
means Indebtedness:


 


(1)           as to which neither the Company nor
any of its Restricted Subsidiaries:


 


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


 


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


 


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


 


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


 


(3)           as to which the lenders will not have
any recourse to the assets of the Company or the stock or assets of any of its
Restricted Subsidiaries.


 


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


 


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


 


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


 


The Offer shall also
state:


 


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


 


(2)           the Expiration Date and the Purchase
Date;


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


(9)           that Holders will be entitled to
withdraw all or any portion of Securities tendered if the Company (or its
Paying Agent) receives, not later than the close of business on the Expiration
Date, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder tendered,
the certificate number of the Security the Holder tendered and a statement that
such Holder is withdrawing all or a portion of his tender;


 


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


 


(11)         that in the case of any Holder whose
Security is purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unpurchased portion of the Security so tendered.


 


“Offering Memorandum”
means the Offering Memorandum, dated January 11, 2002, with respect to the
offering 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 the
principal executive officer, principal accounting officer or principal
financial 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 such
Person for such period, plus


 


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


 


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


 


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


 


(c)           Consolidated Interest Expense, to the
extent that any such expense was deducted in computing such Consolidated Net
Income, of such Person for such period, determined, in each case, on a
consolidated basis for such Person and its Restricted Subsidiaries in
accordance with GAAP,


 


less


 


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


 


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


 


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


 


and in the case of a Restricted Subsidiary that is not
a Wholly Owned Restricted Subsidiary, the determination of the percentage of
the Operating Cash Flow of such Restricted Subsidiary that is to be included in
the calculation of the Company’s Operating Cash Flow Ratio shall be made on a
pro forma basis on the assumption that the percentage of the Company’s common
equity interest in such Restricted Subsidiary throughout the applicable
Reference Period was equivalent to its common equity interest on the date of
the determination.


 


“Operating Cash Flow
Ratio” 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 Person
on the Transaction Date (after giving pro forma effect to the Incurrence of any
Indebtedness on such Transaction Date) divided by


 


9

















 


(2)           the aggregate amount of Operating
Cash Flow of such Person for the applicable Reference Period (determined on a
pro forma basis after giving effect to all dispositions of businesses made by
such Person and its Restricted Subsidiaries from the beginning of the Reference
Period through the Transaction Date as if such dispositions had occurred at the
beginning 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 the
need to calculate the Operating Cash Flow Ratio will be assumed to have
occurred (on a pro forma basis) on the first day of the Reference Period;


 


(B)           the Incurrence of any Indebtedness
during the Reference Period or subsequent thereto and on or prior to the
Transaction Date (and the application of the proceeds therefrom to the extent
used to retire Indebtedness) will be assumed to have occurred (on a pro forma
basis) on the first day of such Reference Period;


 


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


 


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


 


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


 


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


 


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


 


“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 by
the Trustee or delivered to the Trustee for cancellation;


 


(ii)           Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying 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 or
provision therefor satisfactory to the Trustee has been made; and


 


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


 


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


 


“pari passu,” when used with respect to
the ranking of any Indebtedness of any Person in relation to other Indebtedness
of such Person, means that each such Indebtedness (a)either (i)is not
subordinated in right of payment to any other Indebtedness of such Person or (ii)is
subordinate in right of payment to the same Indebtedness of such Person as is
the other and is so


 


10

















 


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


 


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


 


“Payment Blockage
Period” has the meaning specified in Section 12.03.


 


“Permitted Investments”
means:


 


(1)           Investments in Cash Equivalents;


 


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


 


(3)           Investments in a Person substantially
all of whose assets are of a type generally used in a Wireless Communications
Business (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 or
consolidated with or into the Company or any Restricted Subsidiary or (b)
transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Company or any of its Restricted Subsidiaries;


 


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


 


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


 


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


 


(7)           customary loans or advances made in
the ordinary course of business to officers, directors or employees of the
Company or any of its Restricted Subsidiaries for travel, entertainment, and
moving and other relocation expenses not to exceed $5 million at any one time
outstanding;


 


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


 


(9)           Investments in Wireless Alliance not
exceeding $10 million in the aggregate made after the Issue Date;


 


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


 


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


 


“Predecessor Security”
of any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and 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 as the mutilated,
destroyed, lost or stolen Security.


 


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


 


“Proceeding” has
the meaning specified in Section 12.02.


 


“Public Equity
Offering” means an underwritten public offering of common stock of the
Company pursuant to an effective registration statement filed with the
Commission in accordance with the Securities Act.


 


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


 


11

















 


to time and (2) with respect to the Original Securities
issued after the Issue Date, the purchase agreement relating to the issuance of
such Securities among the Company and the Initial Purchasers, as such agreement
may 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 Capital
Stock” means, with respect to any Person, any and all shares of Capital
Stock other than Redeemable Stock issued by such Person after the date of this
Indenture.


 


“Qualified Capital
Stock Proceeds” means, with respect to any Person,


 


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


 


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


 


“Qualifying Event”
means a Public Equity Offering or one or more Strategic Equity Investments
which 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 or
otherwise is required to be redeemed prior to the final Stated Maturity of the
Securities or is redeemable at the option of the holder thereof at any time
prior to the final Stated Maturity of the Securities; provided that any Capital
Stock that would not constitute Redeemable Stock but for provisions in it
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of a “change of control” occurring prior
to the final Stated Maturity of the Securities shall not constitute Redeemable
Stock if the “Change of Control” provisions applicable to such Capital Stock
are no more favorable to the holders of such Capital Stock than the provisions Section
10.17 and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company’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 for
such redemption by or pursuant to this Indenture.


 


“Redemption Price,”
when used with respect to any Security to be redeemed, means the price at which
it 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 such
Person immediately preceding any date upon which any determination is to be
made pursuant to the terms of the Securities or this Indenture.


 


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


 


“Registration Rights
Agreement” means (1) with respect to the Original Securities issued on the
Issue Date, the Registration Rights Agreement, dated as of January 16, 2002, by
and among the Company and the Initial Purchasers, as such agreement may be
amended from time to time and (2) with respect to Original Securities issued
after the Issue Date, any Registration Rights Agreement among the Company and
the Initial Purchasers providing for the issuance of Exchange Securities in an
Exchange Offer registered on an Exchange Registration Statement and the
registration 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 or
July 1(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.


 


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


 


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


 


12

















 


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


 


“Restricted Global
Security” has the meaning specified in Section 2.01.


 


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


 


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


 


(2)           any payment on account of the
purchase, redemption, retirement or acquisition (including by way of issuing
any Indebtedness or Redeemable Stock in exchange for Qualified Capital Stock)
of (A) any shares of Capital Stock of such Person or any Subsidiary of such
Person 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 of
such Person or any Subsidiary of such Person or any of its Restricted
Subsidiaries, in each case other than pursuant to the cashless exercise of
options to acquire Capital Stock of such Person;


 


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


 


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


 


provided, that the term “Restricted Payment” does
not include the payment of a dividend or other distribution by any Restricted
Subsidiary on shares of its Capital Stock that is paid pro rata to all holders
of such Capital Stock.


 


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


 


“Rule 144” means
Rule144 under the Securities Act (or any successor provision) as it may be
amended from time to time.


 


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


 


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


 


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


 


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


 


“Securities” means
securities designated in the first paragraph of the recitals of the Company and
includes 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 of
Security set forth in Section 2.02 to be placed upon a Rule144A Security or an
Initial Regulation S Security.


 


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


 


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


 


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


 


13

















 


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


 


(2)           Indebtedness of the Company created
pursuant to any vendor financing Incurred for the acquisition, construction or
improvement by the Company or any Restricted Subsidiary of assets in the
Wireless Communications Business,


 


(3)           all other Indebtedness of the Company
for borrowed money referred to in the definition of Indebtedness other than
clauses (4), (6) and (10) thereof (and Clause (9) thereof to the extent
applicable to Indebtedness Incurred under clauses (4) and (6) thereof), whether
Incurred 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 when
such Person is a Restricted Subsidiary of the Company,


 


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


 


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


 


(D)          any Indebtedness which is subordinated
in right of payment to any other Indebtedness of the Company, including without
limitation the Existing Senior Subordinated Notes, the Senior Subordinated
Exchange Debentures, and the Additional Senior Subordinated Exchange
Debentures.


 


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


 


“Senior Payment
Default” means any default in the payment of principal of (or premium, if
any) or interest on any Senior Indebtedness when due, whether at the stated
maturity of any such payment or by declaration of acceleration, call for
redemption or otherwise.


 


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


 


“Shelf Registration
Statement” means a “shelf” registration statement under which resales of
Securities by the holders thereof are registered under the Securities Act
pursuant to a Registration Rights Agreement.


 


“Significant
Subsidiary” means any Restricted Subsidiary of the Company that is a
“significant subsidiary” as defined in Article1-02(w) of Regulation S-X under
the 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 of
such Security or such installment of interest is due and payable.


 


“Strategic Equity
Investment” means an investment in Qualified Stock made by a Strategic
Investor 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 by
virtue of such Investment becomes such an Affiliate) engaged in one or more
Telecommunications Businesses with an equity market capitalization at the time
such Person makes a Strategic Equity Investment in the Company in excess of $1
billion.


 


“Subordinated
Indebtedness” means Indebtedness of the Company that is subordinated in
right of payment to the Securities.


 


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


 


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


 


“Successor Security”
of any particular Security means every Security issued after, and evidencing
all or a portion of the same debt as that evidenced by, such particular
Security; and, for the purposes of this definition, any Security authenticated
and 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 as
the mutilated, destroyed, lost or stolen Security.


 


“Telecommunications
Business” means the business of (1) transmitting, or providing services
relating to the transmission of, voice, video or data through owned or leased
wireline or wireless transmission facilities, (2) creating, developing,
constructing, installing, repairing, maintaining or marketing
communications-related systems, network equipment and facilities, software and
other products, or (3) evaluating, owning, operating, participating in or
pursuing any other business that is primarily related to those identified in
Clauses (1) or (2) above (in the case of this Clause (3), however, in a manner
consistent 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 its
Subsidiaries is engaged on the Issue Date or has entered into agreements to
engage in or to acquire a company to engage in or contemplate engaging in, as
expressly set forth in the Offering Memorandum; provided that the determination of what constitutes a
Telecommunications Business shall be made in good faith by the Company’s Board
of Directors.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed, except as provided in Section 9.05; provided, however, that in the event the Trust
Indenture 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 1939
as so amended.


 


“Trustee” means
the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such
successor Trustee.


 


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


 


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


 


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


 


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


 


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


 


 


(a)           to subscribe for additional Capital
Stock or


 


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


 


(4)           has not guaranteed or otherwise
directly or indirectly provided credit support for any Indebtedness of the
Company that does not constitute Senior Indebtedness.


 


15

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Wireless
Communications Business” means any business substantially related to the
ownership, development, operation or acquisition of wireless communications
services permitted under the Federal Communications Commission’s (the “FCC”)
Commercial Mobile Radio Services rules (and the related provisions of the FCC’s
Public Mobile Services and Personal Communications Services rules), and other
related telecommunications business services.


 


Section 1.02           Compliance Certificates and
Opinions.


 


Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such
certificate 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 be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirement set forth in this Indenture.


 


Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include


 


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


 


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


 


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


 


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


 


Section 1.03           Form of Documents Delivered to
Trustee.


 


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


 


16

















 


more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.


 


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


 


Where any Person is
required 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 Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are received by the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.04.


 


(b)           The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee reasonably deems
sufficient.


 


(c)           The Company may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to 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 by
any 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 the
30th day (or, if later, the date of the most recent list of Holders required to
be 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 such
date (or their duly designated proxies) shall be entitled to give or take, or
vote on, the relevant action.


 


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


 


(e)           Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation 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 other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,


 


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


 


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


 


17

















 


Section 1.06           Notice to Holders; Waiver.


 


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


 


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


 


Section 1.07           Conflict with Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be part of and govern this Indenture, the
provisions of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the provision of this Indenture shall be deemed
to apply.


 


Section 1.08           Effect of Headings and Table of
Contents.


 


The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.


 


Section 1.09           Successors and Assigns.


 


All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.


 


Section 1.10           Separability Clause.


 


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


 


Section 1.11           Benefits of Indenture.


 


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


 


Section 1.12           Governing Law.


 


THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS THAT WOULD INDICATE THE APPLICABILITY OF THE LAWS OF ANY OTHER
JURISDICTION.


 


Section 1.13           Legal Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, Purchase Date or Stated Maturity of any
Security is not a Business Day, then (notwithstanding any other provision of
this 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, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, Redemption Date or Purchase Date, or
at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity, as the case may be if such payment is made on such next
succeeding 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 any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of, or by reason of, those
obligations or their creation. Each Holder of Securities, by accepting a
Security, waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.


 


Section 1.15           Counterparts


 


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


 


ARTICLE II


 


SECURITY FORMS


 


Section 2.01           Forms Generally.


 


The Securities and the
Trustee’s certificates of authentication shall be in substantially the forms
set forth in this ArticleII, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.


 


The definitive Securities
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may
be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.


 


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


 


Section 2.02           Form of Face of Security


 


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


 


THE SECURITIES EVIDENCED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION R UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
APPLICABLE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (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 THE
SECURITIES 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 EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE 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 MEANING
OF REGULATION S, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND;


 


19

















 


PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE
THE 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/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY AND THE TRUSTEE. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES,” AND “U.S. PERSON” HAVE THE RESPECTIVE MEANINGS
GIVEN 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 INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]


 


[If the Security is a Global Security and The Depository
Trust Company is to be the Depositary therefor, then insert — UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, 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 Cellular
Corporation, a corporation duly organized and existing under the laws of
Minnesota (herein called the “Company,” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of ___________ Dollars [if the
Security is a Global Security, then insert — , or such other
principal amount (which, when taken together with the principal amounts of all
other Outstanding Securities, shall not exceed $500,000,000 in the aggregate at
any time) as may be set forth in the records of the Trustee hereinafter
referred to in accordance with the Indenture,] on January 15, 2010.


 


The Company shall pay
interest in cash on the principal amount hereof from January 16, 2002 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of 9 3⁄4% per annum, until the principal amount hereof
is 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 legally
enforceable) 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 (without
regard to any applicable grace periods), if any, until paid. The Company shall
pay Liquidated Damages, if any, in cash as provided in the Registration Rights
Agreement. 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 this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular 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
such Interest Payment Date [if the Security
is an Original Security, then insert  —, provided that any accrued and unpaid interest (including
Liquidated Damages, if any) on this Security upon the issuance of an Exchange
Security in exchange for this Security shall cease to be payable to the Holder
hereof and shall be payable on the next Interest Payment Date for such Exchange
Security to the Holder thereof on the related Regular Record Date]. Any such
interest or Liquidated Damages not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.


 












(1)     Include only for Exchange Securities.


 


20

















 


Payment of the principal
of (and premium, if any) and interest (and Liquidated Damages, if any), on this
Security shall be made at the Corporate Trust Office or at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, New
York City, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the
Company payment of interest or Liquidated Damages, if any, may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register. Notwithstanding the foregoing, if a Holder has
given wire transfer instructions to the Company, the Company shall pay all principal,
interest, premium and Liquidated Damages, if any, on that Holder’s Securities
in accordance with those instructions.


 


Reference is hereby made
to 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 set
forth at this place.


 


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


 


IN WITNESS WHEREOF, the
Company 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 a
duly 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 issued
under an Indenture, dated as of January 16, 2002 (herein called the “Indenture”),
between the Company and Wells Fargo Bank Minnesota, N.A., as Trustee (herein
called the “Trustee,” which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and
delivered.


 


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 with
accrued and unpaid interest and Liquidated Damages, if any, to but excluding
the date fixed for redemption, if redeemed during the 12-month period beginning
January 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 with
accrued interest to but excluding the Redemption Date, but any interest
installment whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.


 


Notwithstanding the
foregoing, at any time prior to January 15, 2005, the Company may redeem up to
35% of the aggregate principal amount of Securities actually issued under the
Indenture (including Additional Securities but without taking into account
Exchange Securities) from the net cash proceeds of a Qualifying Event at a
Redemption Price equal to 109.750% of the aggregate principal amount thereof,
together with accrued and unpaid interest and Liquidated Damages, if any, to
but excluding the Redemption Date; provided,
that at least 65% in aggregate principal amount of Securities issued under the
Indenture (including Additional Securities but without taking into account
Exchange Securities) remains outstanding immediately following such redemption.
Any such redemption must be made within 30days after the related Qualifying
Event.


 












(2)    Include only for Exchange Securities.


 


21

















 


Notice of any optional
redemption of any Securities (or portion thereof) will be given to the Holders
at their addresses appearing in the Security Register not less than 30 nor more
than 60 days prior to the Redemption Date. The notice of redemption shall state
the Redemption Date, the Redemption Price, if less than all the Outstanding
Securities are to be redeemed, principal amounts of the particular Securities
to be redeemed, that on the Redemption Date the Redemption Price will become
due and payable upon each Security to be redeemed and the place or places where
such Securities are to be surrendered for payment of the Redemption Price. If
less than all of the Securities are to be redeemed, the particular Securities
to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee by such method as the Trustee deems fair and appropriate.


 


The Securities do not
have the benefit of any sinking fund obligations.


 


In the event of
redemption or purchase pursuant to an Offer to Purchase of this Security in part
only, a new Security or Securities for the unredeemed or unpurchased portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.


 


The Indebtedness
evidenced by this Security is, to the extent provided in the Indenture, subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.


 


If an Event of Default
shall occur and be continuing, the principal of all the Securities may be
declared or automatically become due and payable in the manner and with the
effect provided in the Indenture.


 


The Indenture provides
that, subject to certain conditions, if (i) certain Net Cash Proceeds are
available to the Company as a result of Asset Sales or (ii) a Change of
Control occurs, the Company shall be required to make an Offer to Purchase for
the Securities.


 


The Indenture contains
provisions for defeasance at any time of (i) the entire indebtedness of
this Security or (ii)certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions
set forth therein.


 


The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.


 


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


 


As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the Corporate Trust Office or at the
office 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 form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.


 


The Securities are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are exchangeable for a
like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.


 


No service charge shall
be made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.


 


Prior to due presentment
of this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


22

















 


Interest on this Security
shall 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 Damages
shall 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 this
Security which are not defined herein but which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. In the event that
any provision in this Security conflicts with any provision in the Indenture,
the provision contained in the Indenture shall control.


 


The Indenture and this
Security shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws that would
indicate the applicability of the laws of any other jurisdiction.


 


23

















 


OPTION OF HOLDER
TO ELECT PURCHASE


Choose
one:


 


If you want to elect to
have this Security purchased in its entirety by the Company pursuant to Section
10.15 or 10.17 of the Indenture, check the box: o


 


If you want to elect to
have only a part of this Security purchased by the Company pursuant to Section
10.15 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 of
Authentication.


 


This is one of the
Securities 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 principal
amount of Securities which may be authenticated and delivered under this
Indenture is limited to $500,000,000, except for Exchange Securities and
Securities authenticated and delivered upon registration of transfer of, or in
exchange 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 to
Section 10.15 or 10.17.


 


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


 


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


 


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


 


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


 


24

















 


The Original Securities shall be known and designated
as the “9 3⁄4% Senior Subordinated Notes due 2010” and the Exchange Securities
shall be known and designated as the “9 3⁄4% Series B Senior Subordinated Notes
due 2010,” in each case, of the Company. Their Stated Maturity shall be
January 15, 2010 and they shall bear interest at the rate of 9 3⁄4% per
annum, from January 16, 2002 or from the most recent Interest Payment Date
to which interest has been paid in cash or duly provided for, as the case may
be, payable semi-annually on January 15, and July 15 commencing on
July 15, 2002, to the Holders of record on the immediately preceding
January 1, and July 1, until the principal thereof is paid or made available
for payment; provided, however, that the Original Securities
shall be subject to the payment of Liquidated Damages as set forth in the
Registration Rights Agreement. The Liquidated Damages so payable, and
punctually paid or duly provided for in respect of any Security, on any
Interest Payment Date shall, as provided in this Indenture and the Registration
Rights Agreement, be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular 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 such
Interest Payment Date. Accrued Liquidated Damages, if any, shall be paid in
cash in arrears semi-annually on January 15 and July 15, in each year and the
amount of accrued Liquidated Damages shall be determined on the basis of the
number of days actually elapsed and computed as provided in Section 3.11.


 


The principal of (and
premium, if any) and interest (and Liquidated Damages, if any), on the
Securities shall be payable at the Corporate Trust Office or at the office or
agency of the Company in the City and State of New York maintained for such
purpose; provided, however, that at the option of the
Company payment of interest and Liquidated Damages, if any, may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register. Notwithstanding the foregoing, if a
Holder has given wire transfer instructions to the Company, the Company shall
pay all principal, interest, premium and Liquidated Damages, if any, on that
Holder’s Securities in accordance with those instructions.


 


The Securities shall be
subject to repurchase by the Company pursuant to an Offer to Purchase as
provided in Sections 10.15 and 10.17.


 


The Securities shall be
redeemable as provided in Article XI.


 


The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
XII.


 


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


 


Section 3.02           Denominations.


 


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


 


Section 3.03             Execution, Authentication, Delivery
and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chief Executive Officer, its President
or one of its Vice Presidents.  The
signature of any of these officers on the Securities may be manual or
facsimile.


 


Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper
Officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.


 


At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities; and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.


 


At any time and from time
to time after the execution and delivery of this Indenture and after the
effectiveness of a registration statement under the Securities Act with respect
thereto, the Company may deliver Exchange Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the authentication
and delivery of such Exchange Securities and a like principal amount of
Original Securities for cancellation in accordance with Section 3.10 of this
Indenture, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. Prior to authenticating such Exchange
Securities, and accepting any additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, if
requested, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating in substance


 


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


 


25

















 


(b)           that the issuance of the Exchange
Securities in exchange for Original Securities has been effected in compliance
with the Securities Act.


 


Each Security shall be
dated the date of its authentication.


 


No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.


 


Section 3.04           Temporary Securities.


 


Pending the preparation
of definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.


 


If temporary Securities
are issued, the Company will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon surrender
of the temporary Securities at any office or agency of the Company designated
pursuant to Section 10.02, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.


 


Section 3.05           Global Securities.


 


(a)           Each Global Security authenticated
under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes
of this Indenture.


 


(b)           Notwithstanding any other provision
in this Indenture, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) has ceased to be a clearing agency
registered as such under the Exchange Act, (ii) there shall have occurred
and be continuing a Default or Event of Default with respect to such Global
Security, (iii) the Company executes and delivers to the Trustee a Company
Order stating that it elects to cause the issuance of the Securities in
certificated form and that all Global Securities shall be exchanged in whole
for Securities that are not Global Securities (in which case such exchange
shall be effected by the Trustee) or (iv) pursuant to the following
sentence. All or any portion of a Global Security may be exchanged for a
Security that has a like aggregate principal amount and is not a Global
Security, upon 20 days’ prior written request made by the Depositary or its
authorized representative to the Trustee.


 


(c)           If any Global Security is to be
exchanged for other Securities or canceled in whole, it shall be surrendered by
or on behalf of the Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancellation as provided in this Article III. If any
Global Security is to be exchanged for other Securities or canceled in part, or
if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security
shall be so surrendered for exchange or cancellation as provided in this
Article III or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other Security to be
exchanged for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Trustee, as Security
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security, the Trustee shall, subject to Section 3.05(b) and as
otherwise provided in this Article III, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion thereof) to or
upon the order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of the Trustee in
connection with the occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the Trustee a
reasonable 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 of
the Depositary or its authorized representative which is given or made pursuant
to this Article III if such order, direction or request is given or made in
accordance with the Applicable Procedures.


 


(d)           Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global 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 the
form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a
nominee thereof.


 


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


 


Section 3.06           Registration; Registration of
Transfer and


Exchange Generally;
Certain Transfers and 


Exchanges; Securities Act
Legends.


 


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


 


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


 


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


 


All Securities issued
upon any registration of transfer or exchange of Securities shall be the valid
Obligations of the Company, evidencing the same debt, and (except for the
differences between Original Securities and Exchange Securities provided for
herein) entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.


 


Every Security presented
or surrendered for registration of transfer or for exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.


 


No service charge shall
be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
3.04, 3.05, 3.06, 9.06, 10.15, 10.17 or 11.08 not involving any transfer.


 


The Company shall not be
required (i) to issue, register the transfer of or exchange any Security during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities selected for redemption under
Section 11.04 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part.


 


The provisions of the
“Operating Procedures of the Euroclear System,” the “Terms and Conditions
Governing Use of Euroclear,” the “General Terms and Conditions of Clearstream
Banking” and the “Customer Handbook” of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Global Notes that are
held 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 Global
Security of the kinds specified in this Section 3.06(b) shall be made only
in accordance with this Section 3.06(b).


 


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


 


27

















 


(A)          Beneficial
interests in the Restricted Global Security may be exchanged for beneficial
interests in the Regulation S Global Security and vice versa only in connection
with a transfer of such interest. Such transfers are subject to compliance with
the certification requirements described below.


 


(B)           A
beneficial interest in the Restricted Global Security may be transferred to a
Person who takes delivery in the form of an interest in the Regulation S Global
Security, whether before or after the expiration of the Distribution Compliance
Period, only upon receipt by the Trustee of a written certification on behalf
of the transferor to the effect that such transfer is being made in accordance
with Rule904 of Regulation S or (if available) Rule144 under the Securities Act
and that, if such transfer occurs prior to the expiration of the Distribution
Compliance Period, the interest transferred will be held immediately thereafter
through Euroclear or Clearstream.


 


(C)           Prior
to the expiration of the Distribution Compliance Period, a beneficial interest
in the Regulation S Global Security may be transferred to a person who takes
delivery in the form of an interest in the Restricted Global Security only if
such transfer is made pursuant to Rule 144A and the transferor first delivers
to the Trustee a written certification on behalf of the transferor to the
effect that such transfer is being made to a person who the transferor
reasonably believes is a qualified institutional buyer acquiring for its own
account or the account of a qualified institutional buyer in a transaction
complying with Rule144A and any applicable securities laws of the states of the
United States and other jurisdictions. After the expiration of the Distribution
Compliance Period, this certification requirement shall no longer apply to such
transfers.


 


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


 


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


 


(ii)           Exchanges of Global Securities for
Certificated Securities. A beneficial interest in a Global Security
may not be exchanged for a Security in certificated form except as provided in
Section 3.05(b). Any certificated Security issued in exchange for an interest
in a Global Security shall bear the legend restricting transfers that is borne
by such Global Security. Any such exchange shall be effected only through the
DWAC System, and an appropriate adjustment shall be made in the records of the
Security Register to reflect a decrease in the principal amount of the relevant
Global Security.


 


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


 


(i)            subject to the following Clauses of
this 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 shall
bear the Securities Act Legend borne by such Global Security while represented
thereby;


 


(ii)           subject to the following Clauses of
this Section 3.06(c), a new Security which is not a Global Security and is
issued in exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Security;


 


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


 


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


 


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


 


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


 


28

















 


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


 


(D)          in
the case of a transfer of a Security or beneficial interest therein, (1) the
transferor certifies in writing to the Security Registrar that (I) the
restrictions on transfer contained in the Securities Act Legend are not
required to maintain compliance with the Securities Act, (II) such transfer is
being 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) such
transfer is in compliance with all applicable State securities laws, and (2) if
the Security Registrar so requests (or if required by any Applicable
Procedures), the Security Registrar has received an Opinion of Counsel in form
reasonably acceptable to the Security Registrar that such transfer is in
compliance with the Securities Act, and the restrictions on transfer contained
in the Securities Act Legend are not required to maintain compliance with the
Securities Act; or


 


(E)           in
the 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 the
Security Registrar that (I) the restrictions on transfer contained in the
Securities Act Legend are not required to maintain compliance with the
Securities Act, (II) the Security (or beneficial interest therein) being
received in the exchange by such owner is being acquired for such owner’s own
account without transfer, (III) such exchange is being effected in compliance
with the Securities Act and with all transfer restrictions applicable to the
Security (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 Applicable
Procedures), the Security Registrar has received an Opinion of Counsel in form
reasonably acceptable to the Security Registrar that such transfer is in
compliance with the Securities Act, and the restrictions on transfer contained
in the Securities Act Legend are not required to maintain compliance with the
Securities Act; and


 


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


 


Section 3.07             Mutilated, Destroyed, Lost and Stolen
Securities.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 3.08           Payment of Interest; Interest
Rights Preserved.


 


Interest or Liquidated
Damages on any Security that are payable, and are punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest or Liquidated
Damages.


 


29

















 


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


 


(a)           The Company may elect to make payment
of any Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on a date (a “Special Record Date”) for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company
of 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 the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (b).


 


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


 


Subject to the foregoing
provisions of this Section, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest or Liquidated Damages, if any, accrued and
unpaid, and to accrue interest and Liquidated Damages, if any, which were
carried by such other Security.


 


Section 3.09           Persons Deemed Owners.


 


Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.08) interest (and Liquidated Damages, if any), on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.


 


Section 3.10           Cancellation.


 


All Securities
surrendered for payment, redemption, registration of transfer or exchange or
for 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 the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 3.10, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
(subject to the record-retention requirements of the Exchange Act) be disposed
of as directed by a Company Order.


 


Section 3.11           Computation of Interest.


 


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


 


30

















 


ARTICLE IV


 


SATISFACTION AND
DISCHARGE


 


Section 4.01           Satisfaction
and Discharge of Indenture.


 


This Indenture shall
cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture (including, but not limited to, Article XII hereof), when


 


(a)           either


 


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


 


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


 


and the Company, in the case of (i) or (ii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest (and Liquidated
Damages, if any), to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;


 


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


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture pursuant to this Article IV, the
obligations of the Company to the Trustee under Section 6.07, the Obligations
of the Trustee to any Authenticating Agent under Section 6.14 and, if money has
been deposited with the Trustee pursuant to subclause (ii) of Clause (a) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.


 


Section 4.02           Application of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest (and
Liquidated Damages, if any), for whose payment such money has been deposited
with 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 the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article XII or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):


 


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


 


31

















 


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


 


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


 


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


 


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


 


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


 


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


 


(h)           the entry by a court having
jurisdiction in the premises of (A) a decree or order for relief in respect of
the Company or any Significant Subsidiary of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law (a “Bankruptcy Law”) or (B) a decree
or order adjudging the Company or any such Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
such Significant Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or any such Significant Subsidiary or
of any substantial part of the property of the Company or any such Significant
Subsidiary, or ordering the winding up or liquidation of the affairs of the
Company or any such Significant Subsidiary, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or


 


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


 


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 and
is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities may
declare 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 accrued
interest and Liquidated Damages, if any, shall become immediately due and
payable. If an Event of Default specified in Section 5.01(h) or (i) occurs, the
principal of (and premium, if any), any accrued interest and Liquidated
Damages, if any, on the Securities then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.


 


32

















 


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


 


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


 


(i)            all Defaulted Interest on all
Securities,


 


(ii)           the principal of (and premium, if
any, on) any Securities which have become due otherwise than by such
declaration of acceleration (including any Securities required to have been
purchased on the Purchase Date pursuant to an Offer to Purchase made by the
Company) and, to the extent that payment of such interest is lawful, interest
thereon at the rate provided by the Securities,


 


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


 


(iv)          all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances 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 due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.


 


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


 


In the
case of any Event of Default occurring by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention
of avoiding payment of the premium that the Company would have had to pay if it
then had elected to redeem the Securities pursuant to the optional redemption
provisions of this Indenture, an equivalent premium will also become and be
immediately due and payable to the extent permitted by law upon the
acceleration of the Securities. If an Event of Default occurs prior to January
15, 2006 by reason of any willful action or inaction taken or not taken by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Securities prior to January 15, 2006, then, upon acceleration
of the Securities, an additional premium shall also become and be immediately
due and payable at an amount, for each of the years beginning January 15 of
each of the years set forth below, as set forth below (expressed as a
percentage 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 and
Suits for Enforcement by Trustee.


 


The Company covenants
that if


 


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


 


(b)           default is made in the payment of the
principal 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 an
Offer to Purchase made by the Company, at the Purchase Date thereof,


 


the Company shall, upon demand of the Trustee, and
subject to Article XII, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal (and 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 Defaulted
Interest at the rate provided by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover


 


33

















 


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


 


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


 


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


 


Section 5.04           Trustee May File Proofs of Claim.


 


In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and, subject to Article XII, to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and Counsel, and any other amounts due the Trustee under Section
6.07.


 


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


 


Section 5.05           Trustee May Enforce Claims Without
Possession of Securities.


 


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


 


Section 5.06           Application of Money Collected.


 


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


 


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


 


SECOND: To the extent
provided in Article XII, to the holders of Senior Indebtedness in accordance
with Article XII;


 


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


 


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


 


34

















 


Section 5.07           Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


it being understood and intended that no one or more
Holders shall have any right in any manner whatever, by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders, or to obtain or to seek to obtain priority or
preference 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 of
all the Holders.


 


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


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any), (subject to Section 3.08) interest and Liquidated
Damages, if any, on such Security on the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on the Redemption Date or, in
the case of an Offer to Purchase made by the Company and required to be
accepted as to such Security, on the Purchase Date) and to institute suit for
the enforcement of any such payment, on or after such respective dates and such
rights shall not be impaired without the consent of such Holder.


 


Section 5.09           Restoration of Rights and
Remedies.


 


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


 


Section 5.10           Rights and Remedies Cumulative.


 


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


 


Section 5.11           Delay or Omission Not Waiver.


 


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


 


35

















 


Section 5.12           Control by Holders.


 


The Holders of a majority
in aggregate principal amount of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, provided that


 


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


 


(b)           the Trustee may take any other action
deemed proper by the Trustee in furtherance of or consistent with, such
direction, and


 


(c)           subject to the provisions of Section
6.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith determines that the action or proceedings so directed might involve the
Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such
direction shall be unduly prejudicial to the interest of holders of the
Securities not joining in the giving of said direction, it being understood
that the Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such holders.


 


Section 5.13           Waiver of Past Defaults.


 


The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities may
on behalf of the Holders of all the Securities waive any past default hereunder
and 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 any
Security (including any Security which is required to have been purchased
pursuant to an Offer to Purchase which has been made by the Company), or


 


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


 


Upon any such waiver,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.


 


Section 5.14           Undertaking for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act. This Section
5.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 5.08 or a suit by the Holders of more than 10% in aggregate principal
amount of the Securities.


 


Section 5.15           Waiver of Stay or Extension Laws.


 


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


 


ARTICLE VI


 


THE TRUSTEE


 


Section 6.01           Certain Duties and
Responsibilities.


 


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


 


36

















 


funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. If a Default or an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.01.


 


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


 


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


 


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


 


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


 


Section 6.02           Notice of Defaults.


 


The Trustee shall give
the Holders notice of any Default hereunder within 90 days after the occurrence
thereof as and to the extent provided by the Trust Indenture Act. Except in the
case of a Default or an Event of Default in payment of principal of (and
premium, if any, on) or interest (or Liquidated Damages, if any), on any
Securities, the Trustee may withhold the notice to the Holders if and so long
as a committee of its trust officers in good faith determines that withholding
such notice is in the interests of the Holders.


 


Section 6.03           Certain Rights of Trustee.


 


Subject to the provisions
of Section 6.01:


 


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


 


(b)           except during the continuance of a
Default or an Event of Default, in the absence of bad faith in its part, the
Trustee may rely and shall be protected in acting or refraining from acting
upon 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 it
to be genuine and to have been signed or presented by the proper party or
parties, provided that the
Trustee shall examine all Officers’ Certificates, opinions and other documents
produced pursuant to the requirements of this Indenture to determine whether or
not they conform to the requirements of this Indenture;


 


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


 


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


 


(e)           before the Trustee acts or refrains
from acting, the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;


 


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


 


37

















 


(g)           the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document unless requested to do so by the
Holders of not less than a 10% of the aggregate principal amount of the
Securities then Outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company;


 


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


 


(i)             the Trustee shall not be required
to give any bond or surety in respect of the performance of its powers and
duties hereunder;


 


(j)            the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenants,
conditions or agreements on the part of the Company, except as otherwise
provided herein, but the Trustee may require of the Company full information
and advice as to the performance of the covenants, conditions and agreements
contained herein and shall be entitled in connection herewith to examine the
books, records and premises of the Company; and


 


(k)           except for (i)a default under
Sections 5.01(a), (b) or (c) hereof, or (ii)any other Default or Event of
Default of which the Trustee has “actual knowledge” the Trustee shall not be
deemed to have notice of any Default or Event of Default unless specifically
notified in writing of such Default or Event of Default. As used herein, the
term “actual knowledge” means the actual fact or statement of knowing, without
any duty to make any investigation with regard thereto.


 


Section 6.04           Not Responsible for Recitals or
Issuance of Securities.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.


 


Section 6.05           May Hold Securities.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.


 


Section 6.06           Money Held in Trust.


 


Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money 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 to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);


 


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


 


(c)           to indemnify the Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of 


 


38

















 


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


 


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


 


Section 6.08           Disqualification; Conflicting
Interests.


 


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


 


Section 6.09           Corporate Trustee Required;
Eligibility.


 


There shall at all times
be a Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust 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 a
bank holding company system, the related bank holding company shall have) a
combined capital and surplus of at least $100.0million and its Corporate Trust
Office in New York City or Minneapolis. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising 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 its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee ceases to be eligible in
accordance with the provisions of this Section 6.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VI.


 


Section 6.10           Resignation and Removal;
Appointment of Successor.


 


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


 


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


 


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


 


(d)           If at any time:


 


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


 


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


 


(iii)          the Trustee becomes incapable of
acting or is adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property is appointed or any public officer takes charge or control of
the 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 Board
Resolution may remove the Trustee, or (B)subject to Section 5.14, any Holder
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 of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.


 


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


 


39

















 


of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee has been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder 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 of
competent jurisdiction for the appointment of a successor Trustee.


 


(f)            The Company shall give notice of
each resignation and each removal of the Trustee and each appointment of a
successor Trustee to all Holders in the manner provided in Section 1.06. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.


 


Section 6.11           Acceptance of Appointment by
Successor.


 


Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.


 


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


 


Section 6.12             Merger, Conversion, Consolidation or
Succession to Business.


 


Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation 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 of
any of the parties hereto. In case any Securities have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.


 


Section 6.13           Preferential Collection of Claims
Against Company.


 


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


 


Section 6.14           Appointment of Authenticating
Agent.


 


The Trustee may appoint
an Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption or pursuant to Section
3.07, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having (or in the case of a corporation included in a
bank holding company system, the related bank holding company having) a
combined capital and surplus of not less than $100.0million and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent ceases to be eligible in accordance with the provisions
of this Section, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section 6.14.


 


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


 


40

















 


or any corporation succeeding to the Corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.


 


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


 


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


 


If an appointment is made
pursuant to this Section 6.14, the Securities may have endorsed thereon, in
addition to the Trustee’s certificate of authentication, an alternative
certificate of authentication in the following form:


 


This is one of the
Securities 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 AND
REPORTS 


BY TRUSTEE AND
COMPANY


 


Section 7.01           Company to Furnish Trustee


Names and Addresses of
Holders.


 


The Company shall furnish
or cause to be furnished to the Trustee


 


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


 


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


 


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


 


Section 7.02           Preservation of Information;
Communications to Holders.


 


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


 


41

















 


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


 


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


 


Section 7.03           Reports by Trustee.


 


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


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


 


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


 


Section 7.04           Reports by Company.


 


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


 


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


 


(i)            furnish to the Holders and the
Trustee


 


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


 


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


 


(ii)           file a copy of all such information
and reports with the Commission for public availability within the time periods
specified in the Commission’s rules and regulations, unless the Commission does
not accept such filings, and make such information and reports available to
securities analysts and prospective investors upon request.


 


(c)           If the Company at any time is not
subject to the reporting requirements of Section 13 or Section 15(d) of the
Exchange Act (or any successor provisions) at any time while any Security
constitutes a “restricted security” within the meaning of Rule 144, the Company
shall take all actions necessary to permit resales of the Original Securities
(or any Successor Securities) to be made pursuant to Rule 144A, including
furnishing to any holder of such a Security (or a beneficial interest therein),
or to any prospective purchaser designated by such holder, upon the request of
such holder, such financial and other information as may be required to be
delivered under paragraph (d)(4) of Rule 144A to permit such resales and such
information that would be required if the Company were subject to the
informational 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 on
Certain Terms.


 


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


 


(a)           immediately after giving effect to
such transaction and treating any Indebtedness Incurred by the Company or a
Restricted Subsidiary as a result of such transaction as having been Incurred
by 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 surviving
entity or (ii) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by transfer, conveyance, sale,
lease or other disposition all or substantially all of the properties and
assets of the Company as an entirety (a “Successor Company”) is a
corporation that is organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and, by an
indenture supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, expressly assumes the due and punctual payment of
the principal of (and premium, if any) and interest on all the Securities and
the performance of every covenant of this Indenture on the part of the Company
to be performed or observed;


 


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


 


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


 


(e)           the Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer, lease or disposition and, if
a supplemental indenture is required in connection with such transaction, such
supplemental indenture, complies with this Article VIII and that all conditions
precedent herein provided for relating to such transaction have been complied
with, and, with respect to such Officers’ Certificate, setting forth the manner
of determination of the Company’s (or the Successor Company’s, as the case may
be) Consolidated Net Worth in accordance with Clause (c) of this Section 8.01
and ability to Incur Indebtedness in accordance with Clause (d) of this Section
8.01, except as provided below.


 


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


 


Section 8.02           Successor Substituted.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
transfer, conveyance, sale, lease or other disposition of all or substantially
all of the properties and assets of the Company as an entirety in accordance
with Section 8.01, the successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


43

















 


ARTICLE IX


 


SUPPLEMENTAL
INDENTURES


 


Section 9.01           Supplemental Indentures Without
Consent of Holders.


 


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


 


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


 


(b)           to add to the covenants for the
benefit of the Holders, to add guarantors of the Company’s obligations under
the Securities and this Indenture or to surrender any right or power herein
conferred upon the Company; or


 


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


 


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


 


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


 


Section 9.02           Supplemental Indentures with
Consent of Holders.


 


With the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided,
however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,


 


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


 


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


 


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


 


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


 


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


 


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


 


(g)           modify the provisions in this
Indenture relating to the subordination of the Securities in a manner adverse
to the Holders of the Securities,


 


44

















 


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


 


(i)            modify any of the provisions of
Section 10.10.


 


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


 


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


 


Section 9.03           Execution of Supplemental
Indentures.


 


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


 


Section 9.04           Effect of Supplemental Indentures.


 


Upon the execution of any
supplemental indenture under this Article IX, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby. No
such supplemental indenture shall directly or indirectly modify the provisions
of Article XII in any manner which might terminate or impair the rights of the
Senior Indebtedness pursuant to such subordination provisions without prior
written consent of all of the holders of Senior Indebtedness.


 


Section 9.05           Conformity with Trust Indenture
Act.


 


Every supplemental
indenture executed pursuant to this Article IX shall conform to the
requirements of the Trust Indenture Act.


 


Section 9.06           Reference in Securities to
Supplemental Indentures.


 


Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article IX may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.


 


Section 9.07           Notice of Supplemental Indenture.


 


Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to Section 9.02, the Company shall transmit to the Holders a notice setting
forth the substance of such supplemental indenture.


 


ARTICLE X


 


COVENANTS


 


Section 10.01           Payment of Principal, Premium and
Interest.


 


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


 


The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in
excess of the then applicable interest rate on the Securities, to the extent
lawful. 


 


45

















 


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


 


Section 10.02         Maintenance of Office or Agency.


 


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


 


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


 


Section 10.03         Money for Security Payments to be
Held in Trust.


 


If the Company at any
time acts as its own Paying Agent, it shall, on or before each due date of the
principal 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 the
Persons entitled thereto a sum sufficient to pay such amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and shall promptly notify the Trustee of its action or failure
so to act. The Company hereby appoints the Trustee as the Paying Agent as of
the Issue Date.


 


Whenever the Company has
one or more Paying Agents, other than the Company, it shall, prior to each due
date of the principal of (and premium, if any), or interest (and Liquidated
Damages, if any) on any Securities, deposit to such Paying Agent a sum
sufficient to pay such amounts so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium, interest or
Liquidated Damages, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of its action or failure so to act.


 


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


 


(a)           hold all sums held by it for the
payment of the principal of (or premium, if any) or interest (or Liquidated
Damages, if any) on Securities in trust for the benefit of the Persons entitled
thereto until such sums are paid to such Persons or otherwise disposed of as
herein provided;


 


(b)           give the Trustee prompt written
notice 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 of
any such default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.


 


The Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.


 


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


 


46

















 


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


 


Section 10.04         Existence.


 


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


 


Section 10.05         Maintenance of Properties.


 


The Company shall cause
all properties used or useful in the conduct of its business or the business of
any Restricted Subsidiary of the Company to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, as determined by the Board of
Directors of the Company in good faith, desirable in the conduct of its
business or the business of any such Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.


 


Section 10.06         Payment of Taxes and Other Claims.


 


The Company shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (l)all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Restricted Subsidiaries or upon the
income, profits or property of the Company or any of its Restricted
Subsidiaries, 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 any
of its Restricted Subsidiaries; provided,
however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.


 


Section 10.07         Maintenance of Insurance.


 


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


 


Section 10.08         Limitation on Consolidated
Indebtedness.


 


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 or
Event of Default immediately prior and subsequent thereto, and (b)after giving
effect thereto, the Company’s Operating Cash Flow Ratio on a pro forma basis
(calculated on the assumption that such Indebtedness had been Incurred on the
first day of the applicable Reference Period), would have been less than 7.5 to
1.0. Notwithstanding the above, the Company and its Restricted Subsidiaries may
Incur the following Indebtedness if there exists no Default or Event of Default
immediately prior and subsequent to such Incurrence (other than the Indebtedness
evidenced by the Senior Subordinated Exchange Debentures and the Additional
Senior Subordinated Exchange Debentures), without regard to the above
limitations:


 


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


 


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


 


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


 


47

















 


(4)           Indebtedness of the Company or any
Restricted Subsidiary to renew, extend, refinance or refund any Indebtedness of
the Company or such Restricted Subsidiary outstanding or committed on the date
of renewal, extension, refinancing or refunding Incurred pursuant to clauses
(1), (4), (6), (8) or (12) of this Section 10.08 or pursuant to the first
paragraph 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 aggregate
liquidation value) of outstanding or committed Indebtedness so renewed,
extended, refinanced or refunded plus financing fees and other expenses
associated therewith; and provided
further, however, that (a) such renewing,
extending, refinancing or refunding Indebtedness shall not have a final
maturity and shall not have any other mandatory repayments or redemptions prior
to or in amounts greater than those of the Indebtedness being renewed,
extended, refinanced or refunded, (b) in the case of any refinancing or
refunding of Indebtedness that ranks pari
passu in right of payment with the Securities, the refinancing or
refunding Indebtedness ranks in right of payment pari passu with or subordinated to, the Securities and, in
the case of any refinancing or refunding of Indebtedness subordinated to the
Securities (or Preferred Stock that constitutes Indebtedness), the refinancing
or refunding Indebtedness ranks subordinate in right of payment to the
Securities to substantially the same extent as, or to a greater extent than,
the Indebtedness refinanced or refunded and (c) no Restricted Subsidiary of the
Company shall be permitted to refinance any Indebtedness of the Company (for
the avoidance of doubt, it is understood that a refinancing or refunding of
Indebtedness under the Credit Facility incurred under the first paragraph of
this Section 10.08, or Clause (4), (6), or (12) of this Section 10.08, shall
include additional borrowings under the same Credit Facility to refinance or
refund such Indebtedness so long as the conditions set forth in this Clause (4)
are met);


 


(5)           Indebtedness Incurred by the Company
or any of its Restricted Subsidiaries under Hedge Agreements to protect the
Company or any of its Restricted Subsidiaries from interest or foreign currency
risk on Indebtedness permitted to be Incurred by this Indenture, provided, that the notional principal
amount of any such Hedge Agreements does not exceed the principal amount of
Indebtedness to which such Hedge Agreements relate, and such Hedge Agreements
are not for speculative purposes;


 


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


 


(7)           any guarantee by any Restricted
Subsidiary of any Indebtedness Incurred under the Credit Facility in compliance
with this covenant;


 


(8)           Acquired Indebtedness, provided that on a pro forma basis
after giving effect to the Incurrence of such Indebtedness, the Company shall
be able to Incur $1.00 of additional Indebtedness pursuant to the provisions
described under the first paragraph of this Section 10.08;


 


(9)           Indebtedness in respect of
performance, surety or appeal bonds provided in the ordinary course of
business;


 


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


 


(11)         Indebtedness of any Restricted
Subsidiary of the Company which does not exceed $50 million in the aggregate
for all such Restricted Subsidiaries at any time outstanding under this Clause
(11) (excluding any Intercompany Indebtedness or Acquired Indebtedness that is
otherwise permitted to be Incurred under this Indenture); provided that a Restricted Subsidiary
may not Incur any Indebtedness under this Clause (11) unless, on a pro forma
basis, the Company’s Operating Cash Flow Ratio is less than 7.0 to 1.0 and the
Adjusted Operating Cash Flow Ratio of such Restricted Subsidiary is less than
5.0 to 1.0; and


 


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


 


For the avoidance of
doubt, all Indebtedness outstanding under the revolving portion of the Credit
Facility 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 Credit
Facility 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 of
Restricted Subsidiaries.


 


The Company shall not permit
any Restricted Subsidiary of the Company to create or issue any Preferred Stock
except:


 


48

















 


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


 


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


 


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


 


(d)           Preferred Stock issued by a
Restricted Subsidiary the proceeds of which are used to refinance outstanding
Preferred Stock of a Restricted Subsidiary, provided
that (i)the liquidation value of the refinancing Preferred Stock does not
exceed the liquidation value so refinanced plus financing fees and other
expenses associated with such refinancing and (ii)such refinancing Preferred
Stock 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 not
Incur any Indebtedness that is subordinate in right of payment to any other
Indebtedness of the Company unless the Indebtedness so Incurred is either pari passu with or subordinate in right of
payment 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, directly
or indirectly, any Restricted Payment, unless after giving effect to the
Restricted Payment:


 


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


 


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


 


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


 


(i)            Cumulative Operating Cash Flow less
1.60 times Cumulative Interest Expense,


 


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


 


(iii)          100% of the cash proceeds received
from an Unrestricted Subsidiary to the extent of Investments (other than
Permitted Investments) made in such Unrestricted Subsidiary since the Issue
Date.


 


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


 


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


 


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


 


(3)           (a) the issuance of the Senior
Subordinated Exchange Debentures in exchange for the Exchangeable Preferred
Stock in accordance with the terms of the Exchangeable Preferred Stock in
effect on the Issue Date, provided,
that after giving effect thereto, the Company’s Operating Cash Flow Ratio on a
pro forma basis (calculated on the assumption that such Indebtedness had been
Incurred on the first day of the applicable Reference Period), would have been
less than 6.5 to 1.0, or (b) the issuance of Additional Senior Subordinated
Exchange Debentures in exchange for the Junior Exchangeable Preferred Stock in
accordance with the terms of the Junior Exchangeable Preferred Stock in effect
on the Issue Date, provided
that after giving effect thereto, the Company’s Operating Cash Flow Ratio on a
pro forma basis (calculated on the assumption that such Indebtedness had been
Incurred on the first day of the applicable Reference Period), would have been
less than 6.5 to 1.0.


 


49

















 


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


 


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


 


(6)           the repurchase, redemption or other
retirement for value of any Qualified Capital Stock of the Company held by any
former member of the Company’s management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the Issue
Date, provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Qualified Capital Stock shall not exceed $1.0 million in any 12-month period
and shall not exceed $5.0 million in the aggregate since the Issue Date,


 


(7)           the payment of dividends on either
the Senior Exchangeable Preferred Stock after May 15, 2003 or on the Junior
Exchangeable Preferred Stock after February 15, 2005, which dividends do not
exceed $30.0 million in the aggregate since the Issue Date, provided that in no event may any such
payment be made unless the Operating Cash Flow Ratio of the Company, calculated
on the basis that the Preferred Stock on which such dividends are proposed to
be paid constitutes Indebtedness, is less than 7.0 to 1.0, or


 


(8)           Restricted Payments, in addition to
Restricted Payments permitted pursuant to Clauses (1) through (7) of this
paragraph, 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 of
the Qualified Capital Stock referred to in such Clause constitute Qualified
Capital Stock Proceeds), (6), (7), and (8) of this paragraph shall constitute
Restricted Payments for the calculation under the first paragraph of this
Section 10.11.


 


Section 10.12                          Limitations Concerning Distributions

and Transfers By Restricted Subsidiaries.


 


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


 


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


 


(b)           make any loans or advances to the
Company or any Restricted Subsidiary or


 


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


 


Notwithstanding the foregoing, the Company may, and
may permit any Restricted Subsidiary to, suffer to exist any such restriction
or prohibition:


 


(1)           pursuant to this Indenture, the
Credit Facility, any other agreement in effect on the Issue Date and listed on
Schedule 10.12 to this Indenture or, if executed and delivered, the Exchange
Indentures, provided that
any such restriction or prohibition in the Exchange Indentures is no more
restrictive than that contained in this Indenture,


 


(2)           pursuant to an agreement relating to
any Indebtedness of such Restricted Subsidiary which was outstanding or
committed prior to the date on which such Restricted Subsidiary became a
Restricted Subsidiary of the Company other than restrictions or prohibitions
adopted in anticipation of becoming a Restricted Subsidiary; provided, that such restriction or
prohibition shall not apply to any property or assets of the Company or any
Restricted Subsidiary other than the property or assets of such Restricted
Subsidiary and its Subsidiaries,


 


(3)           pursuant to an agreement effecting a
renewal, extension, refinancing or refunding of any agreement described in
Clauses (1) and (2) above, provided,
however, that the
provisions contained in such renewal, extension, refinancing or refunding
agreement relating to such restriction or prohibition are no more restrictive
in any material respect than the provisions contained in the agreement which is
the subject thereof,


 


(4)           existing under or by reason of
applicable law,


 


50

















 


(5)           customary provisions restricting
subletting or assignment of any lease governing any leasehold interest of any
Restricted Subsidiary,


 


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


 


(7)           restrictions of the type referred to
in Clause (c) of this Section 10.12 contained in security agreements securing
Indebtedness of a Restricted Subsidiary to the extent that such Liens were
otherwise Incurred in accordance with Section 10.13, and restrict the transfer
of property subject to such agreements, or


 


(8)           customary provisions in joint venture
agreements and other similar agreements entered into in the ordinary course of
business.


 


Section 10.13         Limitations on Liens.


 


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


 


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


 


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


 


The foregoing
restrictions shall not apply to:


 


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


 


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


 


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


 


(4)           (a)Liens on property existing
immediately prior to the time of acquisition thereof (and not Incurred in
anticipation of the financing of such acquisition) and (b)Liens in respect of
Acquired Indebtedness existing at the time of the acquisition of the related
assets by the Company or any of its Restricted Subsidiaries (provided that such Liens do not extend
to any assets of the Company or any of its Restricted Subsidiaries other than
the assets being acquired (and as long as such Liens were not Incurred in
anticipation of the financing of such asset acquisition));


 


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


 


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


 


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


 


Section 10.14         Limitation on Transactions with
Affiliates 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, or
purchase 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 or
Related Person of the Company, other than a Restricted Subsidiary (each of the
foregoing transactions, an “Affiliate Transaction”), unless:


 


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


 


(2)           the Company delivers to the Trustee:


 


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


 


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


 


This Section 10.14 shall not limit, or be applicable
to any agreement in effect on the Issue Date, listed on Schedule 10.14 to this
Indenture, and any amendments, extensions or renewals of any such agreement, so
long as any such amendment, extension or renewal, taken as a whole, is not more
disadvantageous to the Company or to any Restricted Subsidiary as the original
agreement in effect on the Issue Date.


 


Section 10.15         Limitation on Asset Sales and Sales
of Subsidiary Stock.


 


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


 


Notwithstanding the
foregoing paragraph:


 


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


 


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


 


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


 


52

















 


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


 


(5)           the Company and its Restricted
Subsidiaries may (A) sell damaged, worn out or other obsolete property in the
ordinary course of business or other property no longer necessary for the
proper conduct of the business of the Company or any of its Restricted
Subsidiaries or (B) abandon such property if it cannot, through reasonable
efforts, be sold; and


 


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


 


The Company may defer an Asset Sale Offer until the
accumulated 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, the
Company may temporarily reduce revolving credit borrowings or otherwise invest
such Net Cash Proceeds in any manner that is not prohibited by this Indenture.


 


An Asset Sale Offer shall
remain open for 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 “Asset Sale Offer Period”). To the extent that any Senior
Indebtedness of the Company or any Indebtedness of any of its Subsidiaries
requires the Company or that Subsidiary to make an offer similar to an Asset
Sale Offer, the Company and each such Subsidiary may make simultaneous offers,
with the Asset Sale Offer being limited to proceeds not used to repurchase the
Indebtedness of the Company or such Subsidiaries. In addition, the Company
shall not make an asset sale offer for the Existing Senior Subordinated Notes,
the Senior Subordinated Exchange Debentures, and the Additional Senior
Subordinated Exchange Debentures, unless it also makes an Asset Sale Offer for
the Securities. No later than five Business Days after the termination of the
Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Company
shall purchase the principal amount of Securities required to be purchased
pursuant to this Section 10.15 (the “Asset Sale Offer Amount”) at a
purchase price equal to 100% of the principal amount of the Securities plus
accrued and unpaid interest and Liquidated Damages, if any, to but excluding
the date of the purchase or, if less than the Asset Sale Offer Amount has been
tendered, all Securities tendered in response to the Asset Sale Offer.


 


If the Asset Sale
Purchase Date is on or after a Regular Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest will be paid to the
Person in whose name a Security is registered at the close of business on such
Regular Record Date, and no additional interest will be payable to Holders who
tender Securities pursuant to the Asset Sale Offer.


 


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


 


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


 


Section 10.16         Limitation on Activities of the
Company and its Restricted Subsidiaries.


 


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


 


Section 10.17         Change of Control.


 


(a)           Upon the occurrence of a Change in
Control, each Holder of a Security shall have the right to request to have such
Security repurchased by the Company on the terms and conditions set forth in
this Section 10.17 and this Indenture. The Company shall, within 30 days
following the date of the consummation of a transaction resulting in a Change
of Control, mail to each Holder an Offer to Purchase all Outstanding Securities
at a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, to but
excluding the Purchase Date (a “Change of Control Offer”).


 


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The Company or a third
party on its behalf may, but shall not be required to, satisfy the Company’s
obligations under this Section 10.17 by mailing such an Offer to Purchase prior
to, and contingent upon, the anticipated consummation of a transaction
resulting in a Change of Control;
provided that the Company and any such third party shall comply
with all applicable laws and regulations, including Rule 14e-1 under the Exchange
Act, and the Offer to Purchase shall not close unless the transaction resulting
in a Change of Control also occurs. A Change of Control Offer shall remain open
for 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 “Change
of Control Offer Period”). No later than five Business Days after the
termination of the Change of Control Offer Period (the “Change of Control
Purchase Date”), the Company shall purchase all Securities tendered in
response to the Change of Control Offer. Payment for any Securities so
purchased shall be made in the same manner as interest payments are made.


 


If the Change of Control
Purchase Date is on or after a Regular Record Date and on or before the related
Interest 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 at
the close of business on such Regular Record Date, and no additional interest
or Liquidated Damages will be payable to Holders who tender Securities pursuant
to the Change of Control Offer.


 


On or before the Change
of Control Purchase Date, the Company shall, to the extent lawful, accept for
payment all Securities or portions thereof tendered, and shall deliver to the
Trustee an Officers’ Certificate stating that such Securities or portions
thereof were accepted for payment by the Company in accordance with the terms
of this Section 10.17. The Company, the Depositary or the Paying Agent, as the
case may be, shall promptly (but in any case not later than five days after the
Change of Control Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Securities tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue new
Securities, and the Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Securities to such Holder, in a
principal amount equal to any unpurchased portion of the Securities
surrendered. Any Securities not so accepted will be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Change of Control Offer on the Change of Control
Purchase Date


 


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


 


(b)           So long such practice is not contrary
to the then current recommendations of the American Institute of Certified
Public Accountants, the year-end financial statements delivered pursuant to
Section 10.4(a) above shall be accompanied by a written statement of the
Company’s independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that the Company has violated any provisions of Article
VIII or Article X hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.


 


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


 


Section 10.19         Waiver of Certain Covenants.


 


The Company may omit in
any particular instance to comply with any covenant or condition set forth in
Sections 8.01, 10.15 and 10.17, if before the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent expressly waived, and, until such waiver becomes effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant


 


54

















 


or condition shall remain in full force and effect; provided, however, with respect to an Offer to
Purchase as to which an Offer has been mailed, no such waiver may be made or
shall be effective against any Holders tendering Securities pursuant to such
Offer, and the Company may not omit to comply with the terms of such Offer as
to 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 or
cause to be paid any consideration to or for the benefit of any Holder of
Securities for or as an inducement to, any consent, waiver or amendment of any
of the terms or provisions of this Indenture unless such consideration is
offered 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 solicitation
documents 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 extent
applicable, those portions of such other sections in this Indenture which make
reference 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 so
long as, the Securities are rated Investment Grade and no Default or Event of
Default has occurred and is continuing (a “Covenant Suspension”).


 


(b)           In the event the Company’s
obligations under this Indenture have been assumed or fully and unconditionally
guaranteed on a senior subordinated basis by a Person whose senior and
unsecured Indebtedness is rated Investment Grade, Section 7.04(b) shall not be
applicable.


 


In addition to the
foregoing and notwithstanding any other provision of this Indenture, in the
event of a Covenant Suspension, whose duration is not less than six consecutive
months, shall have occurred but terminates because the Securities cease to be
rated Investment Grade then:


 


(1)           All Indebtedness Incurred by the
Company and its Restricted Subsidiaries during the Covenant Suspension that
would not have been permitted to be Incurred pursuant to Section 10.08, had
Section 10.08 been applicable during the Covenant Suspension, shall be deemed
to be “Existing Indebtedness.”


 


(2)           All Liens incurred by the Company and
its Restricted Subsidiaries during the Covenant Suspension that would not have
been permitted to be incurred pursuant to Section 10.13, had Section 10.13 been
applicable during the Covenant Suspension, shall be deemed to be “Existing
Liens.”


 


(3)           All Preferred Stock issued by the
Company’s Restricted Subsidiaries during the Covenant Suspension that would not
have been permitted to be issued pursuant to Section 10.09, had such section
been applicable during the Covenant Suspension, shall be deemed to be “Existing
Preferred Stock.”


 


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


 


ARTICLE XI


 


REDEMPTION OF
SECURITIES


 


Section 11.01         Right of Redemption.


 


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


 


Section 11.02         Applicability of Article XI.


 


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


 


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Section 11.03         Election to Redeem; Notice to
Trustee.


 


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


 


Section 11.04         Selection by Trustee of Securities
to Be Redeemed.


 


If less than all the
Securities are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities not previously called for redemption, by
prorating, as nearly as may be practicable, the principal amount of Securities
to be redeemed. In any proration pursuant to this Section 11.04, the Trustee
shall make such adjustments, reallocations and eliminations as it shall deem
proper (and in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities are listed) to the end
that the principal amount of Securities so prorated shall be $1,000 or a
multiple thereof, by increasing or decreasing or eliminating the amount which
would be allocable to any Holder on the basis of exact proportion by an amount not
exceeding $1,000.


 


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


 


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


 


Section 11.05         Notice of Redemption.


 


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


 


All notices of redemption
shall state:


 


(1)           the Redemption Date,


 


(2)           the Redemption Price,


 


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


 


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


 


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


 


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


 


Section 11.06         Deposit of Redemption Price.


 


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


 


Section 11.07         Securities Payable on Redemption
Date.


 


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


 


56

















 


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


 


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


 


Section 11.08         Securities Redeemed in Part.


 


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


 


ARTICLE XII


 


SUBORDINATION OF
SECURITIES


 


Section 12.01         Securities Subordinate to Senior
Indebtedness.


 


The Company covenants and
agrees, and each Holder of a Security, by his acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article XII (subject to the provisions of Article IV and Article
XIII), the payment of the principal of (and premium, if any) and interest (and
Liquidated Damages, if any), on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness.


 


Section 12.02         Payment Over of Proceeds Upon
Dissolution, Etc.


 


In the event of (a) any
insolvency 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 or
bankruptcy, or (c) any assignment for the benefit of creditors or any
other marshaling of assets and liabilities of the Company, then and in any such
event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a “Proceeding”) the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Indebtedness, or provision shall
be made for such payment in cash or Cash Equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, before the holders of the
Securities are entitled to receive any payment or distribution of any kind or
character, whether in cash, property or securities, on account of principal of
(or premium, if any) or interest (or Liquidated Damages, if any) on, or other
obligations in respect of, the Securities or other Indebtedness of the Company
that is pari passu or subordinate
in right of payment to the Securities or on account of any purchase or other
acquisition of Securities or such other Indebtedness by the Company or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisition herein referred to, individually and collectively, as a “Securities
Payment”), and to that end the holders of Senior Indebtedness shall be
entitled to receive, for application to the payment thereof, any Securities
Payment which may be payable or deliverable in respect of the Securities in any
such Proceeding.


 


In the event that,
notwithstanding the foregoing provisions of this Section 12.02, the Trustee or
the Holder of any Security shall have received any Securities Payment before
all Senior Indebtedness is paid in full or payment thereof has been provided
for in cash or Cash Equivalents or otherwise in a manner satisfactory to the
holders of Senior Indebtedness, and if such fact shall, at or prior to the time
of such Securities Payment, have been made known to the Trustee by delivery to
the 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 over
or delivered forthwith by the Trustee (if any notice set forth in Section 12.09
has been delivered to the Trustee) or by the Holder to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company (which may be
the Administrative Agent) for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.


 


For purposes of this
Article XII only, the words “any payment or distribution of any kind or
character, whether in cash, property or securities” shall not be deemed to
include a payment or distribution of stock or securities of the Company
provided for by a plan of reorganization or readjustment authorized by an order
or decree of a court of competent jurisdiction in a reorganization proceeding
under any applicable bankruptcy law or of any other corporation provided for by
such plan of reorganization or readjustment which stock or securities are
subordinated in right of payment to all then outstanding Senior Indebtedness to
substantially the same extent as the Securities are so subordinated as provided
in this Article XII. The consolidation of the Company with, or the merger of
the Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article VIII shall


 


57

















 


not be deemed a Proceeding for the purposes of this
Section 12.02 if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer such
properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article VIII.


 


Section 12.03         No Payment When Senior Indebtedness
in Default.


 


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


 


(b)           In the event that any Senior
Nonmonetary Default shall have occurred and be continuing, then, upon the
receipt by the Company and the Trustee of written notice of such Senior
Nonmonetary Default from an Administrative Agent or, if there is no outstanding
Designated Senior Indebtedness, any representative of a holder of Senior
Indebtedness, no Securities Payment shall be made during the period (the “Payment
Blockage Period”) commencing on the date of such receipt of such written
notice and ending on the earlier of (i) the date on which such Senior
Nonmonetary Default is cured or waived or has ceased to exist and any
acceleration of Senior Indebtedness is rescinded or annulled or the Senior
Indebtedness 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 the
Securities during any 360-day period, and there shall be a period of at least
181consecutive days in each 360-day period when no Payment Blockage Period is
in effect. For all purposes of this Section 12.03, no Senior Nonmonetary
Default that was known to the holders of Senior Indebtedness to exist or be
continuing on the date of commencement of any Payment Blockage Period shall be,
or be made, the basis for the commencement of a subsequent Payment Blockage
Period by a representative for the Designated Senior Indebtedness unless such
Senior Nonmonetary Default shall have been cured for a period of not less than
90 consecutive days.


 


Section 12.04         Payment Permitted If No Default.


 


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


 


Section 12.05         Subrogation to Rights of Holders of
Senior Indebtedness.


 


Subject to the payment in
full of all amounts due or to become due on or in respect of Senior
Indebtedness, or the provision for such payment in cash or Cash Equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest (and Liquidated Damages, if
any), on the Securities is paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article XII, and no
payments pursuant to the provisions of this Article XII to the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Securities.


 


Section 12.06         Provisions Solely to Define Relative
Rights.


 


The provisions of this
Article XII are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall
(a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article XII of the holders of Senior Indebtedness, is intended to
rank equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of (and premium, if any), and interest
and Liquidated Damages, if any, on the Securities as and when the same become
due and payable in accordance with their terms; or (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of
the Company other than the holders of Senior Indebtedness; or (c) prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article XII of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.


 


58

















 


Section 12.07         Trustee
to Effectuate Subordination.


 


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


 


Section 12.08         No Waiver of Subordination
Provisions.


 


No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.


 


Without in any way
limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to
the Holders of the Securities and without impairing or releasing the
subordination provided in this Article XII or the obligations hereunder of the
Holders of the Securities to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.


 


Section 12.09         Notice to Trustee.


 


The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article XII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, representative or Administrative Agent
therefor; 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 to
assume that no such facts exist; provided,
however, that if the
Trustee has not received the notice provided for in this Section 12.09 at least
five Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment
of the principal of or premium, interest or Liquidated Damages on, any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within five
Business Days prior to such date.


 


Subject to the provisions
of Section 6.01, the Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or Administrative Agent therefor) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee or
Administrative Agent therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XII, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article XII, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.


 


Section 12.10         Reliance on Judicial Order or
Certificate of Liquidating Agent.


 


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


 


Section 12.11         Trustee Not Fiduciary for Holders of
Senior Indebtedness.


 


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


 


59

















 


Holders of Securities or to the Company or to any
other Person cash, property or securities to which any holders of Senior
Indebtedness 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 its
individual capacity shall be entitled to all the rights set forth in this
Article XII with respect to any Senior Indebtedness which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.


 


Nothing in this Article
XII shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.07.


 


Section 12.13         Article XII Applicable to Paying
Agents.


 


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


 


Section 12.14         Defeasance of this Article XII.


 


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


 


ARTICLE XIII


 


DEFEASANCE AND
COVENANT DEFEASANCE


 


Section 13.01                          Company’s Option to Effect 

Defeasance or Covenant Defeasance.


 


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


 


Section 13.02         Defeasance and Discharge.


 


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


 


Section 13.03         Covenant Defeasance.


 


Upon the Company’s
exercise of the option provided in Section 13.01 applicable to this Section,
(i) the Company shall be released from its obligations under Sections
10.05 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) (with
respect 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 of
Article XII hereof shall cease to be effective on and after the date all
conditions set forth below are satisfied (hereinafter, “covenant defeasance”).
For this purpose, such covenant defeasance means that the Company may omit to
comply with and shall have 


 


60

















 


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


 


Section 13.04         Conditions to Defeasance or Covenant
Defeasance.


 


The following shall be
the conditions to application of either Section 13.02 or Section 13.03 to the
then Outstanding Securities:


 


(a)           The Company shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.09 who shall agree to comply with the
provisions of this Article XIII applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance 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 nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any,) and each installment of
interest, if any, on the Outstanding Securities on the Stated Maturity of such
principal or installment of interest in accordance with the terms of this
Indenture and of such Securities. For this purpose, “U.S. Government
Obligations” means securities that are (x) direct obligations of the
United States of America for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation 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 of
such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.


 


(b)           In the case of an election under
Section 13.02, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date
of this Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities will not recognize gain
or loss for federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income tax on the same amount, in
the 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 under
Section 13.03, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Securities will not
recognize gain or loss for federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been
the case if such deposit covenant defeasance and discharge had not occurred.


 


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


 


(e)           Such defeasance or covenant
defeasance shall not cause the Trustee to have a conflicting interest as
defined in Section 6.08 and for purposes of the Trust Indenture Act with
respect to any securities of the Company.


 


(f)            No Default or Event of Default shall
have occurred and be continuing on the date of such deposit or, insofar as
Section 5.01(h) is concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).


 


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


 


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


 


61

















 


(i)            Such defeasance or covenant
defeasance shall not result in the trust arising from such deposit constituting
an investment company as defined in the Investment Company Act of 1940, as
amended, or such trust shall be qualified under such act or exempt from
regulation thereunder.


 


Section 13.05                          Deposited Money and U.S. Government Obligations

to be Held in Trust; Other Miscellaneous Provisions.


 


Subject to the provisions
of the last paragraph of Section 10.03, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee — collectively, for purposes of this Section 13.05,
the “Trustee”) pursuant to Section 13.04 in respect of the Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the 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 be
segregated from other funds except to the extent required by law. Money so held
in trust shall not be subject to the provisions of Article XII.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
13.04 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the Outstanding Securities.


 


Anything in this Article
XIII to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 13.04 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.


 


Section 13.06         Reinstatement.


 


If the Trustee or the
Paying Agent is unable to apply any money in accordance with Section 13.02 or
13.03 by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article XIII
until such time as the Trustee or Paying Agent is permitted to apply all such
money 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) or
Liquidated Damages, if any, or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held
by the Trustee or the Paying Agent.


 


62

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed, all as of the
day 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


 


Existing
Indebtedness


 


	
  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.

  



 

















 


Schedule
10.12


 


Limitations
Concerning Distributions and


Transfers
By Restricted Subsidiaries


 


None


 

















 


Schedule 10.08


Schedule
10.14


 


Limitation
on Transactions with Affiliates and Related Persons


 


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


 

















 


Reconciliation and
tie 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

  



 


This
Reconciliation and tie shall not, for any purpose, be deemed to be a part of
the Indenture.


 


A-1