**EXHIBIT10.2**

 

 

UBIQUITEL OPERATINGCOMPANY

 

UBIQUITEL INC. ASGUARANTORAND EACH OF THE OTHER PARTIESTHAT BECOME GUARANTORS HERETO

 

97/8%SENIOR NOTES DUE 2011

 

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INDENTURE

 

Dated as of February 23,2004

 

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The Bank of New York

 

Trustee

 

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CROSS-REFERENCE TABLE*

 

| **Trust Indenture  Act Section** |                | **Indenture  Section** |              |
|----------------------------------|---------------------|------------------------|-------------------|
| 310                              | (a)(1)              |                   | 7.10              |   |
|                             | (a)(2)              |                   | 7.10              |   |
|                             | (a)(3)              |                   | N.A.              |   |
|                             | (a)(4)              |                   | N.A.              |   |
|                             | (a)(5)              |                   | 7.10              |   |
|                             | (b)                 |                   | 7.10              |   |
|                             | (c)                 |                   | N.A.              |   |
| 311                              | (a)                 |                   | 7.11              |   |
|                             | (b)                 |                   | 7.11              |   |
|                             | (c)                 |                   | N.A.              |   |
| 312                              | (a)                 |                   | 2.05              |   |
|                             | (b)                 |                   | 12.03             |   |
|                             | (c)                 |                   | 12.03             |   |
| 313                              | (a)                 |                   | 7.06              |   |
|                             | (b)(1)              |                   | N.A.              |   |
|                             | (b)(2)              |                   | 7.06; 7.07        |   |
|                             | (c)                 |                   | 7.06; 12.02       |   |
|                             | (d)                 |                   | 7.06              |   |
| 314                              | (a)                 |                   | 4.03;12.02; 12.05 |   |
|                             | (b)                 |                   | N.A               |   |
|                             | (c)(1)              |                   | 12.04             |   |
|                             | (c)(2)              |                   | 12.04             |   |
|                             | (c)(3)              |                   | N.A.              |   |
|                             | (d)                 |                   | N.A.              |   |
|                             | (e)                 |                   | 12.05             |   |
|                             | (f)                 |                   | N.A.              |   |
| 315                              | (a)                 |                   | 7.01              |   |
|                             | (b)                 |                   | 7.05; 12.02       |   |
|                             | (c)                 |                   | 7.01              |   |
|                             | (d)                 |                   | 7.01              |   |
|                             | (e)                 |                   | 6.11              |   |
| 316                              | (a) (last sentence) |                   | 2.09              |   |
|                             | (a)(1)(A)           |                   | 6.05              |   |
|                             | (a)(1)(B)           |                   | 6.04              |   |
|                             | (a)(2)              |                   | N.A.              |   |
|                             | (b)                 |                   | 6.07              |   |
|                             | (c)                 |                   | 2.12              |   |
| 317                              | (a)(1)              |                   | 6.08              |   |
|                             | (a)(2)              |                   | 6.09              |   |
|                             | (b)                 |                   | 2.04              |   |
| 318                              | (a)                 |                   | 12.01             |   |
|                             | (b)                 |                   | N.A.              |   |
|                             | (c)                 |                   | 12.01             |   |

 

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N.A. means not applicable.

*  This Cross Reference Table isnot part of the Indenture.

 

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TABLE OF CONTENTS

 
| **ARTICLE  1**                 |                                                            |
|--------------------------------|-----------------------------------------------------------------|
| DEFINITIONS  AND INCORPORATION |                                                            |
| BY  REFERENCE                  |                                                            |
|                           |                                                            |   |
| Section  1.01                  | Definitions                                                     |   |
| Section 1.02                   | Other Definitions                                               |   |
| Section  1.03                  | Incorporation by Reference of Trust  Indenture Act              |   |
| Section 1.04                   | Rules of Construction                                           |   |
|                           |                                                            |   |
| **ARTICLE  2**                 |                                                            |
| THE  NOTES                     |                                                            |
|                           |                                                            |   |
| Section  2.01                  | Form  and Dating                                                |   |
| Section 2.02                   | Execution and Authentication                                    |   |
| Section 2.03                   | Registrar and Paying Agent                                      |   |
| Section 2.04                   | Paying Agent to Hold Money in Trust                             |   |
| Section  2.05                  | Holder  Lists                                                   |   |
| Section 2.06                   | Transfer and Exchange                                           |   |
| Section 2.07                   | Replacement Notes                                               |   |
| Section 2.08                   | Outstanding Notes                                               |   |
| Section  2.09                  | Treasury  Notes                                                 |   |
| Section 2.10                   | Temporary Notes                                                 |   |
| Section  2.11                  | Cancellation                                                    |   |
| Section 2.12                   | Defaulted Interest                                              |   |
|                           |                                                            |   |
| **ARTICLE  3**                 |                                                            |
| REDEMPTION  AND PREPAYMENT     |                                                            |
|                           |                                                            |   |
| Section 3.01                   | Notices to Trustee                                              |   |
| Section  3.02                  | Selection of Notes to Be Redeemed or  Purchased                 |   |
| Section 3.03                   | Notice of Redemption                                            |   |
| Section 3.04                   | Effect of Notice of Redemption                                  |   |
| Section  3.05                  | Deposit of Redemption or Purchase Price                         |   |
| Section 3.06                   | Notes Redeemed or Purchased in Part                             |   |
| Section 3.07                   | Optional Redemption                                             |   |
| Section 3.08                   | Mandatory Redemption                                            |   |
| Section  3.09                  | Offer to  Purchase by Application of Excess Proceeds            |   |
|                           |                                                            |   |
| **ARTICLE  4**                 |                                                            |
| COVENANTS                      |                                                            |
|                           |                                                            |   |
| Section 4.01                   | Payment of Notes                                                |   |
| Section 4.02                   | Maintenance of Office or Agency                                 |   |
| Section  4.03                  | Reports                                                         |   |
| Section 4.04                   | Compliance Certificate                                          |   |
| Section  4.05                  | Taxes                                                           |   |
| Section 4.06                   | Stay, Extension and Usury Laws                                  |   |
| Section 4.07                   | Restricted Payments                                             |   |
| Section  4.08                  | Dividend and Other Payment Restrictions  Affecting Subsidiaries |   |
| Section  4.09                  | Incurrence of Indebtedness and Issuance of  Preferred Stock     |   |
| Section  4.10                  | Asset  Sales                                                    |   |

 

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| Section 4.11                              | Transactions with Affiliates                                                                   |   |
|-------------------------------------------|------------------------------------------------------------------------------------------------|--------|
| Section  4.12                             | Liens                                                                                          |   |
| Section 4.13                              | Business Activities                                                                            |   |
| Section 4.14                              | Corporate Existence                                                                            |   |
| Section  4.15                             | Offer to Repurchase Upon Change of Control                                                     |   |
| Section 4.16                              | Payments for Consent                                                                           |   |
| Section 4.17                              | Additional Guarantees                                                                          |   |
| Section  4.18                             | Designation of Restricted and Unrestricted  Subsidiaries                                       |   |
|                                      |                                                                                           |   |
| **ARTICLE  5**                            |                                                                                           |
| SUCCESSORS                                |                                                                                           |
|                                      |                                                                                           |   |
| Section  5.01                             | Merger, Consolidation, or Sale of Assets                                                       |   |
| Section 5.02                              | Successor Corporation Substituted                                                              |   |
|                                      |                                                                                           |   |
| **ARTICLE  6**                            |                                                                                           |
| DEFAULTS  AND REMEDIES                    |                                                                                           |
|                                      |                                                                                           |   |
| Section 6.01                              | Events of Default                                                                              |   |
| Section  6.02                             | Acceleration                                                                                   |   |
| Section  6.03                             | Other  Remedies                                                                                |   |
| Section 6.04                              | Waiver of Past Defaults                                                                        |   |
| Section 6.05                              | Control by Majorit.                                                                            |   |
| Section 6.06                              | Limitation on Suits                                                                            |   |
| Section  6.07                             | Rights of Holders of Notes to Receive  Payment                                                 |   |
| Section 6.08                              | Collection Suit by Trustee                                                                     |   |
| Section 6.09                              | Trustee May File Proofs of Claim                                                               |   |
| Section  6.10                             | Priorities                                                                                     |   |
| Section 6.11                              | Undertaking for Costs                                                                          |   |
|                                      |                                                                                           |   |
| **ARTICLE  7**                            |                                                                                           |
| TRUSTEE                                   |                                                                                           |
|                                      |                                                                                           |   |
| Section 7.01                              | Duties of Trustee                                                                              |   |
| Section 7.02                              | Rights of Trustee                                                                              |   |
| Section 7.03                              | Individual Rights of Trustee                                                                   |   |
| Section 7.04                              | Trustee’s Disclaimer                                                                      |   |
| Section 7.05                              | Notice of Defaults                                                                             |   |
| Section  7.06                             | Reports by Trustee to Holders of the Notes                                                     |   |
| Section 7.07                              | Compensation and Indemnity                                                                     |   |
| Section 7.08                              | Replacement of Trustee                                                                         |   |
| Section 7.09                              | Successor Trustee by Merger, etc                                                               |   |
| Section 7.10                              | Eligibility; Disqualification                                                                  |   |
| Section  7.11                             | Preferential Collection of Claims Against  Company                                             |   |
|                                      |                                                                                           |   |
| **ARTICLE  8**                            |                                                                                           |
| LEGAL  DEFEASANCE AND COVENANT DEFEASANCE |                                                                                           |
|                                      |                                                                                           |   |
| Section  8.01                             | Option to Effect Legal Defeasance or  Covenant Defeasance                                      |   |
| Section 8.02                              | Legal Defeasance and Discharge                                                                 |   |
| Section 8.03                              | Covenant Defeasance                                                                            |   |
| Section  8.04                             | Conditions to Legal or Covenant Defeasance                                                     |   |
| Section  8.05                             | Deposited Money and Government Securities  to be Held in Trust; Other Miscellaneous Provisions |   |
| Section 8.06                              | Repayment to Company                                                                           |   |

 

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| Section  8.07                     | Reinstatement                                                             |   |
|-----------------------------------|---------------------------------------------------------------------------|--------|
|                              |                                                                      |   |
| **ARTICLE  9**                    |                                                                      |
| AMENDMENT,  SUPPLEMENT AND WAIVER |                                                                      |
|                              |                                                                      |   |
| Section 9.01                      | Without Consent of Holders of Notes                                       |   |
| Section 9.02                      | With Consent of Holders of Notes                                          |   |
| Section 9.03                      | Compliance with Trust Indenture Act                                       |   |
| Section 9.04                      | Revocation and Effect of Consents                                         |   |
| Section 9.05                      | Notation on or Exchange of Notes                                          |   |
| Section 9.06                      | Trustee to Sign Amendments, etc                                           |   |
|                              |                                                                      |   |
| **ARTICLE  10**                   |                                                                      |
| GUARANTEES                        |                                                                      |
|                              |                                                                      |   |
| Section  10.01.                   | Guarantee                                                                 |   |
| Section 10.02.                    | Limitation on Guarantor Liability                                         |   |
| Section  10.03.                   | Execution and Delivery of Guarantee                                       |   |
| Section  10.04.                   | Guarantors May Consolidate, etc., on  Certain Terms                       |   |
| Section  10.05.                   | Releases.                                                                 |   |
|                              |                                                                      |   |
| **ARTICLE  11**                   |                                                                      |
| SATISFACTION  AND DISCHARGE       |                                                                      |
|                              |                                                                      |   |
| Section 11.01                     | Satisfaction and Discharge                                                |   |
| Section 11.02                     | Application of Trust Money                                                |   |
|                              |                                                                      |   |
| **ARTICLE  12**                   |                                                                      |
| MISCELLANEOUS                     |                                                                      |
|                              |                                                                      |   |
| Section 12.01                     | Trust Indenture Act Controls                                              |   |
| Section  12.02                    | Notices                                                                   |   |
| Section  12.03                    | Communication by Holders of Notes with  Other Holders of Notes            |   |
| Section  12.04                    | Certificate and Opinion as to Conditions  Precedent                       |   |
| Section  12.05                    | Statements Required in Certificate or  Opinion                            |   |
| Section 12.06                     | Rules by Trustee and Agents                                               |   |
| Section  12.07                    | No Personal Liability of Directors,  Officers, Employees and Stockholders |   |
| Section  12.08                    | Governing  Law                                                            |   |
| Section  12.09                    | No Adverse Interpretation of Other  Agreements                            |   |
| Section  12.10                    | Successors                                                                |   |
| Section  12.11                    | Severability                                                              |   |
| Section 12.12                     | Counterpart Originals                                                     |   |
| Section 12.13                     | Table of Contents, Headings, etc                                          |   |

 

EXHIBITS

 
| Exhibit A | FORM OF NOTE                                                        |   |
|-----------|---------------------------------------------------------------------|--------|
| Exhibit B | FORM OF CERTIFICATE OF TRANSFER                                     |   |
| Exhibit C | FORM OF CERTIFICATE OF EXCHANGE                                     |   |
| Exhibit D | FORM OF CERTIFICATE OF ACQUIRING  INSTITUTIONAL ACCREDITED INVESTOR |   |
| Exhibit E | FORM OF NOTATION OF GUARANTEE                                       |   |
| Exhibit F | FORM OF SUPPLEMENTAL INDENTURE                                      |   |

 

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INDENTURE dated as of February 23, 2004 amongUbiquiTel Operating Company, a Delaware corporation, UbiquiTel Inc., theGuarantors (as defined), and The Bank of New York, a New York bankingcorporation, as trustee.

 

The Company, the Guarantor(s) and the Trustee agree asfollows for the benefit of each other and for the equal and ratable benefit ofthe Holders (as defined) of the****97/8%Senior Notes due 2011 (the “*Notes*”):

 

**ARTICLE 1**

DEFINITIONS ANDINCORPORATIONBY REFERENCE

 

## *Section 1.01          *Definitions.

## * *

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

 

* “Acquired Debt”* means, withrespect to any specified Person:

 

#### (1)Indebtedness of any other Person existing at the time such other Person ismerged with or into or became a Subsidiary of such specified Person, whether ornot such Indebtedness is incurred in connection with, or in contemplation of,such other Person merging with or into, or becoming a Restricted Subsidiary of,such specified Person; and

####  

#### (2)Indebtedness secured by a Lien encumbering any asset acquired by such specifiedPerson.

####  

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

 

*“Affiliate”*of any specified Person means any other Person directly or indirectlycontrolling or controlled by or under direct or indirect common control withsuch specified Person. For purposes of this definition, ‘‘control,’’ as usedwith respect to any Person, means the possession, directly or indirectly, ofthe power to direct or cause the direction of the management or policies ofsuch Person, whether through the ownership of voting securities, by agreementor otherwise; *provided*thatbeneficial ownership of 10% or more of the Voting Stock of a Person will bedeemed to be control. For purposes of this definition, the terms ‘‘controlling,’’‘‘controlled by’’ and ‘‘under common control with’’ have correlative meanings.

 

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

 

“*AnnualizedConsolidated Cash Flow”*of any specified Person as of any date of determinationmeans two times the Consolidated Cash Flow of such Person for the most recentlyended two-quarter period for which internal financial statements are available.

 

“*ApplicableProcedures”* means, with respect to any transfer or exchange of orfor beneficial interests in any Global Note, the rules and procedures of theDepositary, Euroclear and Clearstream that apply to such transfer or exchange.

 

 “*Asset Sale*”means:

 

1

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(1)   the sale,lease, conveyance or other disposition of any assets or rights; *provided*that the sale, lease, conveyanceor other disposition of all or substantially all of the assets of the Companyand its Restricted Subsidiaries taken as a whole will be governed by theprovisions of Sections 4.15 and 5.01 of this Indenture and not by Section 4.10of this Indenture; and

 

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

 

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

 

(1)  any singletransaction or series of related transactions that involves assets having aFair Market Value of less than $2.0 million;

 

(2) a transfer of assets between or among the Companyand its Restricted Subsidiaries;

 

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

 

(4) the sale or lease of products, services oraccounts receivable in the ordinary course of business and any sale or otherdisposition of damaged, worn-out or obsolete assets in the ordinary course ofbusiness;

 

(5) the sale or other disposition of cash or CashEquivalents; and

 

(6) a Restricted Payment that does not violate Section4.07 of this Indenture or a Permitted Investment.

 

*“BankruptcyLaw”* means Title 11, U.S. Code or any similar federal orstate law for the relief of debtors.

 

“*Beneficial Owner*” has the meaning assignedto such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except thatin calculating the beneficial ownership of any particular “person” (as thatterm is used in Section 13(d)(3) of the Exchange Act), such “person” will bedeemed to have beneficial ownership of all securities that such “person” hasthe right to acquire by conversion or exercise of other securities, whethersuch right is currently exercisable or is exercisable only after the passage oftime. The terms “Beneficially Owns” and “Beneficially Owned” have acorresponding meaning.

 

“*Board of Directors*” means:

 

#### (1) withrespect to a corporation, the board of directors of the corporation or anycommittee thereof duly authorized to act on behalf of such board;

####  

#### (2) withrespect to a partnership, the Board of Directors of the general partner of thepartnership;

####  

#### (3) withrespect to a limited liability company, the managing member or members or anycontrolling committee of managing members thereof; and

####  

#### (4) withrespect to any other Person, the board or committee of such Person serving asimilar function.

 

2

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

 

*“BusinessDay”* means any day other than a Legal Holiday.

 

*“CapitalLease Obligation”* means, at the time any determination is tobe made, the amount of the liability in respect of a capital lease that wouldat that time be required to be capitalized on a balance sheet prepared inaccordance with GAAP, and the Stated Maturity thereof shall be the date of thelast payment of rent or any other amount due under such lease prior to thefirst date upon which such lease may be prepaid by the lessee without paymentof a penalty.

 

*“CapitalStock”* means:

 

#### (1) inthe case of a corporation, corporate stock;

####  

#### (2) inthe case of an association or business entity, any and all shares, interests,participations, rights or other equivalents (however designated) of corporatestock;

####  

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

####  

#### (4) anyother interest or participation that confers on a Person the right to receive ashare of the profits and losses of, or distributions of assets of, the issuingPerson, but excluding from all of the foregoing any debt securities convertibleinto Capital Stock, whether or not such debt securities include any right ofparticipation with Capital Stock.

####  

*“CashEquivalents”* means:

 

#### (1)United States dollars;

####  

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

####  

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

####  

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

####  

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

####  

#### (6)money market funds at least 95% of the assets of which constitute CashEquivalents of the kinds described in clauses (1) through (5) of thisdefinition.

####  

*“Changeof Control”* means the occurrence of any of the followingevents:

 

3

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(1) the direct orindirect sale, transfer, conveyance or other disposition (other than by way ofmerger or consolidation), in one or a series of related transactions, of all orsubstantially all of the properties or assets of the Company and itsSubsidiaries taken as a whole to any “person” (as that term is used in Section13(d) of the Exchange Act) other than a Permitted Holder;

 

(2) the adoption of aplan relating to the liquidation or dissolution of the Company;

 

(3) the consummation ofany transaction (including, without limitation, any merger or consolidation)the result of which is that any “person” (as defined above) other than aPermitted Holder becomes the Beneficial Owner, directly or indirectly, of morethan 50% of the Voting Stock of the Company, measured by voting power ratherthan number of shares;

 

(4) the first day onwhich a majority of the members of the Board of Directors of the Company arenot Continuing Directors; or

 

(5) the first day onwhich Parent (or its successor) ceases to own 100% of the outstanding EquityInterests of the Company, other than by reason of a merger or consolidation ofthe Company with Parent (or its successor).

 

*“Clearstream”*means Clearstream Banking, S.A.

 

“*Company”*  means UbiquiTel Operating Company, and anyand all successors thereto.

 

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

 

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

 

(2) provision for taxesbased on income or profits of such Person and its Restricted Subsidiaries forsuch period, to the extent that such provision for taxes was deducted in computingsuch Consolidated Net Income; *plus*

 

(3) the ConsolidatedInterest Expense of such Person and its Restricted Subsidiaries for suchperiod, to the extent that such Consolidated Interest Expense was deducted incomputing such Consolidated Net Income; *plus*

 

(4) depreciation,amortization (including amortization of intangibles but excluding amortizationof prepaid cash expenses that were paid in a prior period) and other non-cashexpenses (excluding any such non-cash expense to the extent that it representsan accrual of or reserve for cash expenses in any future period or amortizationof a prepaid cash expense that was paid in a prior period) of such Person andits Restricted Subsidiaries for such period to the extent that suchdepreciation, amortization and other non-cash expenses were deducted incomputing such Consolidated Net Income; *minus*

 

(5) non-cash itemsincreasing such Consolidated Net Income for such period, other than the accrualof revenue in the ordinary course of business,

 

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

 

4

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Notwithstanding thepreceding, the provision for taxes based on the income or profits of, and thedepreciation and amortization and other non-cash expenses of, a RestrictedSubsidiary of the Company will be added to Consolidated Net Income to computeConsolidated Cash Flow of the Company only to the extent that a correspondingamount would be permitted at the date of determination to be dividended to theCompany by such Restricted Subsidiary without prior governmental approval (thathas not been obtained), and without direct or indirect restriction pursuant tothe terms of its charter and all agreements, instruments, judgments, decrees,orders, statutes, rules and governmental regulations applicable to thatRestricted Subsidiary or its stockholders.

 

“*ConsolidatedIndebtedness*” means, with respect to any specified Person as of anydate of determination, the sum, without duplication, of:

 

(1) the total amount ofIndebtedness of such Person and its Restricted Subsidiaries; plus

 

(2) the total amount ofIndebtedness of any other Person, to the extent that such Indebtedness has beenGuaranteed by the referent Person or one or more of its Restricted Subsidiaries;plus

 

(3)  the aggregate liquidation value of allDisqualified Stock of such Person and any of its Restricted Subsidiaries thathave Guaranteed the Indebtedness of such Person and all preferred stock of theRestricted Subsidiaries of such Person,

 

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

 

“*ConsolidatedInterest Expense*” means, with respect to any specified Person forany period, the sum, without duplication, of:

 

(1) the consolidatedinterest expense of such Person and its Restricted Subsidiaries for suchperiod, whether paid or accrued, including, without limitation, amortization ofdebt issuance costs and original issue discount, non-cash interest payments,the interest component of any deferred payment obligations, the interestcomponent of all payments associated with Capital Lease Obligations,commissions, discounts and other fees and charges incurred in respect of letterof credit or bankers’ acceptance financings, and net of the effect of allpayments made or received pursuant to Hedging Obligations in respect ofinterest rates; *plus*

 

(2) the consolidatedinterest expense of such Person and its Restricted Subsidiaries that wascapitalized during such period; *plus*

 

(3) any interest expenseon Indebtedness of another Person that is Guaranteed by such Person or one ofits Restricted Subsidiaries or secured by a Lien on assets of such Person orone of its Restricted Subsidiaries, whether or not such Guarantee or Lien iscalled upon;*plus*

 

(4) the product of (a)all dividends, whether paid or accrued and whether or not in cash, on anyseries of preferred stock of such Person or any of its Restricted Subsidiaries,other than dividends on Equity Interests payable solely in Equity Interests ofthe Company (other than Disqualified Stock) or to the Company or a RestrictedSubsidiary of the Company, times (b) a fraction, the numerator of which is oneand the denominator of which is one minus the then current combined federal,state and local statutory tax rate of such Person, expressed as a decimal, ineach case, on a consolidated basis and in accordance with GAAP.

 

5

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

 

(1) the Net Income (butnot loss) of any Person that is not a Restricted Subsidiary or that is accountedfor by the equity method of accounting will be included only to the extent ofthe amount of dividends or similar distributions paid in cash to the specifiedPerson or a Restricted Subsidiary of the Person;

 

(2) the Net Income of anyRestricted Subsidiary will be excluded to the extent that the declaration orpayment of dividends or similar distributions by that Restricted Subsidiary ofthat Net Income is not at the date of determination permitted without any priorgovernmental approval (that has not been obtained) or, directly or indirectly,by operation of the terms of its charter or any agreement, instrument,judgment, decree, order, statute, rule or governmental regulation applicable tothat Restricted Subsidiary or its stockholders;

 

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

 

(4) notwithstandingclause (1) above, the Net Income of any Unrestricted Subsidiary will beexcluded, whether or not distributed to the specified Person or one of itsSubsidiaries.

 

“*ContinuingDirectors*” means, as of any date of determination, any member of theBoard of Directors of the Company who:

 

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

 

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

 

*“CorporateTrust Office of the Trustee”* means the principal office ofthe Trustee at which at any time its corporate trust business shall beadministered, which office at the dated hereof is located at 101 BarclayStreet, Floor 8 West, New York, New York 10286, Attention:  Corporate Trust Administration, or such otheraddress as the Trustee may designate from time to time by notice to the Holdersand the Company, or the principal corporate trust office of any successorTrustee (or such other address as such successor Trustee may designate fromtime to time by notice to the Holders and the Company).

 

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

 

“*Debt to Cash FlowRatio”* means, with respect to any specified Person as of any date ofdetermination, the ratio of (a) the Consolidated Indebtedness of such Person asof such date to (b) the Annualized Consolidated Cash Flow of such Person forthe two most recent full fiscal quarters for which internal financialstatements are available prior to such date of determination, determined on a proforma basis after giving effect to all acquisitions or dispositions of assetsmade by such Person and its Restricted Subsidiaries from the beginning of suchtwo-quarter period through and including such date of determination (includingany related financing transactions) as if such acquisitions and dispositions(and related financing transactions) had occurred at the beginning of suchtwo-quarter period.

 

In addition, for purposes of calculating the Debt toCash Flow Ratio:

 

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(1) acquisitions thathave been made by the specified Person or any of its Restricted Subsidiaries,including through mergers or consolidations, or any Person or any of itsRestricted Subsidiaries acquired by the specified Person or any of itsRestricted Subsidiaries, and including increases in ownership of RestrictedSubsidiaries, during the two-quarter reference period or subsequent to suchreference period and on or prior to the date on which the event for which thecalculation of the Debt to Cash Flow Ratio is made (the “Calculation Date”)will be given pro forma effect (determined in good faith on a reasonable basisin accordance with Regulation S-X under the Securities Act by a responsiblefinancial or accounting officer of the specified person) as if they hadoccurred on the first day of the two-quarter reference period and ConsolidatedCash Flow for such reference period shall be calculated without giving effectto clause (3) of the proviso set forth in the definition of Consolidated NetIncome;

 

(2) the Consolidated CashFlow attributable to discontinued operations, as determined in accordance withGAAP, and operations or businesses (and ownership interests therein) disposedof prior to the Calculation Date, will be excluded;

 

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

 

(4) any Person that isnot a Restricted Subsidiary on the Calculation Date will be deemed not to havebeen a Restricted Subsidiary at any time during such two-quarter period.

 

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

 

*“DefinitiveNote”* means a certificated Note registered in the name of theHolder thereof and issued in accordance with Section 2.06 hereof, substantiallyin the form of Exhibit A hereto except that such Note shall not bear the GlobalNote Legend and shall not have the “Schedule of Exchanges of Interests in theGlobal Note” attached thereto.

 

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

 

*“DisqualifiedStock”* means any Capital Stock that, by its terms (or by theterms of any security into which it is convertible, or for which it isexchangeable, in each case, at the option of the holder of the Capital Stock),or upon the happening of any event, matures or is mandatorily redeemable,pursuant to a sinking fund obligation or otherwise, or redeemable at the optionof the holder of the Capital Stock, in whole or in part, on or prior to thedate that is 91 days after the date on which the Notes mature. Notwithstandingthe preceding sentence, any Capital Stock that would constitute DisqualifiedStock solely because the holders of the Capital Stock have the right to requirethe Company to repurchase such Capital Stock upon the occurrence of a change ofcontrol or an asset sale will not constitute Disqualified Stock if the terms ofsuch Capital Stock provide that the Company may not repurchase or redeem anysuch Capital Stock pursuant to such provisions unless such repurchase orredemption complies with Section 4.07 hereof. The amount of Disqualified Stockdeemed to be outstanding at any time for purposes of this Indenture will be themaximum amount that the Company and its Restricted Subsidiaries may becomeobligated to pay upon the maturity of, or pursuant to any mandatory redemptionprovisions of, such Disqualified Stock, exclusive of accrued dividends.

 

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“*DomesticRestricted Subsidiary*” means any Restricted Subsidiary of theCompany that was formed under the laws of the United States or any state of theUnited States or the District of Columbia or that guarantees or otherwiseprovides direct credit support for any Indebtedness of the Company.

 

*“EquityInterests”* means Capital Stock and all warrants, options orother rights to acquire Capital Stock (but excluding any debt security that isconvertible into, or exchangeable for, Capital Stock).

 

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

 

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

 

*“ExchangeNotes”* means the Notes issued in the Exchange Offer pursuantto Section 2.06(f) hereof.

 

*“ExchangeOffer”* has the meaning set forth in the Registration RightsAgreement.

 

*“ExchangeOffer Registration Statement”* has the meaning set forth inthe Registration Rights Agreement.

 

*“ExistingIndebtedness”* means Indebtedness of the Company and itsSubsidiaries in existence on the date of this Indenture, until such amounts arerepaid.

 

*“Fair Market Value”*meansthe value that would be paid by a willing buyer to an unaffiliated willingseller in a transaction not involving distress or necessity of either party,determined in good faith by the Board of Directors of the Company (unlessotherwise provided in this Indenture).

 

* “GAAP”* means generallyaccepted accounting principles set forth in the opinions and pronouncements ofthe Accounting Principles Board of the American Institute of Certified PublicAccountants and statements and pronouncements of the Financial AccountingStandards Board or in such other statements by such other entity as have beenapproved by a significant segment of the accounting profession, which are ineffect from time to time.

 

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

 

*“GlobalNotes”* means, individually and collectively, each of theRestricted Global Notes and the Unrestricted Global Notes deposited with or onbehalf of and registered in the name of the Depository or its nominee,substantially in the form of Exhibit A hereto and that bears the Global NoteLegend and that has the “Schedule of Exchanges of Interests in the Global Note”attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.

 

*“GovernmentSecurities”* means direct obligations of, or obligationsguaranteed by, the United States of America, and the payment for which theUnited States pledges its full faith and credit.

 

*“guarantee”*means a guarantee other than by endorsement of negotiable instruments forcollection in the ordinary course of business, direct or indirect, in anymanner including, without limitation, by way of a pledge of assets or throughletters of credit or reimbursement agreements in respect thereof, of all or anypart of any Indebtedness (whether arising by virtue of partnershiparrangements, or by agreements to keep-well, to purchase assets, goods,securities or services, to take or pay or to maintain financial statementconditions or otherwise).

 

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“*Guarantee*”means a guarantee of the Notes by a Guarantor in accordance with thisIndenture.

 

*“Guarantors”*means each of:

 

(1) UbiquiTel Inc.; and

 

(2) any Subsidiary of the Company that executes aGuarantee in accordance with the provisions of this Indenture,

 

and their respective successors and assigns, in eachcase, until the Guarantee of such Person has been released in accordance withthe provisions of this Indenture.

 

*“HedgingObligations”* means, with respect to any specified Person, theobligations of such Person under:

 

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

 

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

 

(3) other agreements or arrangements designed toprotect such Person against fluctuations in currency exchange rates orcommodity prices.

 

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

 

*“IAIGlobal Note”* means a Global Note substantially in the form ofExhibit A hereto bearing the Global Note Legend and the Private PlacementLegend and deposited with or on behalf of and registered in the name of theDepositary or its nominee that will be issued in a denomination equal to theoutstanding principal amount of the Notes sold to Institutional AccreditedInvestors*.*

 

“*Immaterial Subsidiary*” means, as of anydate, any Restricted Subsidiary whose total assets, as of that date, are lessthan $100,000 and whose total revenues for the most recent 12-month period donot exceed $100,000; provided that a Restricted Subsidiary will not beconsidered to be an Immaterial Subsidiary if it, directly or indirectly,guarantees or otherwise provides direct credit support for any Indebtedness ofthe Company.

 

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

 

(1) in respect of borrowed money;

 

(2) evidenced by bonds, notes, debentures or similarinstruments or letters of credit (or reimbursement agreements in respectthereof);

 

(3) in respect of banker’s acceptances;

 

(4) representing Capital Lease Obligations;

 

(5) representing the balance deferred and unpaid ofthe purchase price of any property or services due more than six months aftersuch property is acquired or such services are completed; or

 

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(6) representing any Hedging Obligations,

 

if and to the extent any of the preceding items (otherthan letters of credit and Hedging Obligations) would appear as a liabilityupon a balance sheet of the specified Person prepared in accordance with GAAP.In addition, the term “Indebtedness” includes all Indebtedness of otherssecured by a Lien on any asset of the specified Person (whether or not suchIndebtedness is assumed by the specified Person) and, to the extent nototherwise included, the Guarantee by the specified Person of any Indebtednessof any other Person.

 

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

 

*“IndirectParticipant”* means a Person who holds a beneficial interestin a Global Note through a Participant.

 

*“InitialNotes”* means the first $270,000,000 aggregate principalamount of Notes issued under this Indenture on the date hereof.

 

*“InitialPurchasers”* means Bear, Stearns & Co. Inc., CitigroupGlobal Markets Inc. and Banc of America Securities LLC.

 

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

 

*“Investments”*means, with respect to any Person, all direct or indirect investments by suchPerson in other Persons (including Affiliates) in the forms of loans (includingGuarantees or other obligations), advances or capital contributions (excludingcommission, travel and similar advances to officers and employees made in theordinary course of business), purchases or other acquisitions for considerationof Indebtedness, Equity Interests or other securities, together with all itemsthat are or would be classified as investments on a balance sheet prepared inaccordance with GAAP. If the Company or any Restricted Subsidiary of theCompany sells or otherwise disposes of any Equity Interests of any direct orindirect Restricted Subsidiary of the Company such that, after giving effect toany such sale or disposition, such Person is no longer a Restricted Subsidiaryof the Company, the Company will be deemed to have made an Investment on thedate of any such sale or disposition equal to the Fair Market Value of theCompany’s Investments in such Restricted Subsidiary that were not sold ordisposed of in an amount determined as provided in the final paragraph ofSection 4.07(b) of this Indenture. The acquisition by the Company or anyRestricted Subsidiary of the Company of a Person that holds an Investment in athird Person will be deemed to be an Investment by the Company or suchRestricted Subsidiary in such third Person in an amount equal to the FairMarket Value of the Investments held by the acquired Person in such thirdPerson in an amount determined as provided in the final paragraph of Section4.07(b) of this Indenture. Except as otherwise provided in this Indenture, theamount of an Investment will be determined at the time the Investment is madeand without giving effect to subsequent changes in value.

 

*“LegalHoliday”* means a Saturday, a Sunday or a day on which bankinginstitutions in the City of New York or at a place of payment are authorized bylaw, regulation or executive order to remain closed.  If a payment date is a Legal Holiday at a place of payment,payment may be made at that place on the next succeeding day that is not aLegal Holiday, and no interest shall accrue on such payment for the interveningperiod.

 

*“Letterof Transmittal”* means the letter of transmittal to beprepared by the Company and sent to all Holders of the Notes for use by suchHolders in connection with the Exchange Offer.

 

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*“Lien”*means, with respect to any asset, any mortgage, lien, pledge, charge, securityinterest or encumbrance of any kind in respect of such asset, whether or notfiled, recorded or otherwise perfected under applicable law, including anyconditional sale or other title retention agreement, any lease in the naturethereof, any option or other agreement to sell or give a security interest inand any filing of or agreement to give any financing statement under theUniform Commercial Code (or equivalent statutes) of any jurisdiction.

 

*“LiquidatedDamages”* means all liquidated damages then owing pursuant tothe Registration Rights Agreement*.*

 

*“NetIncome”* means, with respect to any specified Person, the netincome (loss) of such Person, determined in accordance with GAAP and before anyreduction in respect of preferred stock dividends, excluding, however:

 

#### (1) anygain (but not loss), together with any related provision for taxes on such gain(but not loss), realized in connection with:

####  

##### (a)           any Asset Sale; or

#####  

##### (b)           the disposition of any securities bysuch Person or any of its Restricted Subsidiaries or the extinguishment of anyIndebtedness of such Person or any of its Restricted Subsidiaries; and

#####  

#### (2)  any extraordinary gain (but not loss), togetherwith any related provision for taxes on such extraordinary gain (but not loss).

####  

*“NetProceeds”* means the aggregate cash proceeds received by theCompany or any of its Restricted Subsidiaries in respect of any Asset Sale(including, without limitation, any cash received upon the sale or otherdisposition of any non-cash consideration received in any Asset Sale), net ofthe direct costs relating to such Asset Sale, including, without limitation,legal, accounting and investment banking fees, and sales commissions, and anyrelocation expenses incurred as a result of the Asset Sale, taxes paid orpayable as a result of the Asset Sale, in each case, after taking into accountany available tax credits or deductions and any tax sharing arrangements, and amountsrequired to be applied to the repayment of Indebtedness (other thanIndebtedness incurred pursuant to clause (1) of the definition of “PermittedDebt”) secured by a Lien on the asset or assets that were the subject of suchAsset Sale and any reserve for adjustment in respect of the sale price of suchasset or assets established in accordance with GAAP

 

“*Non-Recourse Debt*” means Indebtedness:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

*“Officers’Certificate”* means a certificate signed on behalf of theCompany by two Officers of the Company, one of whom must be the principalexecutive officer, the principal financial officer, the treasurer or theprincipal accounting officer of the Company, that meets the requirements of Section12.05 hereof.

 

*“Opinionof Counsel”* means an opinion from legal counsel who isreasonably acceptable to the Trustee, that meets the requirements of Section12.05 hereof.  The counsel may be anemployee of or counsel to the Company, any Subsidiary of the Company or theTrustee.

 

“*Parent”*  means UbiquiTel, Inc.

 

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

 

*“PermittedBusiness”*means the delivery or distribution oftelecommunications, voice, data or video services, or any business or activityreasonably related or ancillary thereto.

 

“*Permitted Holder*”means:

 

(1) any issuer of VotingStock issued to the holders of the voting stock of the Company or Parent in amerger or consolidation that, but for this definition, would constitute aChange of Control solely by virtue of clause (3) of the definition of Change ofControl, if no “person” (as that term is used in Section 13(d) of the ExchangeAct), other than another Permitted Holder, Beneficially Owns, directly orindirectly, more than 50% of the Voting Stock of such issuer, measured byvoting power rather than number of shares;

 

(2) Parent (or its successor); and

 

(3) any wholly owned Subsidiary of any PermittedHolder described in clause (1) or (2) above.

 

*“PermittedInvestments”* means

 

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(1) any Investment in the Company or in a RestrictedSubsidiary of the Company that is a Guarantor;

 

(2) any Investment in Cash Equivalents;

 

(3) any Investment by the Company or any RestrictedSubsidiary of the Company in a Person, if as a result of such Investment:

 

##### (a)           such Person becomes a RestrictedSubsidiary of the Company and a Guarantor; or

#####  

##### (b)           such Person is merged, consolidatedor amalgamated with or into, or transfers or conveys substantially all of itsassets to, or is liquidated into, the Company or a Restricted Subsidiary of theCompany that is a Guarantor;

#####  

(4) any Investment made as a result of the receipt ofnon-cash consideration from an Asset Sale that was made pursuant to and incompliance Section 4.10 of this Indenture;

 

(5) any acquisition of assets or Capital Stock solelyin exchange for the issuance of Equity Interests (other than DisqualifiedStock) of the Company;

 

(6) any Investments received in compromise orresolution of (A) obligations of trade creditors or customers that wereincurred in the ordinary course of business of the Company or any of itsRestricted Subsidiaries, including pursuant to any plan of reorganization orsimilar arrangement upon the bankruptcy or insolvency of any trade creditor orcustomer; or (B) litigation, arbitration or other disputes with Persons who arenot Affiliates of the Company;

 

(7) Investments represented by Hedging Obligations;

 

(8) Investments in prepaid expenses, negotiableinstruments held for collection, and lease, utility and workers’ compensation,performance and other similar deposits;

 

(9) loans or advances to employees made in theordinary course of business of the Company or any Restricted Subsidiary of theCompany in an aggregate principal amount not to exceed $1.0 million at any onetime outstanding; and

 

(10) repurchases of the Notes.

 

*“PermittedLiens”* means

 

(1) Liens on assets of the Company or any of itsRestricted Subsidiaries securing Indebtedness incurred pursuant to clause (1)of the definition of “Permitted Debt;”

 

(2) Liens in favor of the Company or the Guarantors;

 

(3) Liens on property of a Person existing at the timesuch Person is merged with or into or consolidated with the Company or anySubsidiary of the Company; provided that such Liens were in existence prior tothe contemplation of such merger or consolidation and do not extend to anyassets other than those of the Person merged into or consolidated with theCompany or the Subsidiary;

 

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

 

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

 

(6) Liens to secure Indebtedness (including CapitalLease Obligations) permitted by Section 4.09(b)(4) of this Indenture coveringonly the assets acquired with or financed by such Indebtedness;

 

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

 

(8) Liens for taxes, assessments or governmentalcharges or claims that are not yet delinquent or that are being contested ingood faith by appropriate proceedings promptly instituted and diligentlyconcluded; provided that any reserve or other appropriate provision as isrequired in conformity with GAAP has been made therefor;

 

(9) Liens imposed by law, such as carriers’,warehousemen’s, landlord’s and mechanics’ Liens, in each case, incurred in theordinary course of business;

 

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

 

(11) Liens, other than Liens securing Indebtedness formoney borrowed, that may arise under the Company’s management and servicesagreements with Sprint Spectrum L.P. and its Affiliates;

 

(12) Liens for security for payment of workers’compensation or other insurance or arising under workers’ compensation laws orsimilar legislation;

 

(13) Liens with respect to leasehold interests,mortgages, obligations, liens and other encumbrances incurred, created, assumedor permitted to exist and arising by, through or under a landlord or owner ofthe leased property, with or without the consent of the lessee, none of whichmaterially impairs the use of any parcel of property material to the businessof the Company and its Restricted Subsidiaries, taken as a whole, or the valueof such property for the purpose of such business;

 

(14) Liens arising from leases, subleases, licenses orother similar rights that do not interfere with the ordinary course of thebusiness of the Company and its Restricted Subsidiaries;

 

(15) Liens securing reimbursement obligations withrespect to letters of credit that encumber documents and other propertyrelating to such letters of credit;

 

(16) Liens created for the benefit of (or to secure)the Notes (or the Guarantees); and

 

(17) Liens to secure any Permitted RefinancingIndebtedness permitted to be incurred under this Indenture; *provided, however,* that:

 

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(a) the new Lien shall belimited to all or part of the same property and assets that secured or, underthe written agreements pursuant to which the original Lien arose, could securethe original Lien (plus improvements and accessions to, such property or proceedsor distributions thereof); and

 

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

 

*“Permitted Payments to Parent”*means, without duplication as to amounts:

 

(1) payments to Parent to permit Parent to payreasonable accounting, legal and administrative expenses Parent when due, in anaggregate amount not to exceed $500,000 per annum; and

 

(2) for so long as the Company is a member of a groupfiling a consolidated or combined tax return with Parent payments to Parent inrespect of an allocable portion of the tax liabilities of such group that isattributable to the Company and its Subsidiaries (“*Tax Payments*”). The Tax Payments shall not exceed the lesserof (i) the amount of the relevant tax (including any penalties and interest)that the Company would owe if the Company were filing a separate tax return (ora separate consolidated or combined return with its Subsidiaries that aremembers of the consolidated or combined group), taking into account anycarryovers and carrybacks of tax attributes (such as net operating losses) ofthe Company and such Subsidiaries from other taxable years and (ii) the netamount of the relevant tax that Parent actually owes to the appropriate taxingauthority. Any Tax Payments received from the Company shall be paid over to theappropriate taxing authority within 30 days of Parent’s receipt of such TaxPayments or refunded to the Company.

 

*“PermittedRefinancing Indebtedness”* means any Indebtedness of the Companyor any of its Restricted Subsidiaries issued in exchange for, or the netproceeds of which are used to extend, renew, refund, refinance, replace,defease or discharge other Indebtedness of the Company or any of its RestrictedSubsidiaries (other than intercompany Indebtedness); provided that:

 

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

 

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

 

(3) if the Indebtedness being extended, renewed,refunded, refinanced, replaced, defeased or discharged is subordinated in rightof payment to the Notes, such Permitted Refinancing Indebtedness has a finalmaturity date later than the final maturity date of, and is subordinated inright of payment to, the Notes on terms at least as favorable to the Holders ofNotes as those contained in the documentation governing the Indebtedness beingextended, renewed, refunded, refinanced, replaced, defeased or discharged;provided, however, that this clause (3) shall not apply to any PermittedRefinancing Indebtedness the proceeds of which are used to extend, renew,refund, refinance, replace, defease or

 

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discharge the Company’s14% Senior Subordinated Discount Notes due 2010 if, immediately after givingeffect thereto, the Company’s Senior Debt to Cash Flow Ratio is no greater thanthe Company’s Senior Debt to Cash Flow Ratio as of the date of this Indenture;and

 

(4) such Indebtedness is incurred either by theCompany or by the Restricted Subsidiary who is the obligor on the Indebtednessbeing extended, renewed, refunded, refinanced, replaced, defeased ordischarged.

 

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

 

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

 

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

 

“*Registration Rights Agreement”* means theRegistration Rights Agreement, dated as of February 23, 2004, among theCompany, the Guarantor and the other parties named on the signature pagesthereof, as such agreement may be amended, modified or supplemented from timeto time and, with respect to any Additional Notes, one or more registrationrights agreements among the Company, the Guarantor and the other partiesthereto, as such agreement(s) may be amended, modified or supplemented fromtime to time, relating to rights given by the Company to the purchasers ofAdditional Notes to register such Additional Notes under the Securities Act.

 

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

 

*“RegulationS Global Note”* means a Global Note substantially in the formof Exhibit A hereto bearing the Global Note Legend and the Private PlacementLegend and deposited with or on behalf of and registered in the name of theDepositary or its nominee, issued in a denomination equal to the outstandingprincipal amount of the Notes sold in reliance on Rule 903 of Regulation S.

 

*“ResponsibleOfficer,”* when used with respect to the Trustee, means anyofficer within the Corporate Trust Administration of the Trustee (or anysuccessor group of the Trustee), including any vice president, assistanttreasurer or any other officer of the Trustee customarily performing functionssimilar to those performed by any of the above designated officers and alsomeans, with respect to a particular corporate trust matter, any other officerto whom such matter is referred because of his knowledge of and familiaritywith the particular subject.

 

*“RestrictedDefinitive Note”* means a Definitive Note bearing the PrivatePlacement Legend.

 

*“RestrictedGlobal Note”* means a Global Note bearing the PrivatePlacement Legend.

 

*“RestrictedInvestment”* means an Investment other than a PermittedInvestment.

 

“*RestrictedSubsidiary*” of a Person means any Subsidiary of the referent Personthat is not an Unrestricted Subsidiary.

 

*“Rule144”* means Rule 144 promulgated under the Securities Act.

 

*“Rule144A”* means Rule 144A promulgated under the Securities Act.

 

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*“Rule903”* means Rule 903 promulgated under the Securities Act.

 

*“Rule904”* means Rule 904 promulgated under the Securities Act.

 

*“SEC”*means the Securities and Exchange Commission.

 

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

 

“*Senior Debt toCash Flow Ratio*” means, with respect to any specified Person as ofany date of determination, the ratio of (a) the Consolidated Indebtedness ofsuch Person as of such date, excluding any such Indebtedness that by its termsis expressly subordinated in right of payment to the Notes or any Guarantee, to(b) the Annualized Consolidated Cash Flow of such Person for the two mostrecent full fiscal quarters for which internal financial statements areavailable prior to such date of determination, determined on a pro forma basisafter giving effect to all acquisitions or dispositions of assets made by suchPerson and its Restricted Subsidiaries from the beginning of such two-quarterperiod through and including such date of determination (including any relatedfinancing transactions) as if such acquisitions and dispositions (and relatedfinancing transactions) had occurred at the beginning of such two-quarter period.

 

In addition, for purposes of calculating the SeniorDebt to Cash Flow Ratio:

 

(1) acquisitions that have been made by the specifiedPerson or any of its Restricted Subsidiaries, including through mergers orconsolidations, or any Person or any of its Restricted Subsidiaries acquired bythe specified Person or any of its Restricted Subsidiaries, and includingincreases in ownership of Restricted Subsidiaries, during the two-quarterreference period or subsequent to such reference period and on or prior to thedate on which the event for which the calculation of the Senior Debt to CashFlow Ratio is made (the “Calculation Date”) will be given pro forma effect(determined in good faith on a reasonable basis in accordance with RegulationS-X under the Securities Act by a responsible financial or accounting officerof the specified person) as if they had occurred on the first day of thetwo-quarter reference period and Consolidated Cash Flow for such referenceperiod shall be calculated without giving effect to clause (3) of the provisoset forth in the definition of Consolidated Net Income;

 

(2) the Consolidated Cash Flow attributable todiscontinued operations, as determined in accordance with GAAP, and operationsor businesses (and ownership interests therein) disposed of prior to theCalculation Date, will be excluded;

 

(3) any Person that is a Restricted Subsidiary on theCalculation Date will be deemed to have been a Restricted Subsidiary at alltimes during such two-quarter period; and

 

(4) any Person that is not a Restricted Subsidiary onthe Calculation Date will be deemed not to have been a Restricted Subsidiary atany time during such two-quarter period.

 

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

 

*“SignificantSubsidiary”* means any Subsidiary that would be a “significantsubsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgatedpursuant to the Securities Act, as such Regulation is in effect on the date ofthis Indenture.

 

17

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“*Stated Maturity*” means, with respect toany installment of interest or principal on any series of Indebtedness, thedate on which the payment of interest or principal was scheduled to be paid inthe documentation governing such Indebtedness as of the date of this Indenture,and will not include any contingent obligations to repay, redeem or repurchaseany such interest or principal prior to the date originally scheduled for thepayment thereof.

 

* “Subsidiary”* means, withrespect to any specified Person:

 

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

####  

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

####  

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

 

*“Trustee”*means The Bank of New York until a successor replaces it in accordance with theapplicable provisions of this Indenture and thereafter means the successorserving hereunder.

 

*“UnrestrictedDefinitive Note”* means a Definitive Note that does not bearand is not required to bear the Private Placement Legend.

 

*“UnrestrictedGlobal Note”* means a Global Note that does not bear and isnot required to bear the Private Placement Legend.

 

“*UnrestrictedSubsidiary*” means any Subsidiary of the Company that is designatedby the Board of Directors of the Company as an Unrestricted Subsidiary pursuantto a resolution of the Board of Directors, but only to the extent that suchSubsidiary:

 

(1)  has no Indebtedness other than Non-RecourseDebt;

 

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

 

(3)  is a Person with respect to which neitherthe Company nor any of its Restricted Subsidiaries has any direct or indirectobligation (a) to subscribe for additional Equity Interests or (b) to maintainor preserve such Person’s financial condition or to cause such Person toachieve any specified levels of operating results; and

 

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

 

18

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

 

*“VotingStock”* of any specified Person as of any date means theCapital Stock of such Person that is at the time entitled to vote in theelection of the Board of Directors of such Person.

 

*“WeightedAverage Life to Maturity”* means, when applied to anyIndebtedness at any date, the number of years obtained by dividing:

 

#### (1) thesum of the products obtained by multiplying (a) the amount of each thenremaining installment, sinking fund, serial maturity or other required paymentsof principal, including payment at final maturity, in respect of theIndebtedness, by (b) the number of years (calculated to the nearestone-twelfth) that will elapse between such date and the making of such payment;*by*

####  

#### (2) thethen outstanding principal amount of such Indebtedness.

####  

## *Section 1.02          *Other Definitions.

 

| **Term**                                      |   | **Defined in  Section** |   |
|-----------------------------------------------|--------|-------------------------|--------|
| *“Affiliate  Transaction”*          |   | 4.11                    |   |
| *“Asset  Sale Offer”*               |   | 3.09                    |   |
| *“Authentication  Order”*           |   | 2.02                    |   |
| *“Change  of Control Offer”*        |   | 4.15                    |   |
| *“Change  of Control Payment”*      |   | 4.15                    |   |
| *“Change  of Control Payment Date”* |   | 4.15                    |   |
| *“Covenant  Defeasance”*            |   | 8.03                    |   |
| *“DTC”*                             |   | 2.03                    |   |
| *“Event  of Default”*               |   | 6.01                    |   |
| *“Excess  Proceeds”*                |   | 4.10                    |   |
| *“incur”*                           |   | 4.09                    |   |
| *“Legal  Defeasance”*               |   | 8.02                    |   |
| *“Offer  Amount”*                   |   | 3.09                    |   |
| *“Offer  Period”*                   |   | 3.09                    |   |
| *“Paying  Agent”*                   |   | 2.03                    |   |
| *“Permitted  Debt”*                 |   | 4.09                    |   |
| *“Payment  Default”*                |   | 6.01                    |   |
| *“Purchase  Date”*                  |   | 3.09                    |   |
| *“Registrar”*                       |   | 2.03                    |   |
| *“Restricted  Payments”*            |   | 4.07                    |   |

 

## *Section 1.03          *Incorporation by Reference of TrustIndenture Act.

## * *

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

 

The following TIA terms used in this Indenture havethe following meanings:

 

*“indenturesecurities”* means the Notes;

 

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*“indenturesecurity Holder”* means a Holder of a Note;

 

*“indentureto be qualified”* means this Indenture;

 

*“indenturetrustee”* or *“institutional trustee”* means the Trustee;and

 

*“obligor”*on the Notes and the Guarantees means the Company and the Guarantors,respectively, and any successor obligor upon the Notes and the Guarantees,respectively.

 

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

 

## *Section 1.04          *Rules ofConstruction.

## * *

Unless the context otherwise requires:

 

#### (1) aterm has the meaning assigned to it;

####  

#### (2) anaccounting term not otherwise defined has the meaning assigned to it inaccordance with GAAP;

####  

#### (3) “or”is not exclusive;

####  

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

####  

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

####  

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

####  

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

####  

# **ARTICLE 2**THE NOTES

#  

## *Section 2.01          *Form and Dating.

## * *

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

###  

The terms and provisions contained in the Notes willconstitute, and are hereby expressly made, a part of this Indenture and theCompany, the Guarantors and the Trustee, by their execution and delivery ofthis Indenture, expressly agree to such terms and provisions and to be boundthereby.  However, to the extent anyprovision of any Note conflicts with the express provisions of this Indenture,the provisions of this Indenture shall govern and be controlling.

 

### (b)           *Global Notes*.  Notes issued in global form will besubstantially in the form of Exhibit A hereto (including the Global Note Legendthereon and the “Schedule of Exchanges of Interests in the Global Note”attached thereto).  Notes issued indefinitive form will be substantially in the form of

 

20

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Exhibit A hereto (but without the Global Note Legend thereon andwithout the “Schedule of Exchanges of Interests in the Global Note” attachedthereto).  Each Global Note willrepresent such of the outstanding Notes as will be specified therein and eachshall provide that it represents the aggregate principal amount of outstandingNotes from time to time endorsed thereon and that the aggregate principalamount of outstanding Notes represented thereby may from time to time bereduced or increased, as appropriate, to reflect exchanges andredemptions.  Any endorsement of aGlobal Note to reflect the amount of any increase or decrease in the aggregate principalamount of outstanding Notes represented thereby will be made by the Trustee orthe Custodian, at the direction of the Trustee, in accordance with instructionsgiven by the Holder thereof as required by Section 2.06 hereof.

###  

### (c)           *Euroclearand Clearstream Procedures Applicable.*  The provisions of the “Operating Procedures of the EuroclearSystem” and “Terms and Conditions Governing Use of Euroclear” and the “GeneralTerms and Conditions of Clearstream Banking” and “Customer Handbook” ofClearstream will be applicable to transfers of beneficial interests in theRegulation S Global Note that are held by Participants through Euroclear orClearstream.

###  

## *Section 2.02          *Executionand Authentication.

## * *

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

 

If an Officer whose signature is on a Note no longerholds that office at the time a Note is authenticated, the Note willnevertheless be valid.

 

A Note will not be valid until authenticated by themanual signature of the Trustee.  Thesignature will be conclusive evidence that the Note has been authenticatedunder this Indenture.

 

The Trustee will, upon receipt of a written order ofthe Company signed by at least two Officers (an “*Authentication Order*”),authenticate Notes for original issue that may be validly issued under thisIndenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may notexceed the aggregate principal amount of Notes authorized for issuance by theCompany pursuant to one or more Authentication Orders, except as provided inSection 2.07 hereof.

 

The Trustee may appoint an authenticating agentacceptable to the Company to authenticate Notes.  An authenticating agent may authenticate Notes whenever theTrustee may do so.  Each reference inthis Indenture to authentication by the Trustee includes authentication by suchagent.  An authenticating agent has thesame rights as an Agent to deal with Holders or an Affiliate of the Company.

 

## *Section 2.03          *Registrarand Paying Agent.

## * *

The Company will maintain an office or agency whereNotes may be presented for registration of transfer or for exchange (“*Registrar*”)and an office or agency where Notes may be presented for payment (“*Paying Agent*”).  The Registrar will keep a register of theNotes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or moreadditional paying agents.  The term“Registrar” includes any co-registrar and the term “Paying Agent” includes anyadditional paying agent.  The Companymay change any Paying Agent or Registrar without notice to any Holder.  The Company will notify the Trustee inwriting of the name and address of any Agent not a party to thisIndenture.  If the Company fails toappoint or maintain another entity as Registrar or Paying Agent, the Trusteeshall act as such.  The Company or anyof its Subsidiaries may act as Paying Agent or Registrar.

 

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

 

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

 

## *Section 2.04          *Paying Agent to Hold Money in Trust.

## * *

The Company will require each Paying Agent other thanthe Trustee to agree in writing that the Paying Agent will hold in trust forthe benefit of Holders or the Trustee all money held by the Paying Agent forthe payment of principal, premium or Liquidated Damages, if any, or interest onthe Notes, and will notify the Trustee of any default by the Company in makingany such payment.  While any suchdefault continues, the Trustee may require a Paying Agent to pay all money heldby it to the Trustee.  The Company atany time may require a Paying Agent to pay all money held by it to theTrustee.  Upon payment over to theTrustee, the Paying Agent (if other than the Company or a Subsidiary) will haveno further liability for the money.  Ifthe Company or a Subsidiary acts as Paying Agent, it will segregate and hold ina separate trust fund for the benefit of the Holders all money held by it asPaying Agent.  Upon any bankruptcy orreorganization proceedings relating to the Company, the Trustee will serve asPaying Agent for the Notes.

 

## *Section 2.05          *Holder Lists.

## * *

The Trustee will preserve in as current a form as isreasonably practicable the most recent list available to it of the names andaddresses of all Holders and shall otherwise comply with TIA§ 312(a).  If the Trustee is notthe Registrar, the Company will furnish to the Trustee at least seven BusinessDays before each interest payment date and at such other times as the Trusteemay request in writing, a list in such form and as of such date as the Trusteemay reasonably require of the names and addresses of the Holders of Notes andthe Company shall otherwise comply with TIA § 312(a).

 

## *Section 2.06          *Transfer andExchange.

## * *

### (a)           *Transfer andExchange of Global Notes*.  AGlobal Note may not be transferred except as a whole by the Depositary to anominee of the Depositary, by a nominee of the Depositary to the Depositary orto another nominee of the Depositary, or by the Depositary or any such nomineeto a successor Depositary or a nominee of such successor Depositary.  All Global Notes will be exchanged by theCompany for Definitive Notes if:

###  

#### (1) theCompany delivers to the Trustee notice from the Depositary that it is unwillingor unable to continue to act as Depositary or that it is no longer a clearingagency registered under the Exchange Act and, in either case, a successorDepositary is not appointed by the Company within 120 days after the date ofsuch notice from the Depositary;

####  

#### (2) theCompany in its sole discretion determines that the Global Notes (in whole butnot in part) should be exchanged for Definitive Notes and delivers a writtennotice to such effect to the Trustee; or

####  

#### (3)there has occurred and is continuing a Default or Event of Default with respectto the Notes.

####  

Upon the occurrence of either of the preceding eventsin (1) or (2) above, Definitive Notes shall be issued in such names as theDepositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, asprovided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, aGlobal Note or any portion thereof, pursuant to this Section 2.06 or Section2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, andshall be, a

 

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Global Note.  A Global Note maynot be exchanged for another Note other than as provided in this Section2.06(a), however, beneficial interests in a Global Note may be transferred andexchanged as provided in Section 2.06(b), (c) or (f) hereof.

 

### (b)           *Transfer andExchange of Beneficial Interests in the Global Notes*.  The transfer and exchange of beneficialinterests in the Global Notes will be effected through the Depositary, inaccordance with the provisions of this Indenture and the ApplicableProcedures.  Beneficial interests in theRestricted Global Notes will be subject to restrictions on transfer comparableto those set forth herein to the extent required by the Securities Act.  Transfers of beneficial interests in theGlobal Notes also will require compliance with either subparagraph (1) or (2)below, as applicable, as well as one or more of the other followingsubparagraphs, as applicable:

###  

#### (1) *Transfer ofBeneficial Interests in the Same Global Note*.  Beneficial interests in any RestrictedGlobal Note may be transferred to Persons who take delivery thereof in the formof a beneficial interest in the same Restricted Global Note in accordance withthe transfer restrictions set forth in the Private Placement Legend; *provided,however*, that prior to the expiration of the Restricted Period,transfers of beneficial interests in the Regulation S Global Note may not bemade to a U.S. Person or for the account or benefit of a U.S. Person (otherthan an Initial Purchaser). Beneficial interests in any Unrestricted GlobalNote may be transferred to Persons who take delivery thereof in the form of abeneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be required to be deliveredto the Registrar to effect the transfers described in this Section 2.06(b)(1).

####  

#### (2) *All OtherTransfers and Exchanges of Beneficial Interests in Global Notes.*  In connection with all transfers andexchanges of beneficial interests that are not subject to Section 2.06(b)(1)above, the transferor of such beneficial interest must deliver to the Registrareither:

####  

###### (A)  both:

######  

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

 

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

 

###### (B)   both:

######  

(i)            a written order from a Participantor an Indirect Participant given to the Depositary in accordance with theApplicable Procedures directing the Depositary to cause to be issued a DefinitiveNote in an amount equal to the beneficial interest to be transferred orexchanged; and

 

(ii)           instructions given by the Depositaryto the Registrar containing information regarding the Person in whose name suchDefinitive Note shall be registered to effect the transfer or exchange referredto in (1) above.

 

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Upon consummation of an Exchange Offer by the Companyin accordance with Section 2.06(f) hereof, the requirements of this Section2.06(b)(2) shall be deemed to have been satisfied upon receipt by the Registrarof the instructions contained in the Letter of Transmittal delivered by theHolder of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirementsfor transfer or exchange of beneficial interests in Global Notes contained inthis Indenture and the Notes or otherwise applicable under the Securities Act,the Trustee shall adjust the principal amount of the relevant Global Note(s)pursuant to Section 2.06(h) hereof.

 

#### (3) *Transfer ofBeneficial Interests to Another Restricted Global Note.*  A beneficial interest in any RestrictedGlobal Note may be transferred to a Person who takes delivery thereof in theform of a beneficial interest in another Restricted Global Note if the transfercomplies with the requirements of Section 2.06(b)(2) above and the Registrarreceives the following:

####  

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

######  

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

######  

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

######  

#### (4) *Transfer andExchange of Beneficial Interests in a Restricted Global Note for BeneficialInterests in an Unrestricted Global Note.*  A beneficial interest in any Restricted Global Note may beexchanged by any holder thereof for a beneficial interest in an UnrestrictedGlobal Note or transferred to a Person who takes delivery thereof in the formof a beneficial interest in an Unrestricted Global Note if the exchange ortransfer complies with the requirements of Section 2.06(b)(2) above and:

####  

###### (A)  such exchange or transfer is effected pursuantto the Exchange Offer in accordance with the Registration Rights Agreement and theholder of the beneficial interest to be transferred, in the case of anexchange, or the transferee, in the case of a transfer, certifies in theapplicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) aPerson participating in the distribution of the Exchange Notes or (iii) aPerson who is an affiliate (as defined in Rule 144) of the Company;

######  

###### (B)   such transfer is effected pursuant to theShelf Registration Statement in accordance with the Registration RightsAgreement;

######  

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

######  

###### (D)  the Registrar receives the following:

 

(i)            if theholder of such beneficial interest in a Restricted Global Note proposes toexchange such beneficial interest for a beneficial interest in an

 

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UnrestrictedGlobal Note, a certificate from such holder in the form of Exhibit C hereto,including the certifications in item (1)(a) thereof; or

 

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

 

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

 

If any such transfer is effected pursuant tosubparagraph (B) or (D) above at a time when an Unrestricted Global Note hasnot yet been issued, the Company shall issue and, upon receipt of anAuthentication Order in accordance with Section 2.02 hereof, the Trustee shallauthenticate one or more Unrestricted Global Notes in an aggregate principalamount equal to the aggregate principal amount of beneficial intereststransferred pursuant to subparagraph (B) or (D) above.

 

Beneficial interests in an Unrestricted Global Notecannot be exchanged for, or transferred to Persons who take delivery thereof inthe form of, a beneficial interest in a Restricted Global Note.

 

### (c)   *Transfer or Exchange of Beneficial Interests forDefinitive Notes.*

###  

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

####  

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

######  

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

######  

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

######  

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

 

25

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###### (E)   if such beneficial interest is beingtransferred to an Institutional Accredited Investor in reliance on an exemptionfrom the registration requirements of the Securities Act other than thoselisted in subparagraphs (B) through (D) above, a certificate to the effect setforth in Exhibit B hereto, including the certifications, certificates andOpinion of Counsel required by item (3) thereof, if applicable;

######  

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

######  

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

######  

the Trustee shall cause the aggregate principal amountof the applicable Global Note to be reduced accordingly pursuant to Section2.06(h) hereof, and the Company shall execute and the Trustee shallauthenticate and deliver to the Person designated in the instructions aDefinitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interestin a Restricted Global Note pursuant to this Section 2.06(c) shall beregistered in such name or names and in such authorized denomination ordenominations as the holder of such beneficial interest shall instruct theRegistrar through instructions from the Depositary and the Participant or IndirectParticipant.  The Trustee shall deliversuch Definitive Notes to the Persons in whose names such Notes are soregistered.  Any Definitive Note issuedin exchange for a beneficial interest in a Restricted Global Note pursuant tothis Section 2.06(c)(1) shall bear the Private Placement Legend and shall besubject to all restrictions on transfer contained therein.

 

#### (2) *BeneficialInterests in Restricted Global Notes to Unrestricted Definitive Notes.*  A holder of a beneficial interest in aRestricted Global Note may exchange such beneficial interest for anUnrestricted Definitive Note or may transfer such beneficial interest to aPerson who takes delivery thereof in the form of an Unrestricted DefinitiveNote only if:

####  

###### (A)  such exchange or transfer is effected pursuantto the Exchange Offer in accordance with the Registration Rights Agreement andthe holder of such beneficial interest, in the case of an exchange, or thetransferee, in the case of a transfer, certifies in the applicable Letter ofTransmittal that it is not (i) a Broker-Dealer, (ii) a Person participating inthe distribution of the Exchange Notes or (iii) a Person who is an affiliate(as defined in Rule 144) of the Company;

######  

###### (B)   such transfer is effected pursuant to theShelf Registration Statement in accordance with the Registration RightsAgreement;

######  

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

######  

###### (D)  the Registrar receives the following:

######  

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

 

26

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

 

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

 

#### (3) *BeneficialInterests in Unrestricted Global Notes to Unrestricted Definitive Notes.*  If any holder of a beneficial interest in anUnrestricted Global Note proposes to exchange such beneficial interest for aDefinitive Note or to transfer such beneficial interest to a Person who takesdelivery thereof in the form of a Definitive Note, then, upon satisfaction ofthe conditions set forth in Section 2.06(b)(2) hereof, the Trustee will causethe aggregate principal amount of the applicable Global Note to be reducedaccordingly pursuant to Section 2.06(h) hereof, and the Company will executeand the Trustee will authenticate and deliver to the Person designated in theinstructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for abeneficial interest pursuant to this Section 2.06(c)(3) will be registered insuch name or names and in such authorized denomination or denominations as theholder of such beneficial interest requests through instructions to theRegistrar from or through the Depositary and the Participant or IndirectParticipant.  The Trustee will deliversuch Definitive Notes to the Persons in whose names such Notes are soregistered.  Any Definitive Note issuedin exchange for a beneficial interest pursuant to this Section 2.06(c)(3) willnot bear the Private Placement Legend.

####  

### (d)   *Transfer and Exchange of Definitive Notes forBeneficial Interests.*

###  

#### (1) *RestrictedDefinitive Notes to Beneficial Interests in Restricted Global Notes.*  If any Holder of a Restricted DefinitiveNote proposes to exchange such Note for a beneficial interest in a RestrictedGlobal Note or to transfer such Restricted Definitive Notes to a Person whotakes delivery thereof in the form of a beneficial interest in a RestrictedGlobal Note, then, upon receipt by the Registrar of the followingdocumentation:

####  

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

######  

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

######  

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

######  

###### (D)  if such Restricted Definitive Note is beingtransferred pursuant to an exemption from the registration requirements of theSecurities Act in accordance with

 

27

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###### Rule144, a certificate to the effect set forth in Exhibit B hereto, including thecertifications in item (3)(a) thereof;

######  

###### (E)   if such Restricted Definitive Note is beingtransferred to an Institutional Accredited Investor in reliance on an exemptionfrom the registration requirements of the Securities Act other than thoselisted in subparagraphs (B) through (D) above, a certificate to the effect setforth in Exhibit B hereto, including the certifications, certificates andOpinion of Counsel required by item (3) thereof, if applicable;

######  

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

######  

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

######  

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

 

#### (2) *RestrictedDefinitive Notes to Beneficial Interests in Unrestricted Global Notes.*  A Holder of a Restricted Definitive Note mayexchange such Note for a beneficial interest in an Unrestricted Global Note ortransfer such Restricted Definitive Note to a Person who takes delivery thereofin the form of a beneficial interest in an Unrestricted Global Note only if:

####  

###### (A)  such exchange or transfer is effected pursuantto the Exchange Offer in accordance with the Registration Rights Agreement andthe Holder, in the case of an exchange, or the transferee, in the case of a transfer,certifies in the applicable Letter of Transmittal that it is not (i) aBroker-Dealer, (ii) a Person participating in the distribution of the ExchangeNotes or (iii) a Person who is an affiliate (as defined in Rule 144) of theCompany;

######  

###### (B)   such transfer is effected pursuant to theShelf Registration Statement in accordance with the Registration RightsAgreement;

######  

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

######  

###### (D)  the Registrar receives the following:

######  

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

 

(ii)           if theHolder of such Definitive Notes proposes to transfer such Notes to a Person whoshall take delivery thereof in the form of a beneficial

 

28

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interestin the Unrestricted Global Note, a certificate from such Holder in the form ofExhibit B hereto, including the certifications in item (4) thereof;

 

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

 

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

 

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

####  

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

 

### (e)   *Transfer and Exchange of Definitive Notes forDefinitive Notes.*  Uponrequest by a Holder of Definitive Notes and such Holder’s compliance with theprovisions of this Section 2.06(e), the Registrar will register the transfer orexchange of Definitive Notes.  Prior tosuch registration of transfer or exchange, the requesting Holder must presentor surrender to the Registrar the Definitive Notes duly endorsed or accompaniedby a written instruction of transfer in form satisfactory to the Registrar dulyexecuted by such Holder or by its attorney, duly authorized in writing.  In addition, the requesting Holder mustprovide any additional certifications, documents and information, asapplicable, required pursuant to the following provisions of this Section2.06(e).

###  

#### (1) *RestrictedDefinitive Notes to Restricted Definitive Notes.*  Any Restricted Definitive Note may betransferred to and registered in the name of Persons who take delivery thereofin the form of a Restricted Definitive Note if the Registrar receives thefollowing:

####  

###### (A)  if the transfer will be made pursuant to Rule144A, then the transferor must deliver a certificate in the form of Exhibit Bhereto, including the certifications in item (1) thereof;

######  

###### (B)   if the transfer will be made pursuant to Rule903 or Rule 904, then the transferor must deliver a certificate in the form ofExhibit B hereto, including the certifications in item (2) thereof; and

 

29

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

######  

#### (2) *RestrictedDefinitive Notes to Unrestricted Definitive Notes.*  Any Restricted Definitive Note may beexchanged by the Holder thereof for an Unrestricted Definitive Note ortransferred to a Person or Persons who take delivery thereof in the form of anUnrestricted Definitive Note if:

####  

###### (A)  such exchange or transfer iseffected pursuant to the Exchange Offer in accordance with the RegistrationRights Agreement and the Holder, in the case of an exchange, or the transferee,in the case of a transfer, certifies in the applicable Letter of Transmittalthat it is not (i) a Broker-Dealer, (ii) a Person participating in thedistribution of the Exchange Notes or (iii) a Person who is an affiliate (asdefined in Rule 144) of the Company;

######  

###### (B)   any such transfer is effectedpursuant to the Shelf Registration Statement in accordance with theRegistration Rights Agreement;

######  

###### (C)   any such transfer is effected by aBroker-Dealer pursuant to the Exchange Offer Registration Statement inaccordance with the Registration Rights Agreement; or

######  

###### (D)  the Registrar receives thefollowing:

######  

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

 

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

 

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

 

#### (3) *UnrestrictedDefinitive Notes to Unrestricted Definitive Notes.*  A Holder of Unrestricted Definitive Notesmay transfer such Notes to a Person who takes delivery thereof in the form ofan Unrestricted Definitive Note.  Uponreceipt of a request to register such a transfer, the Registrar shall registerthe Unrestricted Definitive Notes pursuant to the instructions from the Holderthereof.

####  

### (f)    *Exchange Offer.*  Upon theoccurrence of the Exchange Offer in accordance with the Registration RightsAgreement, the Company will issue and, upon receipt of an Authentication Orderin accordance with Section 2.02 hereof, the Trustee will authenticate:

 

30

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

####  

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

####  

Concurrently with the issuance of such Notes, theTrustee will cause the aggregate principal amount of the applicable RestrictedGlobal Notes to be reduced accordingly, and the Company will execute and theTrustee will authenticate and deliver to the Persons designated by the Holdersof Definitive Notes so accepted Unrestricted Definitive Notes in theappropriate principal amount.

 

### (g)   *Legends.*  The followinglegends will appear on the face of all Global Notes and Definitive Notes issuedunder this Indenture unless specifically stated otherwise in the applicableprovisions of this Indenture.

###  

#### (1) *Private Placement Legend*.

####  

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

######  

“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUEDIN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATESSECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND THE SECURITYEVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THEABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACHPURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLERMAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THESECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THEBENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE OFFERED, RESOLD, PLEDGED OROTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A PERSON WHO THESELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OFRULE 144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION INACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A TRANSACTION MEETINGTHE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL‘‘ACCREDITED INVESTOR’’ (AS DEFINED IN RULE 501 (a) (1), (2), (3) OR (7) OF THESECURITIES ACT (AN ‘‘INSTITUTIONAL ACCREDITED INVESTOR’’)) THAT, PRIOR TO SUCHTRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAINREPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THETRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNTOF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO UBIQUITEL OPERATINGCOMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) INACCORDANCE WITH ANOTHER EXEMPTION FROM THE

 

31

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REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON ANOPINION OF COUNSEL IF UBIQUITEL OPERATING COMPANY SO REQUESTS), (2) TOUBIQUITEL OPERATING COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATIONSTATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWSOF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANYPURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONSSET FORTH IN (A) ABOVE.”

 

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

######  

#### (2) *Global NoteLegend*.  Each Global Notewill bear a legend in substantially the following form:

####  

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (ASDEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THEBENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSONUNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONSHEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THISGLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEEFOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBALNOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENTOF THE COMPANY.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PARTFOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS AWHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THEDEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THEDEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCHSUCCESSOR DEPOSITARY.  UNLESS THISCERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORYTRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY ORITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANYCERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHERNAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANYPAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BYAN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOFFOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THEREGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

(h)   *Cancellationand/or Adjustment of Global Notes.* At such time as all beneficial interests in a particular Global Notehave been exchanged for Definitive Notes or a particular Global Note has beenredeemed, repurchased or canceled in whole and not in part, each such GlobalNote will be returned to or retained and canceled by the Trustee in accordancewith Section 2.11 hereof.  At any timeprior to such cancellation, if any beneficial interest in a Global Note isexchanged for or transferred to a Person who will take delivery thereof in theform of a beneficial interest in another Global Note or for Definitive

 

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Notes, theprincipal amount of Notes represented by such Global Note will be reducedaccordingly and an endorsement will be made on such Global Note by the Trusteeor by the Depositary at the direction of the Trustee to reflect such reduction;and if the beneficial interest is being exchanged for or transferred to aPerson who will take delivery thereof in the form of a beneficial interest inanother Global Note, such other Global Note will be increased accordingly andan endorsement will be made on such Global Note by the Trustee or by theDepositary at the direction of the Trustee to reflect such increase.

###  

### (i)    *General Provisions Relating to Transfers and Exchanges.*

###  

#### (1) Topermit registrations of transfers and exchanges, the Company will execute andthe Trustee will authenticate Global Notes and Definitive Notes upon receipt ofan Authentication Order in accordance with Section 2.02 hereof or at theRegistrar’s request.

####  

#### (2) Noservice charge will be made to a Holder of a beneficial interest in a GlobalNote or to a Holder of a Definitive Note for any registration of transfer orexchange, but the Company may require payment of a sum sufficient to cover anytransfer tax or similar governmental charge payable in connection therewith(other than any such transfer taxes or similar governmental charge payable uponexchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05hereof).

####  

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

####  

#### (4) AllGlobal Notes and Definitive Notes issued upon any registration of transfer orexchange of Global Notes or Definitive Notes will be the valid obligations ofthe Company, evidencing the same debt, and entitled to the same benefits underthis Indenture, as the Global Notes or Definitive Notes surrendered upon suchregistration of transfer or exchange.

####  

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

####  

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

######  

###### (B)   to register the transfer of or to exchangeany Note selected for redemption in whole or in part, except the unredeemedportion of any Note being redeemed in part; or

######  

###### (C) toregister the transfer of or to exchange a Note between a record date and thenext succeeding interest payment date.

######  

#### (6)Prior to due presentment for the registration of a transfer of any Note, theTrustee, any Agent and the Company may deem and treat the Person in whose nameany Note is registered as the absolute owner of such Note for the purpose ofreceiving payment of principal of and interest on such Notes and for all otherpurposes, and none of the Trustee, any Agent or the Company shall be affectedby notice to the contrary.

####  

#### (7) TheTrustee will authenticate Global Notes and Definitive Notes in accordance withthe provisions of Section 2.02 hereof.

 

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

####  

## *Section 2.07*           Replacement Notes.

## * *

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

 

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

 

## *Section 2.08*           Outstanding Notes.

## * *

The Notes outstanding at any time are all the Notesauthenticated by the Trustee except for those canceled by it, those deliveredto it for cancellation, those reductions in the interest in a Global Noteeffected by the Trustee in accordance with the provisions hereof, and thosedescribed in this Section 2.08 as not outstanding.  Except as set forth in Section 2.09 hereof, a Note does not ceaseto be outstanding because the Company or an Affiliate of the Company holds theNote; however, Notes held by the Company or a Subsidiary of the Company shallnot be deemed to be outstanding for purposes of Section 3.07(a) hereof.

 

If a Note is replaced pursuant to Section 2.07 hereof,it will be deemed outstanding only if the Trustee receives proof satisfactoryto it that the replaced Note is held by a protected purchaser within themeaning of Section 8-303 of the New York Uniform Commercial Code.

 

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

 

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

 

## *Section 2.09*           Treasury Notes.

## * *

In determining whether the Holders of the requiredprincipal amount of Notes have concurred in any direction, waiver or consent,Notes owned by the Company or any Guarantor, or by any Person directly orindirectly controlling or controlled by or under direct or indirect commoncontrol with the Company or any Guarantor, will be considered as though notoutstanding, except that for the purposes of determining whether the Trusteewill be protected in relying on any such direction, waiver or consent, onlyNotes that the Trustee knows are so owned will be so disregarded.

 

## *Section 2.10*           Temporary Notes.

## * *

Until certificates representing Notes are ready fordelivery, the Company may prepare and the Trustee, upon receipt of anAuthentication Order, will authenticate temporary Notes.  Temporary Notes

 

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will be substantially in the form of certificated Notes but may havevariations that the Company considers appropriate for temporary Notes and asmay be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trusteewill authenticate definitive Notes in exchange for temporary Notes.

 

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

 

## *Section 2.11*           Cancellation.

## * *

The Company at any time may deliver Notes to theTrustee for cancellation.  The Registrarand Paying Agent will forward to the Trustee any Notes surrendered to them forregistration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered forregistration of transfer, exchange, payment, replacement or cancellation andwill dispose of canceled Notes in accordance with its customary procedures(subject to the record retention requirement of the Exchange Act).  The Company may not issue new Notes toreplace Notes that it has paid or that have been delivered to the Trustee forcancellation.

 

## *Section 2.12*           Defaulted Interest.

## * *

If the Company defaults in a payment of interest onthe Notes, it will pay the defaulted interest in any lawful manner plus, to theextent lawful, interest payable on the defaulted interest, to the Persons whoare Holders on a subsequent special record date, in each case at the rateprovided in the Notes and in Section 4.01 hereof.  The Company will notify the Trustee in writing of the amount ofdefaulted interest proposed to be paid on each Note and the date of theproposed payment.  The Company will fixor cause to be fixed each such special record date and payment date; *provided*that no such special record date may be less than 10 days prior to the relatedpayment date for such defaulted interest. At least 15 days before the special record date, the Company (or, uponthe written request of the Company, the Trustee in the name and at the expenseof the Company) will mail or cause to be mailed to Holders a notice that statesthe special record date, the related payment date and the amount of suchinterest to be paid.

 

# **ARTICLE 3**REDEMPTION AND PREPAYMENT

#  

## *Section 3.01*           Notices to Trustee.

## * *

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

 

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

####  

#### (2) theredemption date;

####  

#### (3) theprincipal amount of Notes to be redeemed; and

####  

#### (4) theredemption price.

####  

## *Section 3.02*           Selection of Notes to Be Redeemed orPurchased.

## * *

If less than all of the Notes are to be redeemed orpurchased in an offer to purchase at any time, the Trustee will select Notesfor redemption or purchase on a *pro rata*basis except:

 

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#### (1) ifthe Notes are listed on any national securities exchange, in compliance withthe requirements of the principal national securities exchange on which theNotes are listed; or

####  

#### (2) ifotherwise required by law.

####  

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

 

The Trustee will promptly notify the Company inwriting of the Notes selected for redemption or purchase and, in the case ofany Note selected for partial redemption or purchase, the principal amountthereof to be redeemed or purchased. Notes and portions of Notes selected will be in amounts of $1,000 orwhole multiples of $1,000; except that if all of the Notes of a Holder are tobe redeemed or purchased, the entire outstanding amount of Notes held by suchHolder, even if not a multiple of $1,000, shall be redeemed or purchased.  Except as provided in the precedingsentence, provisions of this Indenture that apply to Notes called forredemption or purchase also apply to portions of Notes called for redemption orpurchase.

 

## *Section 3.03*           Notice of Redemption.

## * *

Subject to the provisions of Section 3.09 hereof, atleast 30 days but not more than 60 days before a redemption date, the Companywill mail or cause to be mailed, by first class mail, a notice of redemption toeach Holder whose Notes are to be redeemed at its registered address, exceptthat redemption notices may be mailed more than 60 days prior to a redemptiondate if the notice is issued in connection with a defeasance of the Notes or asatisfaction and discharge of this Indenture pursuant to Articles 8 or 11hereof.

 

The notice will identify the Notes to be redeemed(including the CUSIP number) and will state:

 

#### (1) theredemption date;

####  

#### (2) theredemption price;

####  

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

####  

#### (4) thename and address of the Paying Agent;

####  

#### (5) thatNotes called for redemption must be surrendered to the Paying Agent to collectthe redemption price;

####  

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

####  

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

 

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#### (8) thatno representation is made as to the correctness or accuracy of the CUSIPnumber, if any, listed in such notice or printed on the Notes.

####  

At the Company’s request, the Trustee will give thenotice of redemption in the Company’s name and at its expense; *provided,however*, that the Company has delivered to the Trustee, at least 45days prior to the redemption date, an Officers’ Certificate requesting that theTrustee give such notice and setting forth the information to be stated in suchnotice as provided in the preceding paragraph.

 

## *Section 3.04*           Effect of Notice of Redemption.

## * *

Once notice of redemption is mailed in accordance withSection 3.03 hereof, Notes called for redemption become irrevocably due andpayable on the redemption date at the redemption price.  A notice of redemption may not beconditional.

 

## *Section 3.05*           Deposit of Redemption or PurchasePrice.

## * *

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

 

If the Company complies with the provisions of thepreceding paragraph, on and after the redemption or purchase date, interestwill cease to accrue on the Notes or the portions of Notes called forredemption or purchase.  If a Note is redeemedor purchased on or after an interest record date but on or prior to the relatedinterest payment date, then any accrued and unpaid interest shall be paid tothe Person in whose name such Note was registered at the close of business onsuch record date.  If any Note calledfor redemption or purchase is not so paid upon surrender for redemption orpurchase because of the failure of the Company to comply with the precedingparagraph, interest shall be paid on the unpaid principal, from the redemptionor purchase date until such principal is paid, and to the extent lawful on anyinterest not paid on such unpaid principal, in each case at the rate providedin the Notes and in Section 4.01 hereof.

 

## *Section 3.06*           Notes Redeemed or Purchased in Part.

## * *

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

 

## *Section 3.07*           Optional Redemption.

## * *

### (a)   At any time prior to March 1, 2007,the Company may on any one or more occasions redeem up to 35% of the aggregateprincipal amount of Notes issued under this Indenture at a redemption price of109.875% of the principal amount thereof, plus accrued and unpaid interest andLiquidated Damages, if any, to the redemption date, with the net cash proceedsof a sale of Equity Interests (other than Disqualified Stock) of the Company ora contribution to the Company’s common equity capital; *provided* that:

 

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#### (1) atleast 65% of the aggregate principal amount of Notes originally issued underthis Indenture (excluding Notes held by the Company and its Subsidiaries)remains outstanding immediately after the occurrence of such redemption; and

####  

#### (2) theredemption occurs within 45 days of the date of the closing of such sale ofEquity Interests or contribution.

####  

### (b)   Except pursuant to the precedingparagraph, the Notes will not be redeemable at the Company’s option prior toMarch 1, 2007.

###  

### (c)   On or after March 1, 2007, theCompany may redeem all or a part of the Notes upon not less than 30 nor morethan 60 days’ notice, at the redemption prices (expressed as percentages ofprincipal amount) set forth below plus accrued and unpaid interest andLiquidated Damages, if any, on the Notes redeemed, to the applicable redemptiondate, if redeemed during the twelve-month period beginning on March 1stof the years indicated below, subject to the rights of Holders on the relevantrecord date to receive interest on the relevant interest payment date:

 
| **Year**             |   | **Percentage** |   |
|----------------------|--------|----------------|--------|
| 2007                 |   | 107.406        | %      |
| 2008                 |   | 104.938        | %      |
| 2009                 |   | 102.469        | %      |
| 2010 and  thereafter |   | 100.000        | %      |

 

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

 

### (d)   Any redemption pursuant to thisSection 3.07 shall be made pursuant to the provisions of Sections 3.01 through3.06 hereof.

###  

## *Section 3.08*           Mandatory Redemption.

## * *

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

 

## *Section 3.09*           Offer to Purchase by Application ofExcess Proceeds.

## * *

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

 

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

 

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If the Purchase Date is on or after an interest recorddate and on or before the related interest payment date, any accrued and unpaidinterest and Liquidated Damages, if any, will be paid to the Person in whosename a Note is registered at the close of business on such record date, and noadditional interest will be payable to Holders who tender Notes pursuant to theAsset Sale Offer.

 

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

 

#### (1) thatthe Asset Sale Offer is being made pursuant to this Section 3.09 and Section4.10 hereof and the length of time the Asset Sale Offer will remain open;

####  

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

####  

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

####  

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

####  

#### (5) thatHolders electing to have a Note purchased pursuant to an Asset Sale Offer mayelect to have Notes purchased in integral multiples of $1,000 only;

####  

#### (6) thatHolders electing to have Notes purchased pursuant to any Asset Sale Offer willbe required to surrender the Note, with the form entitled “Option of Holder toElect Purchase” attached to the Notes completed, or transfer by book-entrytransfer, to the Company, a Depositary, if appointed by the Company, or aPaying Agent at the address specified in the notice at least three days beforethe Purchase Date;

####  

#### (7) thatHolders will be entitled to withdraw their election if the Company, theDepositary or the Paying Agent, as the case may be, receives, not later thanthe expiration of the Offer Period, a telegram, telex, facsimile transmissionor letter setting forth the name of the Holder, the principal amount of theNote the Holder delivered for purchase and a statement that such Holder iswithdrawing his election to have such Note purchased;

####  

#### (8)that, if the aggregate principal amount of Notes and other *pari passu* Indebtednesssurrendered by holders thereof exceeds the Offer Amount, the Company willselect the Notes and other *pari passu* Indebtedness to be purchased ona *pro rata* basis based on theprincipal amount of Notes and such other *pari passu* Indebtedness surrendered (withsuch adjustments as may be deemed appropriate by the Company so that only Notesin denominations of $1,000, or integral multiples thereof, will be purchased);and

####  

#### (9) thatHolders whose Notes were purchased only in part will be issued new Notes equalin principal amount to the unpurchased portion of the Notes surrendered (ortransferred by book-entry transfer).

####  

On or before the Purchase Date, the Company will, tothe extent lawful, accept for payment, on a *prorata* basis to the extent necessary, the Offer Amount of Notes orportions thereof tendered pursuant to the Asset Sale Offer, or if less than theOffer Amount has been tendered, all Notes tendered, and will deliver or causeto be delivered to the Trustee the Notes properly accepted together with anOfficers’ Certificate stating that such Notes or portions thereof were acceptedfor payment by the Company in

 

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accordance with the terms of this Section 3.09.  The Company, the Depositary or the PayingAgent, as the case may be, will promptly (but in any case not later than fivedays after the Purchase Date) mail or deliver to each tendering Holder anamount equal to the purchase price of the Notes tendered by such Holder andaccepted by the Company for purchase, and the Company will promptly issue a newNote, and the Trustee, upon written request from the Company, will authenticateand mail or deliver (or cause to be transferred by book entry) such new Note tosuch Holder, in a principal amount equal to any unpurchased portion of the Notesurrendered.  Any Note not so acceptedshall be promptly mailed or delivered by the Company to the Holder thereof.  The Company will publicly announce theresults of the Asset Sale Offer on the Purchase Date.

 

Other than as specifically provided in this Section3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to theprovisions of Sections 3.01 through 3.06 hereof.

 

# **ARTICLE 4**COVENANTS

#  

## *Section 4.01*           Payment of Notes.

## * *

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

 

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

 

## *Section 4.02*           Maintenance of Office or Agency.

## * *

The Company will maintain in the Borough of Manhattan,the City of New York, an office or agency (which may be an office of theTrustee or an affiliate of the Trustee, Registrar or co-registrar) where Notesmay be surrendered for registration of transfer or for exchange and wherenotices and demands to or upon the Company in respect of the Notes and thisIndenture may be served.  The Companywill give prompt written notice to the Trustee of the location, and any changein the location, of such office or agency. If at any time the Company fails to maintain any such required office oragency or fails to furnish the Trustee with the address thereof, suchpresentations, surrenders, notices and demands may be made or served at theCorporate Trust Office of the Trustee.

 

The Company may also from time to time designate oneor more other offices or agencies where the Notes may be presented orsurrendered for any or all such purposes and may from time to time rescind suchdesignations; *provided, however*, that no such designation or rescissionwill in any manner relieve the Company of its obligation to maintain an officeor agency in the Borough of Manhattan, the City of New York for suchpurposes.  The Company will give promptwritten notice to the Trustee of any such designation or rescission and of anychange in the location of any such other office or agency.

 

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The Company hereby designates the Corporate TrustOffice of the Trustee as one such office or agency of the Company in accordancewith Section 2.03 hereof.

 

## *Section 4.03*           Reports.

## * *

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

###  

#### (1) allquarterly and annual reports that would be required to be filed with the SEC onForms 10-Q and 10-K if the Company were required to file such reports; and

####  

#### (2) allcurrent reports that would be required to be filed with the SEC on Form 8-K ifthe Company were required to file such reports.

####  

All such reports will be prepared in all materialrespects in accordance with all of the rules and regulations applicable to suchreports. Each annual report on Form 10-K will include a report on the Company’sconsolidated financial statements by the Company’s certified independentaccountants. In addition, the Company will file a copy of each of the reportsreferred to in clauses (1) and (2) above with the SEC for public availabilitywithin the time periods specified in the rules and regulations applicable tosuch reports (unless the SEC will not accept such a filing) and will post thereports on its website within those time periods.  The Company will at all times comply with TIA § 314(a).

 

If, at any time, the Company is no longer subject tothe periodic reporting requirements of the Exchange Act for any reason, theCompany will nevertheless continue filing the reports specified in thepreceding paragraphs of this Section 4.03 with the SEC within the time periodsspecified above unless the SEC will not accept such a filing. The Company willnot take any action for the purpose of causing the SEC not to accept any suchfilings. If, notwithstanding the foregoing, the SEC will not accept theCompany’s filings for any reason, the Company will post the reports referred toin the preceding paragraphs of this Section 4.03 on its website within the timeperiods that would apply if the Company were required to file those reportswith the SEC.

 

### (b)   If the Company has designated any ofits Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annualfinancial information required by paragraph (a) of this Section 4.03 willinclude a reasonably detailed presentation, either on the face of the financialstatements or in the footnotes thereto, and in Management’s Discussion andAnalysis of Financial Condition and Results of Operations, of the financialcondition and results of operations of the Company and its RestrictedSubsidiaries separate from the financial condition and results of operations ofthe Unrestricted Subsidiaries of the Company.

###  

### (c)   For so long as any Notes remainoutstanding, if at any time they are not required to file with the SEC thereports required by paragraphs (a) and (b) of this Section 4.03, the Companyand the Guarantors will furnish to the Holders and to securities analysts andprospective investors, upon their request, the information required to bedelivered pursuant to Rule 144A(d)(4) under the Securities Act.

###  

## *Section 4.04*           Compliance Certificate.

## * *

### (a)   The Company and each Guarantor (tothe extent that such Guarantor is so required under the TIA) shall deliver tothe 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 itsSubsidiaries during the preceding fiscal year has been made under thesupervision of the signing Officers with a view to determining whether theCompany has kept, observed, performed and fulfilled its obligations under thisIndenture, and further

 

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stating, as to each such Officer signing such certificate, that to thebest of his or her knowledge the Company has kept, observed, performed andfulfilled each and every covenant contained in this Indenture and is not indefault in the performance or observance of any of the terms, provisions andconditions of this Indenture (or, if a Default or Event of Default hasoccurred, describing all such Defaults or Events of Default of which he or shemay have knowledge and what action the Company is taking or proposes to takewith respect thereto) and that to the best of his or her knowledge no event hasoccurred and remains in existence by reason of which payments on account of theprincipal of or interest, if any, on the Notes is prohibited or if such eventhas occurred, a description of the event and what action the Company is takingor proposes to take with respect thereto.

###  

### (b)   So long as not contrary to the thencurrent recommendations of the American Institute of Certified PublicAccountants, the year-end financial statements delivered pursuant to Section4.03 above shall be accompanied by a written statement of the Company’sindependent public accountants (who shall be a firm of established nationalreputation) that in making the examination necessary for certification of suchfinancial statements, nothing has come to their attention that would lead themto believe that the Company has violated any provisions of Article 4 or Article5 hereof or, if any such violation has occurred, specifying the nature andperiod of existence thereof, it being understood that such accountants shallnot be liable directly or indirectly to any Person for any failure to obtainknowledge of any such violation.

###  

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

###  

## *Section 4.05*           Taxes.

## * *

The Company will pay, and will cause each of itsSubsidiaries to pay, prior to delinquency, all material taxes, assessments, andgovernmental levies except such as are contested in good faith and byappropriate proceedings or where the failure to effect such payment is notadverse in any material respect to the Holders of the Notes.

 

## *Section 4.06*           Stay, Extension and Usury Laws.

## * *

The Company and each of the Guarantors covenants (tothe extent that it may lawfully do so) that it will not at any time insistupon, plead, or in any manner whatsoever claim or take the benefit or advantageof, any stay, extension or usury law wherever enacted, now or at any timehereafter in force, that may affect the covenants or the performance of thisIndenture; and the Company and each of the Guarantors (to the extent that itmay lawfully do so) hereby expressly waives all benefit or advantage of anysuch law, and covenants that it will not, by resort to any such law, hinder,delay or impede the execution of any power herein granted to the Trustee, butwill suffer and permit the execution of every such power as though no such lawhas been enacted.

 

## *Section 4.07*           Restricted Payments.

## * *

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

###  

#### (1)declare or pay any dividend or make any other payment or distribution onaccount of the Company’s Equity Interests (including, without limitation, anypayment in connection with any merger or consolidation involving the Company)or to the direct or indirect holders of the

 

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#### Company’s Equity Interests in theircapacity as such (other than dividends or distributions payable in EquityInterests (other than Disqualified Stock) of the Company);

####  

#### (2)purchase, redeem or otherwise acquire or retire for value (including, withoutlimitation, in connection with any merger or consolidation involving theCompany) any Equity Interests of the Company or any direct or indirect parentof the Company;

####  

#### (3) makeany payment on or with respect to, or purchase, redeem, defease or otherwiseacquire or retire for value any Indebtedness of the Company or any Guarantorthat is contractually subordinated to the Notes or to any Guarantee (excludingany intercompany Indebtedness between or among the Company and any of itsRestricted Subsidiaries), except a payment of interest or principal at theStated Maturity thereof; or

####  

#### (4) makeany Restricted Investment (all such payments and other actions set forth inthese clauses (1) through (4) above being collectively referred to as “*RestrictedPayments*”),

####  

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

 

#### (1) noDefault or Event of Default has occurred and is continuing or would occur as aconsequence of such Restricted Payment;

####  

#### (2) theCompany would, at the time of such Restricted Payment and after giving proforma effect thereto as if such Restricted Payment had been made at thebeginning of the applicable two-quarter period, have been permitted to incur atleast $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratiotest set forth in Section 4.09(a) hereof; and

####  

#### (3) suchRestricted Payment, together with the aggregate amount of all other RestrictedPayments made by the Company and its Restricted Subsidiaries since the date ofthis Indenture (excluding Restricted Payments permitted by clauses (1), (2),(3), (5), (6), and (7) of paragraph (b) of this Section 4.07), is less than thesum, without duplication of:

####  

###### (A)  100% of the Consolidated Cash Flowof the Company for the period (taken as one accounting period) from January 1,2004 to the end of the Company’s most recently ended fiscal quarter for whichinternal financial statements are available at the time of such RestrictedPayment less the product of 1.5 times the Company’s Consolidated InterestExpense for the same period; *plus*

######  

###### (B)   100% of the aggregate net cashproceeds received by the Company since the date of this Indenture as acontribution to its common equity capital or from the issue or sale of EquityInterests of the Company (other than Disqualified Stock) or from the issue orsale of convertible or exchangeable Disqualified Stock or convertible orexchangeable debt securities of the Company that have been converted into orexchanged for such Equity Interests (other than Equity Interests (orDisqualified Stock or debt securities) sold to a Subsidiary of the Company); *plus*

######  

###### (C)   to the extent that any RestrictedInvestment that was made after the date of this Indenture is sold for cash orotherwise liquidated or repaid for cash, the lesser of (i) the cash return ofcapital with respect to such Restricted Investment (less the cost ofdisposition, if any) and (ii) the initial amount of such Restricted Investment;*plus*

 

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###### (D)  to the extent that any UnrestrictedSubsidiary of the Company designated as such after the date of this Indentureis redesignated as a Restricted Subsidiary after the date of this Indenture,the lesser of (i) the Fair Market Value of the Company’s Investment in suchSubsidiary as of the date of such redesignation or (ii) such Fair Market Valueas of the date on which such Subsidiary was originally designated as anUnrestricted Subsidiary after the date of this Indenture; *plus*

######  

###### (E)   50% of any dividends received by theCompany or a Restricted Subsidiary of the Company that is a Guarantor after thedate of this Indenture from an Unrestricted Subsidiary of the Company, to theextent that such dividends were not otherwise included in the Consolidated Net Incomeof the Company for such period;

######  

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

###  

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

####  

#### (2) themaking of any Restricted Payment in exchange for, or out of the net cashproceeds of the substantially concurrent sale (other than to a Subsidiary ofthe Company) of, Equity Interests of the Company (other than DisqualifiedStock) or from the substantially concurrent contribution of common equitycapital to the Company; provided that the amount of any such net cash proceedsthat are utilized for any such Restricted Payment will be excluded from clause(3)(B) of Section 4.07(a) hereof;

####  

#### (3) therepurchase, redemption, defeasance or other acquisition or retirement for valueof Indebtedness of the Company or any Guarantor that is contractuallysubordinated to the Notes or to any Guarantee with the net cash proceeds from asubstantially concurrent incurrence of Permitted Refinancing Indebtedness;

####  

#### (4) therepurchase, redemption or other acquisition or retirement for value of anyEquity Interests of the Company, Parent or any Restricted Subsidiary of theCompany held by any current or former officer, director or employee of theCompany or any of its Restricted Subsidiaries pursuant to any equitysubscription agreement, stock option agreement, shareholders’ agreement orsimilar agreement (or the payment of a dividend or other distribution to Parentfor such purpose); *provided* thatthe aggregate price paid for all such repurchased, redeemed, acquired orretired Equity Interests may not exceed $500,000 in any twelve-month period;

####  

#### (5) therepurchase of Equity Interests deemed to occur upon the exercise of stockoptions to the extent such Equity Interests represent a portion of the exerciseprice of those stock options;

####  

#### (6) thedeclaration and payment of regularly scheduled or accrued dividends to holdersof any class or series of Disqualified Stock of the Company or any RestrictedSubsidiary of the Company issued on or after the date of this Indenture inaccordance with the Debt to Cash Flow Ratio test described in Section 4.09hereof;

####  

#### (7)Permitted Payments to Parent; and

####  

#### (8)additional Restricted Payments in an aggregate amount not to exceed $25.0million.

 

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The amount of all Restricted Payments (other thancash) will be the Fair Market Value on the date of the Restricted Payment ofthe asset(s) or securities proposed to be transferred or issued by the Companyor such Restricted Subsidiary, as the case may be, pursuant to the RestrictedPayment.  The Fair Market Value of anyassets or securities that are required to be valued by this Section 4.07 willbe determined by the Board of Directors of the Company whose resolution withrespect thereto shall be delivered to the Trustee.  The Board of Directors’ determination must be based upon anopinion or appraisal issued by an accounting, appraisal or investment bankingfirm of national standing if the Fair Market Value exceeds $5.0 million.

 

## *Section 4.08*           Dividend and Other PaymentRestrictions Affecting Subsidiaries.

## * *

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

###  

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

####  

#### (2)  make loans or advances to the Company or anyof its Restricted Subsidiaries; or

####  

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

####  

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

###  

#### (1)agreements governing Existing Indebtedness as in effect on the date of thisIndenture and any amendments, restatements, modifications, renewals,supplements, refundings, replacements or refinancings of those agreements;provided that the amendments, restatements, modifications, renewals,supplements, refundings, replacements or refinancings are not materially morerestrictive, taken as a whole, with respect to such dividend and other paymentrestrictions than those contained in those agreements on the date of thisIndenture;

####  

#### (2)agreements or instruments governing Indebtedness incurred pursuant to clause(1) of the definition of “Permitted Debt” so long as either (a) theencumbrances and restrictions contained therein do not impair the ability ofany Restricted Subsidiary of the Company to pay dividends or make any other distributionsor payments directly or indirectly to the Company in an amount sufficient topermit the Company to pay the principal of, or interest and premium andLiquidated Damages, if any, on, the Notes, or (b) the encumbrances orrestrictions contained therein are no more restrictive, taken as a whole, thanthose contained in the Notes and this Indenture

####  

#### (3) thisIndenture, the Notes and the Guarantees;

####  

#### (4)applicable law, rule, regulation or order;

####  

#### (5) anyinstrument governing Indebtedness or Capital Stock of a Person acquired by theCompany or any of its Restricted Subsidiaries as in effect at the time of suchacquisition (except to the extent such Indebtedness or Capital Stock wasincurred in connection with or in

 

45

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#### contemplation of such acquisition),which encumbrance or restriction is not applicable to any Person, or theproperties or assets of any Person, other than the Person, or the property orassets of the Person, so acquired; provided that, in the case of Indebtedness,such Indebtedness was permitted by the terms of this Indenture to be incurred;

####  

#### (6)customary non-assignment provisions in contracts and licenses entered into inthe ordinary course of business;

####  

#### (7)purchase money obligations for property acquired in the ordinary course ofbusiness and Capital Lease Obligations that impose restrictions on the propertypurchased or leased of the nature described in clause (3) of Section 4.08(a)hereof;

####  

#### (8) anyagreement for the sale or other disposition of a Restricted Subsidiary thatrestricts distributions by that Restricted Subsidiary pending the sale or otherdisposition;

####  

#### (9)Permitted Refinancing Indebtedness; *provided* that the restrictions containedin the agreements governing such Permitted Refinancing Indebtedness are notmaterially more restrictive, taken as a whole, than those contained in theagreements governing the Indebtedness being refinanced;

####  

#### (10)Liens permitted to be incurred under the provisions of Section 4.12 hereof thatlimit the right of the debtor to dispose of the assets subject to such Liens;

####  

#### (11)provisions limiting the disposition or distribution of assets or property injoint venture agreements, asset sale agreements, sale-leaseback agreements,stock sale agreements and other similar agreements entered into with theapproval of the Company’s Board of Directors, which limitation is applicableonly to the assets that are the subject of such agreements; and

####  

#### (12)restrictions on cash or other deposits or net worth imposed by customers undercontracts entered into in the ordinary course of business.

####  

## *Section 4.09*           Incurrence of Indebtedness andIssuance of Preferred Stock.

## * *

### (a)   The Company will not, and will notpermit any of its Restricted Subsidiaries to, directly or indirectly, create,issue, assume, guarantee or otherwise become directly or indirectly liable,contingently or otherwise, with respect to (collectively, “i*ncur*”) any Indebtedness (includingAcquired Debt), and the Company will not issue any Disqualified Stock and willnot permit any of its Restricted Subsidiaries to issue any shares of preferredstock; provided, however, that the Company may incur Indebtedness (includingAcquired Debt) or issue Disqualified Stock, and the Company’s RestrictedSubsidiaries that are Guarantors may incur Indebtedness (including AcquiredDebt) or issue preferred stock, if, after giving pro forma effect thereto(including a pro forma application of the net proceeds therefrom), theCompany’s Debt to Cash Flow Ratio immediately preceding the incurrence of suchadditional Indebtedness or the issuance of such Disqualified Stock or preferredstock, as the case may be, would have been no greater than 7.0 to 1.

###  

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

###  

#### (1) theincurrence by the Company and any of its Restricted Subsidiaries of additionalIndebtedness and letters of credit in an aggregate principal amount at any onetime outstanding under this clause (1) (with letters of credit being deemed tohave a principal amount equal to the

 

46

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#### maximum potential liability of theCompany and its Restricted Subsidiaries thereunder), including all PermittedRefinancing Indebtedness incurred to extend, renew, refund, refinance, replace,defease or discharge any Indebtedness incurred pursuant to this clause (1), notto exceed 1.5 times the Company’s Annualized Consolidated Cash Flow for the mostrecently ended two full fiscal quarters for which internal financial statementsare available immediately preceding the date on which such additionalIndebtedness is incurred;

####  

#### (2) theincurrence by the Company and its Restricted Subsidiaries of the ExistingIndebtedness;

####  

#### (3) theincurrence by the Company and the Guarantors of Indebtedness represented by theNotes and the related Guarantees to be issued on the date of this Indenture,and the Exchange Notes and the related Guarantees to be issued pursuant to theRegistration Rights Agreement;

####  

#### (4) theincurrence by the Company or any of the Guarantors of Indebtedness representedby Capital Lease Obligations, mortgage financings or purchase moneyobligations, in each case, incurred for the purpose of financing all or anypart of the purchase price or cost of design, construction, installation orimprovement of property, plant or equipment used in the business of the Companyor any of its Restricted Subsidiaries, in an aggregate principal amount,including all Permitted Refinancing Indebtedness incurred to renew, refund,refinance, replace, defease or discharge any Indebtedness incurred pursuant tothis clause (4), not to exceed $10.0 million at any time outstanding

####  

#### (5) theincurrence by the Company or any of its Restricted Subsidiaries of PermittedRefinancing Indebtedness in exchange for, or the net proceeds of which are usedto extend, renew, refund, refinance, replace, defease or discharge anyIndebtedness (other than intercompany Indebtedness) that was permitted by thisIndenture to be incurred under Section 4.09(a) hereof or clauses (1), (2), (3),(4) or (5) of this Section 4.09(b);

####  

#### (6) theincurrence by the Company or any of its Restricted Subsidiaries of intercompanyIndebtedness between or among the Company and any of its RestrictedSubsidiaries; *provided, however*,that (a) any subsequent issuance or transfer of Equity Interests that resultsin any such Indebtedness being held by a Person other than the Company or aRestricted Subsidiary of the Company and (b) any sale or other transfer of anysuch Indebtedness to a Person that is not either the Company or a RestrictedSubsidiary of the Company, will be deemed, in each case, to constitute anincurrence of such Indebtedness by the Company or such Restricted Subsidiary,as the case may be, that was not permitted by this clause (6);

####  

#### (7) theissuance by any of the Company’s Restricted Subsidiaries to the Company or toany of its Restricted Subsidiaries of shares of preferred stock; *provided, however*, that:

####  

###### (A)  any subsequent issuance or transferof Equity Interests that results in any such preferred stock being held by aPerson other than the Company or a Restricted Subsidiary of the Company; and

######  

###### (B)   any sale or other transfer of anysuch preferred stock to a Person that is not either the Company or a RestrictedSubsidiary of the Company,

######  

will be deemed, in eachcase, to constitute an issuance of such preferred stock by such RestrictedSubsidiary that was not permitted by this clause (7);

 

47

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#### (8) theincurrence by the Company or any of its Restricted Subsidiaries of HedgingObligations in the ordinary course of business;

####  

#### (9) theguarantee by the Company or any of the Guarantors of Indebtedness of theCompany or a Restricted Subsidiary of the Company that was permitted to beincurred by another provision of this Section 4.09; provided that if theIndebtedness being guaranteed is subordinated to or *pari passu* with the Notes,then the guarantee shall be subordinated or *pari passu*, as applicable, to the sameextent as the Indebtedness guaranteed;

####  

#### (10) theincurrence by the Company or any of its Restricted Subsidiaries of Indebtednessin respect of workers’ compensation claims, self-insurance obligations,bankers’ acceptances, performance and surety bonds in the ordinary course ofbusiness; and

####  

#### (11) theincurrence by the Company or any of its Restricted Subsidiaries of Indebtednessarising from the honoring by a bank or other financial institution of a check,draft or similar instrument inadvertently drawn against insufficient funds, solong as such Indebtedness is covered within five Business Days.

####  

The Company will not incur, and will not permit anyGuarantor to incur, any Indebtedness (including Permitted Debt) that iscontractually subordinated in right of payment to any other Indebtedness of theCompany or such Guarantor unless such Indebtedness is also contractuallysubordinated in right of payment to the Notes and the applicable Guarantee onsubstantially identical terms; provided, however, that no Indebtedness will bedeemed to be contractually subordinated in right of payment to any otherIndebtedness of the Company solely by virtue of being unsecured or by virtue ofbeing secured on a first or junior Lien basis.

 

For purposes of determining compliance with thisSection 4.09, in the event that an item of proposed Indebtedness meets thecriteria of more than one of the categories of Permitted Debt described inclauses (1) through (11) above, or is entitled to be incurred pursuant toSection 4.09(a) hereof, the Company will be permitted to classify such item ofIndebtedness on the date of its incurrence, or later reclassify all or aportion of such item of Indebtedness, in any manner that complies with this Section4.09. The accrual of interest, the accretion or amortization of original issuediscount, the payment of interest on any Indebtedness in the form of additionalIndebtedness with the same terms, the reclassification of preferred stock asIndebtedness due to a change in accounting principles, and the payment ofdividends on Disqualified Stock in the form of additional shares of the sameclass of Disqualified Stock will not be deemed to be an incurrence ofIndebtedness or an issuance of Disqualified Stock for purposes of this Section4.09; provided, in each such case, that the amount of any such accrual,accretion or payment is included in Consolidated Interest Expense of theCompany as accrued. Notwithstanding any other provision of this Section 4.09,the maximum amount of Indebtedness that the Company or any RestrictedSubsidiary may incur pursuant to this Section 4.09 shall not be deemed to beexceeded solely as a result of fluctuations in exchange rates or currencyvalues.

 

### (c)           The amount of any Indebtedness outstanding as of anydate will be:

###  

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

 

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

 

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

 

48

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###### (A)  the Fair Market Value of such assetsat the date of determination; and

######  

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

######  

## *Section 4.10*           Asset Sales.

## * *

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

 

#### (1) theCompany or the Restricted Subsidiary, as the case may be, receivesconsideration at the time of the Asset Sale at least equal to the Fair MarketValue of the assets or Equity Interests issued or sold or otherwise disposedof; and

####  

#### (2) atleast 75% of the consideration received in the Asset Sale by the Company orsuch Restricted Subsidiary is in the form of cash or Cash Equivalents. Forpurposes of this provision, each of the following will be deemed to be cash:

####  

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

######  

###### (B)   any securities, notes or otherobligations received by the Company or any such Restricted Subsidiary from suchtransferee that are contemporaneously, subject to ordinary settlement periods,converted by the Company or such Restricted Subsidiary into cash, to the extentof the cash received in that conversion; and

######  

###### (C)   any stock or assets of the kindreferred to in clauses (2) or (4) of the next paragraph of thisSection 4.10.

 

Within 360 days after the receipt of any Net Proceedsfrom an Asset Sale, the Company or the applicable Restricted Subsidiary, as thecase may be, may apply such Net Proceeds:

 

#### (1) torepay Indebtedness incurred pursuant to clause (1) of the definition of“Permitted Debt” (and, if the Indebtedness repaid is revolving creditIndebtedness, to correspondingly reduce commitments with respect thereto);

####  

#### (2) toacquire all or substantially all of the assets of, or any Capital Stock of,another Permitted Business, if, after giving effect to any such acquisition ofCapital Stock, the Permitted Business is or becomes a Restricted Subsidiary ofthe Company;

####  

#### (3) tomake a capital expenditure; or

####  

#### (4) toacquire other assets that are not classified as current assets under GAAP andthat are used or useful in a Permitted Business.

####  

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

 

49

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Any Net Proceeds from Asset Sales that are not appliedor invested as provided in the second paragraph of this Section 4.10 willconstitute “*ExcessProceeds*.”  When theaggregate amount of Excess Proceeds exceeds $10.0 million, within 30 daysthereof, the Company will make an Asset Sale Offer to all Holders of Notes andall holders of other Indebtedness that is *pari passu* with the Notes containingprovisions similar to those set forth in this Indenture with respect to offersto purchase or redeem with the proceeds of sales of assets to purchase themaximum principal amount of Notes and such other *pari passu* Indebtedness thatmay be purchased out of the Excess Proceeds. The offer price in any Asset SaleOffer will be equal to 100% of the principal amount plus accrued and unpaidinterest and Liquidated Damages, if any, to the date of purchase, and will bepayable in cash. If any Excess Proceeds remain after consummation of an AssetSale Offer, the Company may use those Excess Proceeds for any purpose nototherwise prohibited by this Indenture. If the aggregate principal amount ofNotes and other *pari passu* Indebtedness tendered into such Asset Sale Offerexceeds the amount of Excess Proceeds, the Trustee will select the Notes andsuch other *paripassu* Indebtedness to be purchased on a pro rata basis. Uponcompletion of each Asset Sale Offer, the amount of Excess Proceeds will bereset at zero.

 

The Company will comply with the requirements of Rule14e-1 under the Exchange Act and any other securities laws and regulationsthereunder to the extent those laws and regulations are applicable inconnection with each repurchase of Notes pursuant to an Asset Sale Offer. Tothe extent that the provisions of any securities laws or regulations conflictwith the provisions of Section 3.09 hereof or this Section 4.10, the Companywill comply with the applicable securities laws and regulations and will not bedeemed to have breached its obligations under Section 3.09 hereof or thisSection 4.10 by virtue of such compliance.

 

## *Section 4.11*           Transactions with Affiliates.

## * *

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

###  

#### (1) theAffiliate Transaction is on terms that are no less favorable to the Company orthe relevant Restricted Subsidiary than those that would have been obtained ina comparable transaction by the Company or such Restricted Subsidiary with anunrelated Person; and

####  

#### (2) theCompany delivers to the Trustee:

####  

###### (A)  with respect to any AffiliateTransaction or series of related Affiliate Transactions involving aggregateconsideration in excess of $1.0 million, a resolution of the Board of Directorsof the Company set forth in an Officers’ Certificate certifying that suchAffiliate Transaction complies with clause (1) of this Section 4.11(a) and thatsuch Affiliate Transaction has been approved by a majority of the disinterestedmembers of the Board of Directors of the Company; and

######  

###### (B)   with respect to any AffiliateTransaction or series of related Affiliate Transactions involving aggregateconsideration in excess of $5.0 million, an opinion as to the fairness to theCompany or such Subsidiary of such Affiliate Transaction from a financial pointof view issued by an accounting, appraisal or investment banking firm ofnational standing.

 

50

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### (b)   The following items will not bedeemed to be Affiliate Transactions and, therefore, will not be subject to theprovisions of Section 4.11(a) hereof:

###  

#### (1)  any employment agreement, employee benefitplan, officer or director indemnification agreement or any similar arrangemententered into by the Company or any of its Restricted Subsidiaries in theordinary course of business and payments pursuant thereto;

####  

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

####  

#### (3)transactions with a Person (other than an Unrestricted Subsidiary of theCompany) that is an Affiliate of the Company solely because the Company owns,directly or through a Restricted Subsidiary, an Equity Interest in, orcontrols, such Person

####  

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

####  

#### (5) anyissuance of Equity Interests (other than Disqualified Stock) of the Company toAffiliates of the Company;

####  

#### (6)Restricted Payments that do not violate Section 4.07 hereof; and

####  

#### (7)Permitted Payments to Parent.

####  

## *Section 4.12*           Liens.

## * *

The Company will not, and will not permit any of itsRestricted Subsidiaries to, directly or indirectly, create, incur, assume orsuffer to exist any Lien of any kind on any asset now owned or hereafteracquired, except Permitted Liens.

 

## *Section 4.13*           Business Activities.

## * *

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

 

## *Section 4.14*           Corporate Existence.

## * *

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

 

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

####  

#### (2) therights (charter and statutory), licenses and franchises of the Company and itsSubsidiaries; *provided, however,* that the Company shall not be required topreserve any such right, license or franchise, or the corporate, partnership orother existence of any of its Subsidiaries, if the Board of Directors shalldetermine that the preservation thereof is no longer desirable in the conductof the business of the Company and its Subsidiaries, taken as a whole, and thatthe loss thereof is not adverse in any material respect to the Holders of theNotes.

 

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## *Section 4.15*           Offer to Repurchase Upon Change ofControl.

## * *

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

###  

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

####  

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

####  

#### (3) thatany Note not tendered will continue to accrue interest;

####  

#### (4)that, unless the Company defaults in the payment of the Change of ControlPayment, all Notes accepted for payment pursuant to the Change of Control Offerwill cease to accrue interest after the Change of Control Payment Date;

####  

#### (5) thatHolders electing to have any Notes purchased pursuant to a Change of ControlOffer will be required to surrender the Notes, with the form entitled “Optionof Holder to Elect Purchase” attached to the Notes completed, or transfer bybook-entry transfer, to the Paying Agent at the address specified in the noticeprior to the close of business on the third Business Day preceding the Changeof Control Payment Date;

####  

#### (6) thatHolders will be entitled to withdraw their election if the Paying Agentreceives, not later than the close of business on the second Business Daypreceding the Change of Control Payment Date, a telegram, telex, facsimiletransmission or letter setting forth the name of the Holder, the principalamount of Notes delivered for purchase, and a statement that such Holder iswithdrawing his election to have the Notes purchased; and

####  

#### (7) thatHolders whose Notes are being purchased only in part will be issued new Notesequal in principal amount to the unpurchased portion of the Notes surrendered,which unpurchased portion must be equal to $1,000 in principal amount or anintegral multiple thereof.

####  

The Company will comply with the requirements of Rule14e-1 under the Exchange Act and any other securities laws and regulationsthereunder to the extent those laws and regulations are applicable inconnection with the repurchase of the Notes as a result of a Change inControl.  To the extent that theprovisions of any securities laws or regulations conflict with the provisionsof Sections 3.09 or 4.15 hereof, the Company will comply with the applicablesecurities laws and regulations and will not be deemed to have breached itsobligations under Section 3.09 hereof or this Section 4.15 by virtue of suchcompliance.

 

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

 

52

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

####  

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

####  

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

####  

The Paying Agent will promptly mail to each Holder ofNotes properly tendered the Change of Control Payment for such Notes, and theTrustee will promptly authenticate and mail (or cause to be transferred by bookentry) to each Holder a new Note equal in principal amount to any unpurchasedportion of the Notes surrendered, if any. The Company will publicly announcethe results of the Change of Control Offer on or as soon as practicable afterthe Change of Control Payment Date.

 

### (c)   Notwithstanding anything to thecontrary in this Section 4.15, the Company will not be required to make aChange of Control Offer upon a Change of Control if (1) a third party makes theChange of Control Offer in the manner, at the times and otherwise in compliancewith the requirements set forth in this Section 4.15 and Section 3.09 hereofand purchases all Notes properly tendered and not withdrawn under the Change ofControl Offer, or (2) notice of redemption has been given pursuant to Section3.07 hereof, unless and until there is a default in payment of the applicableredemption price.

###  

## *Section 4.16*           Payments for Consent.

## * *

The Company will not, and will not permit any of itsRestricted Subsidiaries to, directly or indirectly, pay or cause to be paid anyconsideration to or for the benefit of any Holder of Notes for or as aninducement to any consent, waiver or amendment of any of the terms orprovisions of this Indenture or the Notes unless such consideration is offeredto be paid and is paid to all Holders of the Notes that consent, waive or agreeto amend in the time frame set forth in the solicitation documents relating tosuch consent, waiver or agreement

 

## *Section 4.17*           Additional Guarantees.

## * *

If the Company or any of its Restricted Subsidiariesacquires or creates another Domestic Restricted Subsidiary after the date ofthis Indenture, then that newly acquired or created Domestic RestrictedSubsidiary will become a Guarantor and execute a supplemental indenture anddeliver an Opinion of Counsel satisfactory to the Trustee within 10 BusinessDays of the date on which it was acquired or created; provided that anyDomestic Restricted Subsidiary that constitutes an Immaterial Subsidiary neednot become a Guarantor until such time as it ceases to be an ImmaterialSubsidiary  The form of such Guaranteesis attached as Exhibit E hereto.

 

## *Section 4.18*           Designation of Restricted andUnrestricted Subsidiaries.

## * *

The Board of Directors of the Company may designateany Restricted Subsidiary to be an Unrestricted Subsidiary if that designationwould not cause a Default. If a Restricted Subsidiary is designated as anUnrestricted Subsidiary, the aggregate Fair Market Value of all outstandingInvestments owned by the Company and its Restricted Subsidiaries in theSubsidiary designated as Unrestricted will be deemed to be an Investment madeas of the time of the designation and will reduce the amount available forRestricted Payments under Section 4.07 hereof or under one or more clauses ofthe definition of Permitted Investments, as determined by the Company. Thatdesignation will only be

 

53

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permitted if the Investment would be permitted at that time and if theRestricted Subsidiary otherwise meets the definition of an UnrestrictedSubsidiary. The Board of Directors of the Company may redesignate anyUnrestricted Subsidiary to be a Restricted Subsidiary if that redesignationwould not cause a Default.

 

Any designation of a Subsidiary of the Company as anUnrestricted Subsidiary will be evidenced to the Trustee by filing with theTrustee a certified copy of a resolution of the Board of Directors givingeffect to such designation and an Officers’ Certificate certifying that such designationcomplied with the preceding conditions and was permitted by Section 4.07hereof.  If, at any time, anyUnrestricted Subsidiary would fail to meet the preceding requirements as anUnrestricted Subsidiary, it will thereafter cease to be an UnrestrictedSubsidiary for purposes of this Indenture and any Indebtedness of suchSubsidiary will be deemed to be incurred by a Restricted Subsidiary of theCompany as of such date and, if such Indebtedness is not permitted to beincurred as of such date under Section 4.09 hereof, the Company will be indefault of such covenant.  The Board ofDirectors of the Company may at any time designate any Unrestricted Subsidiaryto be a Restricted Subsidiary of the Company; *provided*that such designation will be deemed to be an incurrence ofIndebtedness by a Restricted Subsidiary of the Company of any outstandingIndebtedness of such Unrestricted Subsidiary, and such designation will only bepermitted if (1) such Indebtedness is permitted under Section 4.09 hereof,calculated on a pro forma basis as if such designation had occurred at thebeginning of the two-quarter reference period; and (2) no Default or Event ofDefault would be in existence following such designation.

 

# **ARTICLE 5**SUCCESSORS

#  

## *Section 5.01*           Merger, Consolidation, or Sale ofAssets.

## * *

The Company shall not, directly or indirectly: (1)consolidate or merge with or into another Person (whether or not the Company isthe surviving corporation); or (2) sell, assign, transfer, convey or otherwisedispose of all or substantially all of the properties or assets of the Companyand its Restricted Subsidiaries taken as a whole, in one or more relatedtransactions, to another Person, unless:

 

#### (1)either:

####  

###### (A)  the Company is the survivingcorporation; or

######  

###### (B)   the Person formed by or survivingany such consolidation or merger (if other than the Company) or to which suchsale, assignment, transfer, conveyance or other disposition has been made is acorporation organized or existing under the laws of the United States, any stateof the United States or the District of Columbia;

######  

#### (2) thePerson formed by or surviving any such consolidation or merger (if other thanthe Company) or the Person to which such sale, assignment, transfer, conveyanceor other disposition has been made assumes all the obligations of the Companyunder the Notes, this Indenture and the Registration Rights Agreement pursuantto agreements reasonably satisfactory to the Trustee

####  

#### (3)  immediately after such transaction, noDefault or Event of Default exists; and

####  

#### (4) theCompany or the Person formed by or surviving any such consolidation or merger(if other than the Company), or to which such sale, assignment, transfer,conveyance or other

 

54

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#### disposition has been made, would, onthe date of such transaction after giving pro forma effect thereto and anyrelated financing transactions as if the same had occurred at the beginning ofthe applicable two-quarter period, have a Debt to  Cash Flow Ratio no higher than the Company’s Debt to Cash FlowRatio immediately prior to such transaction.

####  

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

 

This Section 5.01 will not apply to:

 

(1) a merger of theCompany with an Affiliate solely for the purpose of reincorporating the Companyin another jurisdiction; or

 

(2) any consolidation ormerger, or any sale, assignment, transfer, conveyance, lease or otherdisposition of assets between or among the Company and its RestrictedSubsidiaries.

 

## *Section 5.02*           Successor Corporation Substituted.

## * *

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

 

# **ARTICLE 6**DEFAULTS AND REMEDIES

#  

## *Section 6.01*           Events of Default.

## * *

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

 

#### (1)default for 30 days in the payment when due of interest on, or LiquidatedDamages, if any, with respect to, the Notes;

####  

#### (2)default in the payment when due (at maturity, upon redemption or otherwise) ofthe principal of, or premium, if any, on, the Notes;

####  

#### (3)failure by the Company or any of its Restricted Subsidiaries to comply with theprovisions of Sections 4.07, 4.09, 4.10, 4.15 or 5.01 hereof;

####  

#### (4)failure by the Company or any of its Restricted Subsidiaries for 60 days afternotice to the Company by the Trustee or the Holders of at least 25% inaggregate principal amount of the

 

55

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#### Notes then outstanding voting as asingle class to comply with any of the other agreements in this Indenture;

####  

#### (5) defaultunder any mortgage, indenture or instrument under which there may be issued orby which there may be secured or evidenced any Indebtedness for money borrowedby the Company or any of its Restricted Subsidiaries (or the payment of whichis guaranteed by the Company or any of its Restricted Subsidiaries), whethersuch Indebtedness or guarantee now exists, or is created after the date of thisIndenture, if that default:

####  

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

######  

###### (B)   results in the acceleration of suchIndebtedness prior to its express maturity,

######  

and, in each case, the principal amount of any suchIndebtedness, together with the principal amount of any other such Indebtednessunder which there has been a Payment Default or the maturity of which has beenso accelerated, aggregates $7.5 million or more;

 

#### (6)failure by the Company or any of its Restricted Subsidiaries to pay finaljudgments entered by a court or courts of competent jurisdiction aggregating inexcess of $7.5 million, which judgments are not paid, discharged or stayed fora period of 60 days;

####  

#### (7)except as permitted by this Indenture, any Guarantee is held in any judicialproceeding to be unenforceable or invalid or ceases for any reason to be infull force and effect, or any Guarantor, or any Person acting on behalf of anyGuarantor, denies or disaffirms its obligations under its Guarantee;

####  

#### (8) theCompany or any of its Restricted Subsidiaries that is a Significant Subsidiaryor any group of Restricted Subsidiaries that, taken together, would constitutea Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:

####  

###### (A)  commences a voluntary case,

######  

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

######  

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

######  

###### (D)  makes a general assignment for thebenefit of its creditors, or

######  

###### (E)   generally is not paying its debts asthey become due;

######  

#### (9)a court of competent jurisdiction enters an order or decree under anyBankruptcy Law that:

####  

###### (A)  is for relief against the Company orany of its Restricted Subsidiaries that is a Significant Subsidiary or anygroup of Restricted Subsidiaries of the Company that, taken together, wouldconstitute a Significant Subsidiary in an involuntary case;

 

56

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###### (B)   appoints a custodian of the Companyor any of its Restricted Subsidiaries that is a Significant Subsidiary or anygroup of Restricted Subsidiaries of the Company that, taken together, wouldconstitute a Significant Subsidiary or for all or substantially all of theproperty of the Company or any of its Restricted Subsidiaries that is aSignificant Subsidiary or any group of Restricted Subsidiaries of the Companythat, taken together, would constitute a Significant Subsidiary; or

######  

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

######  

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

 

## *Section 6.02*           Acceleration.

## * *

In the case of an Event of Default specified in clause(8) or (9) of Section 6.01 hereof, with respect to the Company, any RestrictedSubsidiary of the Company that is a Significant Subsidiary or any group ofRestricted Subsidiaries of the Company that, taken together, would constitute aSignificant Subsidiary, all outstanding Notes will become due and payableimmediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee orthe Holders of at least 25% in aggregate principal amount of the thenoutstanding Notes may declare all the Notes to be due and payableimmediately.  Upon any such declaration,the Notes shall become due and payable immediately.

 

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

 

If an Event of Default occurs on or after March 1,2007 by reason of any willful action (or inaction) taken (or not taken) by oron behalf of the Company with the intention of avoiding payment of the premiumthat the Company would have had to pay if the Company then had elected toredeem the Notes pursuant to Section 3.07 hereof, then, upon acceleration ofthe Notes, a premium equal to the premium that the Company would have had topay if the Company then had elected to redeem the Notes pursuant to Section3.07 hereof shall, in addition to such other amounts required to be paid inconnection with such acceleration, become and be immediately due and payable,to the extent permitted by law, anything in this Indenture or in the Notes tothe contrary notwithstanding. If an Event of Default occurs prior to March 1,2007, by reason of any willful action (or inaction) taken (or not taken) by oron behalf of the Company with the intention of avoiding the prohibition onredemption of the Notes prior to such date, then, upon acceleration of theNotes, a premium, in addition to such other amounts required to be paid inconnection with such acceleration, shall become and be immediately due andpayable, to the extent permitted by law, in an amount, for each of the yearsbeginning on March 1st of the years set forth below, as set forthbelow (expressed as a percentage of the principal amount of the Notes on thedate of payment that would otherwise be due but for the provisions of thissentence):

 
| **Year** |   | **Percentage** |   |
|----------|--------|----------------|--------|
| 2004     |   | 9.875          | %      |
| 2005     |   | 8.229          | %      |
| 2006     |   | 6.583          | %      |

 

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## *Section 6.03*           Other Remedies.

 

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

 

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

 

## *Section 6.04*           Waiver of Past Defaults.

## * *

Holders of not less than a majority in aggregateprincipal amount of the then outstanding Notes by notice to the Trustee may onbehalf of the Holders of all of the Notes waive an existing Default or Event ofDefault and its consequences hereunder, except a continuing Default or Event ofDefault in the payment of the principal of, premium and Liquidated Damages, ifany, or interest on, the Notes (including in connection with an offer to purchase);*provided,however*, that the Holders of a majority in aggregate principalamount of the then outstanding Notes may rescind an acceleration and itsconsequences, including any related payment default that resulted from suchacceleration.  Upon any such waiver,such Default shall cease to exist, and any Event of Default arising therefromshall be deemed to have been cured for every purpose of this Indenture; but nosuch waiver shall extend to any subsequent or other Default or impair any rightconsequent thereon.

 

## *Section 6.05*           Control by Majority.

## * *

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

 

## *Section 6.06*           Limitation on Suits.

## * *

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

 

#### (1) suchHolder has previously given the Trustee notice that an Event of Default iscontinuing;

####  

#### (2) Holdersof at least 25% in aggregate principal amount of the then outstanding Noteshave requested that the Trustee pursue the remedy;

####  

#### (3) suchHolder or Holders have offered the Trustee reasonable security or indemnityagainst any loss, liability or expense;

####  

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

####  

#### (5)during such 60-day period, Holders of a majority in aggregate principal amountof the then outstanding Notes have not given the Trustee a directioninconsistent with such request.

 

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

 

## *Section 6.07*           Rights of Holders of Notes to ReceivePayment.

## * *

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

 

## *Section 6.08*           Collection Suit by Trustee.

## * *

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

 

## *Section 6.09*           Trustee May File Proofs of Claim.

## * *

The Trustee is authorized to file such proofs of claimand other papers or documents as may be necessary or advisable in order to havethe claims of the Trustee (including any claim for the reasonable compensation,expenses, disbursements and advances of the Trustee, its agents and counsel)and the Holders of the Notes allowed in any judicial proceedings relative tothe Company (or any other obligor upon the Notes), its creditors or itsproperty and shall be entitled and empowered to collect, receive and distributeany money or other property payable or deliverable on any such claims and anycustodian in any such judicial proceeding is hereby authorized by each Holderto make such payments to the Trustee, and in the event that the Trustee shallconsent to the making of such payments directly to the Holders, to pay to theTrustee any amount due to it for the reasonable compensation, expenses,disbursements and advances of the Trustee, its agents and counsel, and anyother amounts due the Trustee under Section 7.07 hereof.  To the extent that the payment of any suchcompensation, expenses, disbursements and advances of the Trustee, its agentsand counsel, and any other amounts due the Trustee under Section 7.07 hereofout of the estate in any such proceeding, shall be denied for any reason,payment of the same shall be secured by a Lien on, and shall be paid out of,any and all distributions, dividends, money, securities and other propertiesthat the Holders may be entitled to receive in such proceeding whether inliquidation or under any plan of reorganization or arrangement orotherwise.  Nothing herein containedshall be deemed to authorize the Trustee to authorize or consent to or acceptor adopt on behalf of any Holder any plan of reorganization, arrangement,adjustment or composition affecting the Notes or the rights of any Holder, orto authorize the Trustee to vote in respect of the claim of any Holder in anysuch proceeding.

 

## *Section 6.10*           Priorities.

## * *

If the Trustee collects any money pursuant to thisArticle 6, it shall pay out the money in the following order:

 

*First*:           to the Trustee, itsagents and attorneys for amounts due under Section 7.07 hereof, includingpayment of all compensation, expenses and liabilities incurred, andall advances made, by the Trustee and the costs and expenses of collection;

 

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

 

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

 

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

 

## *Section 6.11*           Undertaking for Costs.

## * *

In any suit for the enforcement of any right or remedyunder this Indenture or in any suit against the Trustee for any action taken oromitted by it as a Trustee, a court in its discretion may require the filing byany party litigant in the suit of an undertaking to pay the costs of the suit,and the court in its discretion may assess reasonable costs, includingreasonable attorneys’ fees, against any party litigant in the suit, having dueregard to the merits and good faith of the claims or defenses made by the partylitigant.  This Section 6.11 does notapply to a suit by the Trustee, a suit by a Holder of a Note pursuant toSection 6.07 hereof, or a suit by Holders of more than 10% in aggregateprincipal amount of the then outstanding Notes.

 

# **ARTICLE 7**TRUSTEE

#  

## *Section 7.01*           Duties of Trustee.

## * *

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

###  

### (b)   Except during the continuance of anEvent of Default:

###  

#### (1) theduties of the Trustee will be determined solely by the express provisions ofthis Indenture and the Trustee need perform only those duties that arespecifically set forth in this Indenture and no others, and no impliedcovenants or obligations shall be read into this Indenture against the Trustee;and

####  

#### (2) inthe absence of bad faith on its part, the Trustee may conclusively rely, as tothe truth of the statements and the correctness of the opinions expressedtherein, upon certificates or opinions furnished to the Trustee and conformingto the requirements of this Indenture. However, the Trustee will examine the certificates and opinions todetermine whether or not they conform to the requirements of this Indenture.

####  

### (c)   The Trustee may not be relieved fromliabilities for its own negligent action, its own negligent failure to act, orits own willful misconduct, except that:

###  

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

 

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

####  

#### (3) theTrustee will not be liable with respect to any action it takes or omits to takein good faith in accordance with a direction received by it pursuant to Section6.05 hereof.

####  

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

###  

### (e)   No provision of this Indenture willrequire the Trustee to expend or risk its own funds or incur anyliability.  The Trustee will be under noobligation to exercise any of its rights and powers under this Indenture at therequest of any Holders, unless such Holder has offered to the Trustee securityand indemnity satisfactory to it against any loss, liability or expense.

###  

### (f)    The Trustee will not be liable forinterest on any money received by it except as the Trustee may agree in writingwith the Company.  Money held in trustby the Trustee need not be segregated from other funds except to the extentrequired by law.

###  

## *Section 7.02*           Rights of Trustee.

## * *

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

###  

### (b)   Before the Trustee acts or refrainsfrom acting, it may require an Officers’ Certificate or an Opinion of Counselor both.  The Trustee will not be liablefor any action it takes or omits to take in good faith in reliance on suchOfficers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice ofsuch counsel or any Opinion of Counsel will be full and complete authorizationand protection from liability in respect of any action taken, suffered oromitted by it hereunder in good faith and in reliance thereon.

###  

### (c)   The Trustee may act through itsattorneys and agents and will not be responsible for the misconduct ornegligence of any agent appointed with due care.

###  

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

###  

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

###  

### (f)    The Trustee will be under noobligation to exercise any of the rights or powers vested in it by thisIndenture at the request or direction of any of the Holders unless such Holdershave offered to the Trustee reasonable indemnity or security reasonablysatisfactory to the Trustee against the losses, liabilities and expenses thatmight be incurred by it in compliance with such request or direction.

###  

### (g)   In no event shall the Trustee beresponsible or liable for special, indirect, or consequential loss or damage ofany kind whatsoever (including, but not limited to, loss of profit)irrespective of whether the Trustee has been advised of the likelihood of suchloss or damage and regardless of the form of action;

 

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### (h)   The Trustee shall not be deemed tohave notice of any Default or Event of Default unless a Responsible Officer ofthe Trustee has actual knowledge thereof or unless written notice of any eventthat is in fact such a default is received by the Trustee at the CorporateTrust Office of the Trustee, and such notice references the Notes and thisIndenture.

###  

### (i)    The rights, privileges, protections,immunities and benefits given to the Trustee, including, without limitation,its right to be indemnified, are extended to, and shall be enforceable by, theTrustee in each of its capacities hereunder, and each agent, custodian andother Person employed to act hereunder.

###  

### (j)    The Trustee may request that theCompany deliver an Officers’ Certificate setting forth the names of individualsand/or titles of officers authorized at such time to take specified actionspursuant to this Indenture.

###  

## *Section 7.03*           Individual Rights of Trustee.

## * *

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

 

## *Section 7.04*           Trustee’s Disclaimer.

## * *

The Trustee will not be responsible for and makes norepresentation as to the validity or adequacy of this Indenture or the Notes,it shall not be accountable for the Company’s use of the proceeds from theNotes or any money paid to the Company or upon the Company’s direction underany provision of this Indenture, it will not be responsible for the use orapplication of any money received by any Paying Agent other than the Trustee,and it will not be responsible for any statement or recital herein or anystatement in the Notes or any other document in connection with the sale of theNotes or pursuant to this Indenture other than its certificate of authentication.

 

## *Section 7.05*           Notice of Defaults.

## * *

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

 

## *Section 7.06*           Reports by Trustee to Holders of theNotes.

## * *

### (a)   Within 60 days after each February15 beginning with the February 15 following the date of this Indenture, and forso long as Notes remain outstanding, the Trustee will mail to the Holders ofthe Notes a brief report dated as of such reporting date that complies with TIA§ 313(a) (but if no event described in TIA § 313(a) has occurred withinthe twelve months preceding the reporting date, no report need betransmitted).  The Trustee also willcomply with TIA § 313(b)(2).  TheTrustee will also transmit by mail all reports as required by TIA§ 313(c).

 

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### (b)   A copy of each report at the time ofits mailing to the Holders of Notes will be mailed by the Trustee to theCompany and filed by the Trustee with the SEC and each stock exchange on whichthe Notes are listed in accordance with TIA § 313(d).  The Company will promptly notify the Trusteewhen the Notes are listed on or delisted from any stock exchange.

###  

## *Section 7.07*           Compensation and Indemnity.

## * *

### (a)   The Company will pay to the Trusteefrom time to time such compensation for its acceptance of this Indenture andservices hereunder as shall be agreed in writing by the Company and theTrustee.  The Trustee’s compensationwill not be limited by any law on compensation of a trustee of an expresstrust.  The Company will reimburse theTrustee promptly upon request for all reasonable disbursements, advances andexpenses incurred or made by it in addition to the compensation for itsservices.  Such expenses will includethe reasonable compensation, disbursements and expenses of the Trustee’s agentsand counsel.

###  

### (b)   The Company and the Guarantors willindemnify the Trustee and any predecessor Trustee against any and all losses,liabilities, damages, claims or expenses, including taxes (other than thosebased upon, measured by or determined by the income of the Trustee) incurred byit arising out of or in connection with the acceptance or administration of itsduties under this Indenture, including the costs and expenses of enforcing thisIndenture against the Company and the Guarantors (including this Section 7.07)and defending itself against any claim (whether asserted by the Company, theGuarantors, any Holder or any other Person) or liability in connection with theexercise or performance of any of its powers or duties hereunder, except to theextent any such loss, liability or expense may be attributable to itsnegligence or bad faith.  The Trusteewill notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify theCompany will not relieve the Company or any of the Guarantors of theirobligations hereunder.  The Company orsuch Guarantor will defend the claim and the Trustee will cooperate in thedefense.  The Trustee may have separatecounsel and the Company will pay the reasonable fees and expenses of suchcounsel.  Neither the Company nor anyGuarantor need pay for any settlement made without its consent, which consentwill not be unreasonably withheld.

###  

### (c)   The obligations of the Company andthe Guarantors under this Section 7.07 will survive the satisfaction anddischarge of this Indenture and the resignation or removal of the Trustee.

###  

### (d)   To secure the Company’s and theGuarantors’ payment obligations in this Section 7.07, the Trustee will have aLien prior to the Notes on all money or property held or collected by theTrustee, except that held in trust to pay principal and interest on particularNotes.  Such Lien will survive thesatisfaction and discharge of this Indenture.

###  

### (e)   When the Trustee incurs expenses orrenders services after an Event of Default specified in Section 6.01(8) or (9)hereof occurs, the expenses and the compensation for the services (includingthe fees and expenses of its agents and counsel) are intended to constituteexpenses of administration under any Bankruptcy Law.

###  

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

###  

## *Section 7.08*           Replacement of Trustee.

## * *

### (a)   A resignation or removal of theTrustee and appointment of a successor Trustee will become effective only uponthe successor Trustee’s acceptance of appointment as provided in this Section7.08.

 

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

###  

#### (1) theTrustee fails to comply with Section 7.10 hereof;

####  

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

####  

#### (3) acustodian or public officer takes charge of the Trustee or its property; or

####  

#### (4) theTrustee becomes incapable of acting.

####  

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

###  

### (d)   If a successor Trustee does not takeoffice within 60 days after the retiring Trustee resigns or is removed, theretiring Trustee, the Company, or the Holders of at least 10% in aggregateprincipal amount of the then outstanding Notes may petition any court ofcompetent jurisdiction (at the expense of the Company) for the appointment of asuccessor Trustee.

###  

### (e)   If the Trustee, after writtenrequest by any Holder who has been a Holder for at least six months, fails tocomply with Section 7.10 hereof, such Holder may petition any court ofcompetent jurisdiction for the removal of the Trustee and the appointment of asuccessor Trustee.

###  

### (f)    A successor Trustee will deliver awritten acceptance of its appointment to the retiring Trustee and to theCompany.  Thereupon, the resignation orremoval of the retiring Trustee will become effective, and the successorTrustee will have all the rights, powers and duties of the Trustee under thisIndenture.  The successor Trustee willmail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it asTrustee to the successor Trustee; *provided* all sums owing to the Trusteehereunder have been paid and subject to the Lien provided for in Section 7.07hereof.  Notwithstanding replacement ofthe Trustee pursuant to this Section 7.08, the Company’s obligations underSection 7.07 hereof will continue for the benefit of the retiring Trustee.

###  

## *Section 7.09*           Successor Trustee by Merger, etc.

## * *

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

 

## *Section 7.10*           Eligibility; Disqualification.

## * *

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

 

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

 

## *Section 7.11*           Preferential Collection of ClaimsAgainst Company.

## * *

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

 

# **ARTICLE 8**LEGAL DEFEASANCE AND COVENANT DEFEASANCE

#  

Section 8.01           *Optionto Effect Legal Defeasance or Cov**enant Defeasance.*

 

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

 

## *Section 8.02*           LegalDefeasance and Discharge.

## * *

Upon the Company’s exercise under Section 8.01 hereofof the option applicable to this Section 8.02, the Company and each of theGuarantors will, subject to the satisfaction of the conditions set forth inSection 8.04 hereof, be deemed to have been discharged from their obligationswith respect to all outstanding Notes (including the Guarantees) on the datethe conditions set forth below are satisfied (hereinafter, “*LegalDefeasance*”).  For thispurpose, Legal Defeasance means that the Company and the Guarantors will bedeemed to have paid and discharged the entire Indebtedness represented by theoutstanding Notes (including the Guarantees), which will thereafter be deemedto be “outstanding” only for the purposes of Section 8.05 hereof and the otherSections of this Indenture referred to in clauses (1) and (2) below, and tohave satisfied all their other obligations under such Notes, the Guarantees andthis Indenture (and the Trustee, on demand of and at the expense of theCompany, shall execute proper instruments acknowledging the same), except forthe following provisions which will survive until otherwise terminated or dischargedhereunder:

 

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

####  

#### (2) theCompany’s obligations with respect to such Notes under Article 2 and Section4.02 hereof;

####  

#### (3) therights, powers, trusts, duties and immunities of the Trustee hereunder and theCompany’s and the Guarantors’ obligations in connection therewith; and

####  

#### (4) thisArticle 8.

####  

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

 

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## *Section 8.03*           Covenant Defeasance.

## * *

Upon the Company’s exercise under Section 8.01 hereofof the option applicable to this Section 8.03, the Company and each of theGuarantors will, subject to the satisfaction of the conditions set forth in Section8.04 hereof, be released from each of their obligations under the covenantscontained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and4.18 hereof and clause (4) of Section 5.01 hereof with respect to theoutstanding Notes on and after the date the conditions set forth in Section8.04 hereof are satisfied (hereinafter, “*Covenant Defeasance*”), and the Notes willthereafter be deemed not “outstanding” for the purposes of any direction,waiver, consent or declaration or act of Holders (and the consequences of anythereof) in connection with such covenants, but will continue to be deemed“outstanding” for all other purposes hereunder (it being understood that suchNotes will not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance meansthat, with respect to the outstanding Notes and Guarantees, the Company and theGuarantors may omit to comply with and will have no liability in respect of anyterm, condition or limitation set forth in any such covenant, whether directlyor indirectly, by reason of any reference elsewhere herein to any such covenantor by reason of any reference in any such covenant to any other provisionherein or in any other document and such omission to comply will not constitutea Default or an Event of Default under Section 6.01 hereof, but, except asspecified above, the remainder of this Indenture and such Notes and Guaranteeswill be unaffected thereby.  Inaddition, upon the Company’s exercise under Section 8.01 hereof of the optionapplicable to this Section 8.03, subject to the satisfaction of the conditionsset forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(5) hereof willnot constitute Events of Default.

 

## *Section 8.04*           Conditions to Legal or CovenantDefeasance.

## * *

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

 

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

####  

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

####  

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

######  

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

######  

in either case to the effect that, and based thereonsuch Opinion of Counsel shall confirm that, the Holders of the outstandingNotes will not recognize income, gain or loss for federal income tax purposesas a result of such Legal Defeasance and will be subject to federal income taxon the same amounts, in the same manner and at the same times as would havebeen the case if such Legal Defeasance had not occurred;

 

#### (3) inthe case of an election under Section 8.03 hereof, the Company must deliver tothe Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirmingthat the Holders

 

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#### of the outstanding Notes will notrecognize income, gain or loss for federal income tax purposes as a result ofsuch Covenant Defeasance and will be subject to federal income tax on the sameamounts, in the same manner and at the same times as would have been the caseif such Covenant Defeasance had not occurred;

####  

#### (4) noDefault or Event of Default shall have occurred and be continuing on the dateof such deposit (other than a Default or Event of Default resulting from theborrowing of funds to be applied to such deposit) and the deposit will notresult in a breach or violation of, or constitute a default under, any otherinstrument to which the Company or any Guarantor is a party or by which theCompany or any Guarantor is bound;

####  

#### (5) suchLegal Defeasance or Covenant Defeasance will not result in a breach orviolation of, or constitute a default under, any material agreement orinstrument (other than this Indenture) to which the Company or any of itsSubsidiaries is a party or by which the Company or any of its Subsidiaries isbound;

####  

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

####  

#### (7) theCompany must deliver to the Trustee an Officers’ Certificate and an Opinion ofCounsel, each stating that all conditions precedent relating to the LegalDefeasance or the Covenant Defeasance have been complied with.

####  

## *Section 8.05*           Deposited Money and GovernmentSecurities to be Held in Trust; Other Miscellaneous Provisions.

## * *

Subject to Section 8.06 hereof, all money andnon-callable Government Securities (including the proceeds thereof) depositedwith the Trustee (or other qualifying trustee, collectively for purposes ofthis Section 8.05, the “*Trustee*”)pursuant to Section 8.04 hereof in respect of the outstanding Notes will beheld in trust and applied by the Trustee, in accordance with the provisions ofsuch Notes and this Indenture, to the payment, either directly or through anyPaying Agent (including the Company acting as Paying Agent) as the Trustee maydetermine, to the Holders of such Notes of all sums due and to become duethereon in respect of principal, premium and Liquidated Damages, if any, andinterest, but such money need not be segregated from other funds except to theextent required by law.

 

The Company will pay and indemnify the Trustee againstany tax, fee or other charge imposed on or assessed against the cash ornon-callable Government Securities deposited pursuant to Section 8.04 hereof orthe 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 theoutstanding Notes.

 

Notwithstanding anything in this Article 8 to thecontrary, the Trustee will deliver or pay to the Company from time to time uponthe request of the Company any money or non-callable Government Securities heldby it as provided in Section 8.04 hereof which, in the opinion of a nationallyrecognized firm of independent public accountants expressed in a writtencertification thereof delivered to the Trustee (which may be the opiniondelivered under Section 8.04(1) hereof), are in excess of the amount thereofthat would then be required to be deposited to effect an equivalent LegalDefeasance or Covenant Defeasance.

 

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## *Section 8.06*           Repayment to Company.

## * *

Any money deposited with the Trustee or any PayingAgent, or then held by the Company, in trust for the payment of the principalof, premium or Liquidated Damages, if any, or interest on, any Note andremaining unclaimed for two years after such principal, premium or LiquidatedDamages, if any, or interest has become due and payable shall be paid to theCompany on its request or (if then held by the Company) will be discharged fromsuch trust; and the Holder of such Note will thereafter be permitted to lookonly to the Company for payment thereof, and all liability of the Trustee orsuch Paying Agent with respect to such trust money, and all liability of theCompany as trustee thereof, will thereupon cease; *provided, however*, that theTrustee or such Paying Agent, before being required to make any such repayment,may at the expense of the Company cause to be published once, in the New YorkTimes and The Wall Street Journal (national edition), notice that such moneyremains unclaimed and that, after a date specified therein, which will not beless than 30 days from the date of such notification or publication, anyunclaimed balance of such money then remaining will be repaid to the Company.

 

## *Section 8.07*           Reinstatement.

## * *

If the Trustee or Paying Agent is unable to apply anyU.S. dollars or non-callable Government Securities in accordance with Section8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment ofany court or governmental authority enjoining, restraining or otherwiseprohibiting such application, then the Company’s and the Guarantors’obligations under this Indenture and the Notes and the Guarantees will berevived and reinstated as though no deposit had occurred pursuant to Section8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permittedto apply all such money in accordance with Section 8.02 or 8.03 hereof, as thecase may be; *provided, however*, that, if the Company makes any payment ofprincipal of, premium or Liquidated Damages, if any, or interest on, any Notefollowing the reinstatement of its obligations, the Company will be subrogatedto the rights of the Holders of such Notes to receive such payment from the moneyheld by the Trustee or Paying Agent.

 

# **ARTICLE 9**AMENDMENT, SUPPLEMENT AND WAIVER

#  

## *Section 9.01*           Without Consent of Holders of Notes.

## * *

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

 

#### (1) tocure any ambiguity, defect or inconsistency;

####  

#### (2) toprovide for uncertificated Notes in addition to or in place of certificatedNotes;

####  

#### (3) toprovide for the assumption of the Company’s or a Guarantor’s obligations underthis Indenture, the Notes and the Guarantees in the case of a merger orconsolidation or sale of all or substantially all of the Company’s or suchGuarantor’s assets;

####  

#### (4) tomake any change that would provide any additional rights or benefits to theHolders of the Notes or that does not adversely affect the legal rightshereunder of any Holder;

####  

#### (5) tocomply with requirements of the SEC in order to effect or maintain thequalification of this Indenture under the TIA;

####  

#### (6) toconform the text of this Indenture, the Notes or the Guarantees to anyprovision of the “Description of Notes” section of the Company’s OfferingMemorandum dated February 19,

 

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#### 2004, relating to the initialoffering of the Notes, to the extent that such provision in that “Descriptionof Notes” was intended to be a verbatim recitation of a provision of thisIndenture, the Notes or the Guarantees;

####  

#### (7) toprovide for the issuance of Additional Notes in accordance with the limitationsset forth in this Indenture as of the date hereof; or

####  

#### (8) toallow any Guarantor to execute a supplemental indenture and/or a Guarantee withrespect to the Notes.

####  

Upon the request of the Company accompanied by aresolution of its Board of Directors authorizing the execution of any suchamended or supplemental indenture, and upon receipt by the Trustee of thedocuments described in Section 7.02 hereof, the Trustee will join with theCompany and the Guarantors in the execution of any amended or supplementalindenture authorized or permitted by the terms of this Indenture and to makeany further appropriate agreements and stipulations that may be thereincontained, but the Trustee will not be obligated to enter into such amended orsupplemental indenture that affects its own rights, duties or immunities underthis Indenture or otherwise.

 

## *Section 9.02*           With Consent of Holders of Notes.

## * *

Except as provided below in this Section 9.02, theCompany and the Trustee may amend or supplement this Indenture (including,without limitation, Section 3.09, 4.10 and 4.15 hereof) and the Notes and theGuarantees with the consent of the Holders of at least a majority in aggregateprincipal amount of the then outstanding Notes (including, without limitation,Additional Notes, if any) voting as a single class (including, withoutlimitation, consents obtained in connection with a tender offer or exchangeoffer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07hereof, any existing Default or Event of Default (other than a Default or Eventof Default in the payment of the principal of, premium or Liquidated Damages,if any, or interest on, the Notes, except a payment default resulting from anacceleration that has been rescinded) or compliance with any provision of thisIndenture or the Notes or the Guarantees may be waived with the consent of theHolders of a majority in aggregate principal amount of the then outstandingNotes (including, without limitation, Additional Notes, if any) voting as asingle class (including, without limitation, consents obtained in connectionwith a tender offer or exchange offer for, or purchase of, the Notes).*** ***Section 2.08 hereof shall determine which Notes areconsidered to be “outstanding” for purposes of this Section 9.02.

 

Upon the request of the Company accompanied by aresolution of its Board of Directors authorizing the execution of any suchamended or supplemental indenture, and upon the filing with the Trustee of evidencesatisfactory to the Trustee of the consent of the Holders of Notes asaforesaid, and upon receipt by the Trustee of the documents described inSection 7.02 hereof, the Trustee will join with the Company and the Guarantorsin the execution of such amended or supplemental indenture unless such amendedor supplemental indenture directly affects the Trustee’s own rights, duties orimmunities under this Indenture or otherwise, in which case the Trustee may inits discretion, but will not be obligated to, enter into such amended orsupplemental Indenture.

 

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

 

After an amendment, supplement or waiver under thisSection 9.02 becomes effective, the Company will mail to the Holders of Notesaffected thereby a notice briefly describing the amendment, supplement orwaiver.  Any failure of the Company tomail such notice, or any defect therein, will not,

 

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however, in any way impair or affect the validity of any such amendedor supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority inaggregate principal amount of the Notes then outstanding voting as a singleclass may waive compliance in a particular instance by the Company with anyprovision of this Indenture or the Notes or the Guarantees.  However, without the consent of each Holderaffected, an amendment, supplement or waiver under this Section 9.02 may not(with respect to any Notes held by a non-consenting Holder):

 

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

####  

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

####  

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

####  

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

####  

#### (5) makeany Note payable in money other than that stated in the Notes;

####  

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

####  

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

####  

#### (8)release any Guarantor from any of its obligations under its Guarantee or thisIndenture, except in accordance with the terms of this Indenture; or

####  

#### (9) makeany change in the preceding amendment and waiver provisions.

####  

## *Section 9.03*           Compliance with Trust Indenture Act.

## * *

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

 

## *Section 9.04*           Revocation and Effect of Consents.

## * *

Until an amendment, supplement or waiver becomeseffective, a consent to it by a Holder of a Note is a continuing consent by theHolder of a Note and every subsequent Holder of a Note or portion of a Notethat evidences the same debt as the consenting Holder’s Note, even if notationof the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note mayrevoke the consent as to its Note if the Trustee receives written notice ofrevocation before the date the amendment, supplement or waiver becomeseffective.  An amendment, supplement orwaiver becomes effective in accordance with its terms and thereafter bindsevery Holder.

 

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## *Section 9.05*           Notation on or Exchange of Notes.

## * *

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

 

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

 

## *Section 9.06*           Trustee to Sign Amendments, etc.

## * *

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

 

# **ARTICLE 10**GUARANTEES

#  

*Section 10.01.*      Guarantee.

* *

### (a)   Subject to this Article 10, each ofthe Guarantors hereby, jointly and severally, unconditionally guarantees toeach Holder of a Note authenticated and delivered by the Trustee and to theTrustee and its successors and assigns, irrespective of the validity andenforceability of this Indenture, the Notes or the obligations of the Companyhereunder or thereunder, that:

###  

#### (1)  the principal of, premium and LiquidatedDamages, if any, and interest on, the Notes will be promptly paid in full whendue, whether at maturity, by acceleration, redemption or otherwise, andinterest on the overdue principal of and interest on the Notes, if any, iflawful, and all other obligations of the Company to the Holders or the Trusteehereunder or thereunder will be promptly paid in full or performed, all inaccordance with the terms hereof and thereof; and

####  

#### (2) incase of any extension of time of payment or renewal of any Notes or any of suchother obligations, that same will be promptly paid in full when due orperformed in accordance with the terms of the extension or renewal, whether atstated maturity, by acceleration or otherwise.

####  

Failing payment when due of any amount so guaranteedor any performance so guaranteed for whatever reason, the Guarantors will bejointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is aguarantee of payment and not a guarantee of collection.

 

### (b)   The Guarantors hereby agree thattheir obligations hereunder are unconditional, irrespective of the validity,regularity or enforceability of the Notes or this Indenture, the absence of anyaction to enforce the same, any waiver or consent by any Holder of the Noteswith respect to any provisions hereof or thereof, the recovery of any judgmentagainst the Company, any action to enforce the same or any other circumstancewhich might otherwise constitute a legal or equitable discharge or defense of a

 

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guarantor.  Each Guarantorhereby waives diligence, presentment, demand of payment, filing of claims witha court in the event of insolvency or bankruptcy of the Company, any right torequire a proceeding first against the Company, protest, notice and all demandswhatsoever and covenant that this Guarantee will not be discharged except bycomplete performance of the obligations contained in the Notes and thisIndenture.

###  

### (c)   If any Holder or the Trustee isrequired by any court or otherwise to return to the Company, the Guarantors orany custodian, trustee, liquidator or other similar official acting in relationto either the Company or the Guarantors, any amount paid by either to theTrustee or such Holder, this Guarantee, to the extent theretofore discharged,will be reinstated in full force and effect.

###  

### (d)   Each Guarantor agrees that it willnot be entitled to any right of subrogation in relation to the Holders inrespect of any obligations guaranteed hereby until payment in full of allobligations guaranteed hereby.  EachGuarantor further agrees that, as between the Guarantors, on the one hand, andthe Holders and the Trustee, on the other hand, (1) the maturity of the obligationsguaranteed hereby may be accelerated as provided in Article 6 hereof for thepurposes of this Guarantee notwithstanding any stay, injunction or otherprohibition preventing such acceleration in respect of the obligationsguaranteed hereby, and (2) in the event of any declaration of acceleration ofsuch obligations as provided in Article 6 hereof, such obligations (whether ornot due and payable) will forthwith become due and payable by the Guarantorsfor the purpose of this Guarantee.  TheGuarantors will have the right to seek contribution from any non-payingGuarantor so long as the exercise of such right does not impair the rights ofthe Holders under the Guarantee.

###  

*Section 10.02.*      Limitation on Guarantor Liability.

* *

Each Guarantor, and by its acceptance of Notes, eachHolder, hereby confirms that it is the intention of all such parties that theGuarantee of such Guarantor not constitute a fraudulent transfer or conveyancefor purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, theUniform Fraudulent Transfer Act or any similar federal or state law to theextent applicable to any Guarantee.  Toeffectuate the foregoing intention, the Trustee, the Holders and the Guarantorshereby irrevocably agree that the obligations of such Guarantor will be limitedto the maximum amount that will, after giving effect to such maximum amount andall other contingent and fixed liabilities of such Guarantor that are relevantunder such laws, and after giving effect to any collections from, rights to receivecontribution from or payments made by or on behalf of any other Guarantor inrespect of the obligations of such other Guarantor under this Article 10,result in the obligations of such Guarantor under its Guarantee notconstituting a fraudulent transfer or conveyance.

 

*Section 10.03.*      Execution and Delivery of Guarantee.

* *

To evidence its Guarantee set forth in Section 10.01hereof, each Guarantor hereby agrees that a notation of such Guaranteesubstantially in the form attached as Exhibit E hereto will be endorsed by anOfficer of such Guarantor on each Note authenticated and delivered by theTrustee and that this Indenture will be executed on behalf of such Guarantor byone of its Officers.

 

Each Guarantor hereby agrees that its Guarantee setforth in Section 10.01 hereof will remain in full force and effectnotwithstanding any failure to endorse on each Note a notation of suchGuarantee.

 

If an Officer whose signature is on this Indenture oron the Guarantee no longer holds that office at the time the Trusteeauthenticates the Note on which a Guarantee is endorsed, the Guarantee will bevalid nevertheless.

 

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The delivery of any Note by the Trustee, after theauthentication thereof hereunder, will constitute due delivery of the Guaranteeset forth in this Indenture on behalf of the Guarantors.

 

In the event that the Company or any of its RestrictedSubsidiaries creates or acquires any Domestic Restricted Subsidiary after thedate of this Indenture, if required by Section 4.17 hereof, the Company willcause such Domestic Restricted Subsidiary to comply with the provisions ofSection 4.17 hereof and this Article 10, to the extent applicable.

 

*Section 10.04.*      Guarantors May Consolidate, etc., onCertain Terms.

* *

Except as otherwise provided in Section 10.05 hereof,no Guarantor may sell or otherwise dispose of all or substantially all of itsassets to, or consolidate with or merge with or into (whether or not suchGuarantor is the surviving Person) another Person, other than the Company oranother Guarantor, unless:

 

#### (1)immediately after giving effect to such transaction, no Default or Event ofDefault exists; and

####  

#### (2)either:

####  

##### (a)   subject to Section 10.05 hereof, thePerson acquiring the property in any such sale or disposition or the Personformed by or surviving any such consolidation or merger unconditionally assumesall the obligations of that Guarantor under this Indenture, its Guarantee andthe Registration Rights Agreement on the terms set forth herein or therein,pursuant to a supplemental indenture in form and substance reasonablysatisfactory to the Trustee; or

#####  

##### (b)   except in any such transaction inwhich Parent is a party, the Net Proceeds of such sale or other disposition areapplied in accordance with the applicable provisions of this Indenture,including without limitation, Section 4.10 hereof.

#####  

In case of any such consolidation, merger, sale orconveyance and upon the assumption by the successor Person, by supplementalindenture, executed and delivered to the Trustee and satisfactory in form tothe Trustee, of the Guarantee endorsed upon the Notes and the due and punctualperformance of all of the covenants and conditions of this Indenture to beperformed by the Guarantor, such successor Person will succeed to and besubstituted for the Guarantor with the same effect as if it had been namedherein as a Guarantor.  Such successorPerson thereupon may cause to be signed any or all of the Guarantees to beendorsed upon all of the Notes issuable hereunder which theretofore shall nothave been signed by the Company and delivered to the Trustee.  All the Guarantees so issued will in allrespects have the same legal rank and benefit under this Indenture as the Guaranteestheretofore and thereafter issued in accordance with the terms of thisIndenture as though all of such Guarantees had been issued at the date of theexecution hereof.

 

Except as set forth in Articles 4 and 5 hereof, andnotwithstanding clauses 2(a) and (b) above, nothing contained in this Indentureor in any of the Notes will prevent any consolidation or merger of a Guarantorwith or into the Company or another Guarantor, or will prevent any sale orconveyance of the property of a Guarantor as an entirety or substantially as anentirety to the Company or another Guarantor.

 

*Section 10.05.*      Releases.

* *

(a)           Inthe event of any sale or other disposition of all or substantially all of theassets of any Guarantor, other than Parent, (including by way of merger orconsolidation) or a sale or other disposition of all of the Capital Stock ofany Guarantor, other than Parent, in each case to a Person that is not (either

 

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before or after giving effect to such transactions) the Company or aRestricted Subsidiary of the Company, then such Guarantor (in the event of asale or other disposition, by way of merger, consolidation or otherwise, of allof the Capital Stock of such Guarantor) or the corporation acquiring theproperty (in the event of a sale or other disposition of all or substantiallyall of the assets of such Guarantor) will be released and relieved of anyobligations under its Guarantee; *provided* that the Net Proceeds of suchsale or other disposition are applied in accordance with the applicableprovisions of this Indenture, including without limitation Section 4.10hereof.  Upon delivery by the Company tothe Trustee of an Officers’ Certificate and an Opinion of Counsel to the effectthat such sale or other disposition was made by the Company in accordance withthe provisions of this Indenture, including without limitation Section 4.10hereof, the Trustee will execute any documents reasonably required in order toevidence the release of any Guarantor from its obligations under its Guarantee.

 

(b)           Upondesignation of any Guarantor, other than Parent, as an Unrestricted Subsidiaryin accordance with the terms of this Indenture, such Guarantor will be releasedand relieved of any obligations under its Guarantee.

 

(c)           UponLegal Defeasance in accordance with Article 8 hereof or satisfaction anddischarge of this Indenture in accordance with Article 11 hereof, eachGuarantor, other than Parent, will be released and relieved of any obligationsunder its Guarantee.

 

Any Guarantor not released from its obligations underits Guarantee as provided in this Section 10.05 will remain liable for the fullamount of principal of and interest and premium and Liquidated Damages, if any,on the Notes and for the other obligations of any Guarantor under this Indentureas provided in this Article 10.

 

# **ARTICLE 11**SATISFACTION AND DISCHARGE

#  

## *Section 11.01*         Satisfaction and Discharge.

## * *

This Indenture will be discharged and will cease to beof further effect as to all Notes issued hereunder, when:

 

#### (1)either:

####  

##### (a)   all Notes that have beenauthenticated, except lost, stolen or destroyed Notes that have been replacedor paid and Notes for whose payment money has been deposited in trust andthereafter repaid to the Company have been delivered to the Trustee forcancellation; or

#####  

##### (b)   all Notes that have not beendelivered to the Trustee for cancellation have become due and payable by reasonof the mailing of a notice of redemption or otherwise or will become due andpayable within one year and the Company or any Guarantor has irrevocablydeposited or caused to be deposited with the Trustee as trust funds in trustsolely for the benefit of the Holders, cash in U.S. dollars, non-callableGovernment Securities, or a combination of cash in U.S. dollars andnon-callable Government Securities, in amounts as will be sufficient, withoutconsideration of any reinvestment of interest, to pay and discharge the entireIndebtedness on the Notes not delivered to the Trustee for cancellation forprincipal, premium and Liquidated Damages, if any, and accrued interest to thedate of maturity or redemption;

#####  

#### (2) noDefault or Event of Default has occurred and is continuing on the date of thedeposit (other than a Default or Event of Default resulting from the borrowingof funds to be

 

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#### applied to such deposit) and thedeposit will not result in a breach or violation of, or constitute a defaultunder, any other instrument to which the Company or any Guarantor is a party orby which the Company or any Guarantor is bound;

####  

#### (3) theCompany or any Guarantor has paid or caused to be paid all sums payable by itunder this Indenture; and

####  

#### (4) theCompany has delivered irrevocable instructions to the Trustee under thisIndenture to apply the deposited money toward the payment of the Notes atmaturity or on the redemption date, as the case may be.

####  

In addition, the Company must deliver an Officers’Certificate and an Opinion of Counsel to the Trustee stating that allconditions precedent to satisfaction and discharge have been satisfied.

 

Notwithstanding the satisfaction and discharge of thisIndenture, if money has been deposited with the Trustee pursuant to subclause(b) of clause (1) of this Section 11.01, the provisions of Sections 11.02 and8.06 hereof will survive.  In addition,nothing in this Section 11.01 will be deemed to discharge those provisions ofSection 7.07 hereof, that, by their terms, survive the satisfaction anddischarge of this Indenture.

 

## *Section 11.02*         Application of Trust Money.

## * *

Subject to the provisions of Section 8.06 hereof, allmoney deposited with the Trustee pursuant to Section 11.01 hereof shall be heldin trust and applied by it, in accordance with the provisions of the Notes andthis Indenture, to the payment, either directly or through any Paying Agent(including the Company acting as its own Paying Agent) as the Trustee maydetermine, to the Persons entitled thereto, of the principal (and premium andLiquidated Damages, if any) and interest for whose payment such money has beendeposited with the Trustee; but such money need not be segregated from otherfunds except to the extent required by law.

 

If the Trustee or Paying Agent is unable to apply anymoney or Government Securities in accordance with Section 11.01 hereof byreason of any legal proceeding or by reason of any order or judgment of anycourt or governmental authority enjoining, restraining or otherwise prohibitingsuch application, the Company’s and any Guarantor’s obligations under thisIndenture and the Notes shall be revived and reinstated as though no deposithad occurred pursuant to Section 11.01 hereof; *provided* that if the Companyhas made any payment of principal of, premium or Liquidated Damages, if any, orinterest on, any Notes because of the reinstatement of its obligations, theCompany shall be subrogated to the rights of the Holders of such Notes toreceive such payment from the money or Government Securities held by theTrustee or Paying Agent.

 

# **ARTICLE 12**MISCELLANEOUS

#  

## *Section 12.01*         Trust Indenture Act Controls.

## * *

If any provision of this Indenture limits, qualifiesor conflicts with the duties imposed by TIA §318(c), the imposed duties willcontrol.

 

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## *Section 12.02*         Notices.

## * *

Any notice or communication by the Company, anyGuarantor or the Trustee to the others is duly given if in writing anddelivered in Person or by first class mail (registered or certified, returnreceipt requested), facsimile transmission or overnight air courierguaranteeing next day delivery, to the others’ address:

 

If to the Company and/or any Guarantor:

 

UbiquiTel Operating CompanyOne West Elm StreetConshohocken, Pennsylvania 19428Facsimile No.:  (610) 832-3400Attention:  Chief Financial Officer

 

With a copy to:Greenberg Traurig, P.A.1221 Brickell AvenueMiami, Florida  33131Facsimile No.:  (305) 961-5642Attention:  Andrew Balog, Esq.

 

If to the Trustee:The Bank of New York101 Barclay Street, Floor 8 WestNew York, New York 10286Facsimile No.:  (212) 815-5707Attention:  Corporate TrustAdministration

 

The Company, anyGuarantor or the Trustee, by notice to the others, may designate additional ordifferent addresses for subsequent notices or communications.

 

All notices andcommunications (other than those sent to Holders) will be deemed to have beenduly given: at the time delivered by hand, if personally delivered; fiveBusiness Days after being deposited in the mail, postage prepaid, if mailed;when receipt acknowledged, if transmitted by facsimile; and the next Business Dayafter timely delivery to the courier, if sent by overnight air courierguaranteeing next day delivery.

 

Any notice orcommunication to a Holder will be mailed by first class mail, certified orregistered, return receipt requested, or by overnight air courier guaranteeingnext day delivery to its address shown on the register kept by theRegistrar.  Any notice or communicationwill also be so mailed to any Person described in TIA § 313(c), to theextent required by the TIA.  Failure tomail a notice or communication to a Holder or any defect in it will not affectits sufficiency with respect to other Holders.

 

If a notice orcommunication is mailed in the manner provided above within the timeprescribed, it is duly given, whether or not the addressee receives it.

 

If the Companymails a notice or communication to Holders, it will mail a copy to the Trusteeand each Agent at the same time.

 

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## *Section 12.03*         Communication by Holders of Noteswith Other Holders of Notes.

## * *

Holders maycommunicate pursuant to TIA § 312(b) with other Holders with respect totheir rights under this Indenture or the Notes.  The Company, the Trustee, the Registrar and anyone else shallhave the protection of TIA § 312(c).

 

## *Section 12.04*         Certificate and Opinion as toConditions Precedent.

 

Upon any requestor application by the Company to the Trustee to take any action under thisIndenture, the Company shall furnish to the Trustee:

 

#### (1) anOfficers’ Certificate in form and substance reasonably satisfactory to theTrustee (which must include the statements set forth in Section 12.05 hereof)stating that, in the opinion of the signers, all conditions precedent andcovenants, if any, provided for in this Indenture relating to the proposed actionhave been satisfied; and

####  

#### (2) anOpinion of Counsel in form and substance reasonably satisfactory to the Trustee(which must include the statements set forth in Section 12.05 hereof) statingthat, in the opinion of such counsel, all such conditions precedent andcovenants have been satisfied.

####  

## *Section 12.05*         Statements Required in Certificate orOpinion.

## * *

Each certificate or opinion with respect to compliancewith a condition or covenant provided for in this Indenture (other than acertificate provided pursuant to TIA § 314(a)(4)) must comply with theprovisions of TIA § 314(e) and must include:

 

#### (1) astatement that the Person making such certificate or opinion has read suchcovenant or condition;

####  

#### (2) abrief statement as to the nature and scope of the examination or investigationupon which the statements or opinions contained in such certificate or opinionare based;

####  

#### (3) astatement that, in the opinion of such Person, he or she has made suchexamination or investigation as is necessary to enable him or her to express aninformed opinion as to whether or not such covenant or condition has beensatisfied; and

####  

#### (4) astatement as to whether or not, in the opinion of such Person, such conditionor covenant has been satisfied.

####  

## *Section 12.06*         Rules by Trustee and Agents.

## * *

The Trustee may make reasonable rules for action by orat a meeting of Holders.  The Registraror Paying Agent may make reasonable rules and set reasonable requirements forits functions.

 

## *Section 12.07*         No Personal Liability of Directors, Officers,Employees and Stockholders.

## * *

No director, officer, employee, incorporator orstockholder of the Company or any Guarantor, as such, will have any liabilityfor any obligations of the Company or the Guarantors under the Notes, thisIndenture or the Guarantees, or for any claim based on, in respect of, or byreason of, such obligations or their creation. Each Holder of Notes byaccepting a Note waives and releases all such liability. The waiver and releaseare part of the consideration for issuance of the Notes. The waiver may not beeffective to waive liabilities under the federal securities laws.

 

77

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## *Section 12.08*         Governing Law.

## * *

THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERNAND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUTGIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THATTHE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

## *Section 12.09*         No Adverse Interpretation of OtherAgreements.

## * *

This Indenture may not be used to interpret any otherindenture, loan or debt agreement of the Company or its Subsidiaries or of anyother Person.  Any such indenture, loanor debt agreement may not be used to interpret this Indenture.

 

## *Section 12.10*         Successors.

## * *

All agreements of the Company in this Indenture andthe Notes will bind its successors.  Allagreements of the Trustee in this Indenture will bind its successors.  All agreements of each Guarantor in thisIndenture will bind its successors, except as otherwise provided in Section10.05 hereof.

 

## *Section 12.11*         Severability.

## * *

In case any provision in this Indenture or in theNotes is invalid, illegal or unenforceable, the validity, legality andenforceability of the remaining provisions will not in any way be affected orimpaired thereby.

 

## *Section 12.12*         Counterpart Originals.

## * *

The parties may sign any number of copies of thisIndenture.  Each signed copy will be anoriginal, but all of them together represent the same agreement.

 

## *Section 12.13*         Table of Contents, Headings, etc.

## * *

The Table of Contents, Cross-Reference Table andHeadings of the Articles and Sections of this Indenture have been inserted forconvenience of reference only, are not to be considered a part of this Indentureand will in no way modify or restrict any of the terms or provisions hereof.

 

[Signatures on followingpage]

 

78

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SIGNATURES

 

 
| Dated as of February 23, 2004 |                         |
|-------------------------------|------------------------------|
|                          | UBIQUITEL OPERATING  COMPANY |
|                          |                         |   |
|                          |                         |   |
|                          | By:                          |   |
|                          |                         | Name: Donald A. Harris |
|                          |                         | Title: President and  Chief Executive Officer |
|                          |                         |   |
|                          |                         |   |
|                          | UBIQUITEL INC.               |
|                          |                         |   |
|                          |                         |   |
|                          | By:                          |   |
|                          |                         | Name: Donald A. Harris |
|                          |                         | Title: President and  Chief Executive Officer |
|                          |                         |   |
|                          |                         |   |
|                          | THE BANK OF NEW YORK         |
|                          |                         |   |
|                          |                         |   |
|                          | By:                          |   |
|                          |                         | Name: |
|                          |                         | Title: |

 

----

 

EXHIBITA

 

[Face of Note]

 

CUSIP/CINS                       

 

97/8%Senior Notes due 2011

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

 

UBIQUITEL OPERATINGCOMPANY

 

promises to pay to[              ]or registered assigns,

 

the principal sum of                                                                                                                      DOLLARS on March 1, 2011.

 

Interest Payment Dates:                                     and                             

 

Record Dates:                                     and                           

 

Dated:                            ,200   

 
|   | UBIQUITEL OPERATING  COMPANY |
|--------|------------------------------|
|   |                         |
|   |                         |
|   | By:                          |   |
|   |                         | Name: |
|   |                         | Title: |

 

This is one of the Notesreferred toin the within-mentioned Indenture:

 
| THE  BANK OF NEW YORK,  as Trustee |                 |
|------------------------------------|----------------------|
|                               |                 |
|                               |                 |
| By:                                |                 |   |   |
|                               | Authorized Signatory |   |   |
|                               |                 |

 

 

A-1

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97/8% Senior Notes due 2011

 

*[Insertthe Global Note Legend, if applicable pursuant to the provisions of theIndenture]*

 

*[Insertthe Private Placement Legend, if applicable pursuant to the provisions of theIndenture]*

 

Capitalized terms used herein have the meaningsassigned to them in the Indenture referred to below unless otherwise indicated.

 

#### (1) *INTEREST*.  UbiquiTel Operating Company, a Delawarecorporation (the “*Company*”),promises to pay interest on the principal amount of this Note at 97/8%per annum from                                     ,20     until maturity and shall pay the Liquidated Damages,if any, payable pursuant to Section 5 of the Registration Rights Agreementreferred to below.  The Company will payinterest and Liquidated Damages, if any, semi-annually in arrears on March 1and September 1 of each year, or if any such day is not a Business Day, on thenext succeeding Business Day (each, an “*InterestPayment Date*”).  Interest onthe Notes will accrue from the most recent date to which interest has been paidor, if no interest has been paid, from the date of issuance; *provided*that if there is no existing Default in the payment of interest, and if thisNote is authenticated between a record date referred to on the face hereof andthe next succeeding Interest Payment Date, interest shall accrue from such nextsucceeding Interest Payment Date; *provided further* that the first InterestPayment Date shall be                               ,20     . The Company will pay interest (includingpost-petition interest in any proceeding under any Bankruptcy Law) on overdueprincipal and premium, if any, from time to time on demand at a rate that is 1%per annum in excess of the rate then in effect to the extent lawful; it willpay interest (including post-petition interest in any proceeding under anyBankruptcy Law) on overdue installments of interest and Liquidated Damages, ifany, (without regard to any applicable grace periods) from time to time ondemand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve30-day months.

####  

#### (2) *METHOD OFPAYMENT*.  The Company willpay interest on the Notes (except defaulted interest) and Liquidated Damages,if any, to the Persons who are registered Holders of Notes at the close ofbusiness on the August 15 or February 15 next preceding the Interest PaymentDate, even if such Notes are canceled after such record date and on or beforesuch Interest Payment Date, except as provided in Section 2.12 of the Indenturewith respect to defaulted interest.  TheNotes will be payable as to principal, premium and Liquidated Damages, if any,and interest at the office or agency of the Company maintained for such purposewithin or without the City and State of New York, or, at the option of theCompany, payment of interest and Liquidated Damages, if any, may be made bycheck mailed to the Holders at their addresses set forth in the register ofHolders; *provided*that payment by wire transfer of immediately available funds will be requiredwith respect to principal of and interest, premium and Liquidated Damages, ifany, on, all Global Notes and all other Notes the Holders of which will haveprovided wire transfer instructions to the Company or the Paying Agent.  Such payment will be in such coin orcurrency of the United States of America as at the time of payment is legaltender for payment of public and private debts.

####  

#### (3) *PAYING AGENTAND REGISTRAR*.  Initially,The Bank of New  York, the Trustee underthe Indenture, will act as Paying Agent and Registrar.  The Company may change any Paying Agent orRegistrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

 

A-2

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#### (4) *INDENTURE*.  The Company issued the Notes under anIndenture dated as of February 23, 2004 (the “*Indenture*”)among the Company, the Guarantor(s) and the Trustee.  The terms of the Notes include those stated in the Indenture andthose made part of the Indenture by reference to the TIA.  The Notes are subject to all such terms, andHolders are referred to the Indenture and such Act for a statement of suchterms.  To the extent any provision ofthis Note conflicts with the express provisions of the Indenture, theprovisions of the Indenture shall govern and be controlling.  The Notes are unsecured obligations of theCompany.  The Indenture does not limitthe aggregate principal amount of Notes that may be issued thereunder.

####  

#### (5) *OPTIONALREDEMPTION.*

####  

### (a)   Except as set forth in subparagraph(b) of this Paragraph 5, the Company will not have the option to redeem theNotes prior to March 1, 2007.  On orafter March 1, 2007, the Company will have the option to redeem all or a partof the Notes upon not less than 30 nor more than 60 days’ notice, at theredemption prices (expressed as percentages of principal amount) set forthbelow plus accrued and unpaid interest and Liquidated Damages, if any, on theNotes redeemed to the applicable redemption date, if redeemed during thetwelve-month period beginning on March 1st of the years indicatedbelow, subject to the rights of Holders on the relevant record date to receiveinterest on the relevant interest payment date:

 
| **Year**             |   | **Percentage** |   |
|----------------------|--------|----------------|--------|
| 2007                 |   | 107.406        | %      |
| 2008                 |   | 104.938        | %      |
| 2009                 |   | 102.469        | %      |
| 2010 and  thereafter |   | 100.000        | %      |

 

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

 

### (b)   Notwithstanding the provisions ofsubparagraph (a) of this Paragraph 5, at any time prior to March 1, 2007, theCompany may on any one or more occasions redeem up to 35% of the aggregateprincipal amount of Notes issued under the Indenture with the net cash proceedsof a sale of Equity Interests (other than Disqualified Stock) of the Company ora contribution of the Company’s common equity capital at a redemption priceequal to 109.875% of the aggregate principal amount thereof, plus accrued andunpaid interest and Liquidated Damages, if any to the redemption date; *provided*that at least 65% in aggregate principal amount of the Notes originally issuedunder the Indenture (excluding Notes held by the Company and its Subsidiaries)remains outstanding immediately after the occurrence of such redemption andthat such redemption occurs within 45 days of the date of the closing of suchsale of Equity Interests or contribution.

###  

#### (6) *MANDATORYREDEMPTION.*

####  

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

 

#### (7) *REPURCHASE**AT THE OPTION OF THE HOLDER.*

####  

##### (a)   If there is a Change of Control, theCompany will be required to make an offer (a “*Changeof Control Offer*”) to each Holder to repurchase all or any part(equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at apurchase price in cash equal to 101% of the aggregate principal amount thereofplus accrued and unpaid interest and Liquidated Damages, if any, thereon to thedate of purchase, subject to the rights of Holders on the relevant

 

A-3

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##### recorddate to receive interest due on the relevant interest payment date (the “*Change of Control Payment*”).  Within ten days following any Change ofControl, the Company will mail a notice to each Holder setting forth theprocedures governing the Change of Control Offer as required by the Indenture.

#####  

##### (b)   If the Company or a RestrictedSubsidiary of the Company consummates any Asset Sales, within 30 days of eachdate on which the aggregate amount of Excess Proceeds exceeds $10.0 million,the Company will commence an offer to all Holders of Notes and all holders ofother Indebtedness that is *pari passu* with the Notes containingprovisions similar to those set forth in the Indenture with respect to offersto purchase or redeem with the proceeds of sales of assets (an “*Asset Sale Offer*”) pursuant to Section3.09 of the Indenture to purchase the maximum principal amount of Notes(including any Additional Notes) and such other *pari passu* Indebtedness thatmay be purchased out of the Excess Proceeds at an offer price in cash in anamount equal to 100% of the  principalamount thereof plus accrued and unpaid interest and Liquidated Damages, if any,thereon to the date of purchase, in accordance with the procedures set forth inthe Indenture.  To the extent that theaggregate amount of Notes (including any Additional Notes) and other *pari passu*Indebtedness tendered pursuant to an Asset Sale Offer is less than the ExcessProceeds, the Company (or such Restricted Subsidiary) may use such deficiencyfor any purpose not otherwise prohibited by the Indenture.  If the aggregate principal amount of Notesand other *paripassu* Indebtedness tendered into such Asset Sale Offer exceeds theamount of Excess Proceeds, the Trustee shall select the Notes and such other *pari passu*Indebtedness to be purchased on a *pro rata*basis.  Holders of Notes that are thesubject of an offer to purchase will receive an Asset Sale Offer from theCompany prior to any related purchase date and may elect to have such Notespurchased by completing the form entitled “*Optionof Holder to Elect Purchase*” attached to the Notes.

#####  

#### (8) *NOTICE OFREDEMPTION*.  Notice ofredemption will be mailed at least 30 days but not more than 60 days before theredemption date to each Holder whose Notes are to be redeemed at its registeredaddress, except that redemption notices may be mailed more than 60 days priorto a redemption date if the notice is issued in connection with a defeasance ofthe Notes or a satisfaction or discharge of the Indenture.  Notes in denominations larger than $1,000may be redeemed in part but only in whole multiples of $1,000, unless all ofthe Notes held by a Holder are to be redeemed.

####  

#### (9) *DENOMINATIONS,TRANSFER, EXCHANGE*.  TheNotes are in registered form without coupons in denominations of $1,000 andintegral multiples of $1,000.  Thetransfer of Notes may be registered and Notes may be exchanged as provided inthe Indenture.  The Registrar and theTrustee may require a Holder, among other things, to furnish appropriateendorsements and transfer documents and the Company may require a Holder to payany taxes and fees required by law or permitted by the Indenture.  The Company need not exchange or registerthe transfer of any Note or portion of a Note selected for redemption, exceptfor the unredeemed portion of any Note being redeemed in part.  Also, the Company need not exchange orregister the transfer of any Notes for a period of 15 days before a selectionof Notes to be redeemed or during the period between a record date and thecorresponding Interest Payment Date.

####  

#### (10) *PERSONSDEEMED OWNERS*.  Theregistered Holder of a Note may be treated as its owner for all purposes.

####  

#### (11) *AMENDMENT,SUPPLEMENT AND WAIVER*. Subject to certain exceptions, the Indenture or the Notes or theGuarantees may be amended or supplemented with the consent of the Holders of atleast a majority in aggregate principal amount of the then outstanding Notesincluding

 

A-4

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#### Additional Notes, if any, voting as asingle class, and any existing Default or Event or Default or compliance withany provision of the Indenture or the Notes or the Guarantees may be waivedwith the consent of the Holders of a majority in aggregate principal amount ofthe then outstanding Notes including Additional Notes, if any, voting as asingle class.  Without the consent ofany Holder of a Note, the Indenture or the Notes or the Guarantees may beamended or supplemented to cure any ambiguity, defect or inconsistency, toprovide for uncertificated Notes in addition to or in place of certificatedNotes, to provide for the assumption of the Company’s or a Guarantor’sobligations to Holders of the Notes and Guarantees in case of a merger orconsolidation, to make any change that would provide any additional rights orbenefits to the Holders of the Notes or that does not adversely affect thelegal rights under the Indenture of any such Holder, to comply with therequirements of the SEC in order to effect or maintain the qualification of theIndenture under the TIA, to conform the text of the Indenture or the Notes toany provision of the “Description of Notes” section of the Company’s OfferingMemorandum dated February 19, 2004, relating to the initial offering of theNotes, to the extent that such provision in that “Description of Notes” wasintended to be a verbatim recitation of a provision of the Indenture, the Notesor the Guarantees; to provide for the issuance of Additional Notes inaccordance with the limitations set forth in the Indenture; or to allow anyGuarantor to execute a supplemental indenture to the Indenture and/or aGuarantee with respect to the Notes.

####  

#### (12) *DEFAULTS ANDREMEDIES*.  Events of Defaultinclude:  (i) default for 30 days in thepayment when due of interest on, or Liquidated Damages, if any, with respect tothe Notes; (ii) default in the payment when due (at maturity, upon redemptionor otherwise) of the principal of, or premium, if any, on, the Notes, (iii)failure by the Company or any of its Restricted Subsidiaries to comply withSection 4.07, 4.09, 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by theCompany or any of its Restricted Subsidiaries for 60 days after notice to theCompany by the Trustee or the Holders of at least 25% in aggregate principalamount of the Notes including Additional Notes, if any, then outstanding votingas a single class to comply with any of the other agreements in the Indentureor the Notes; (v) default under any mortgage, indenture or instrument underwhich there may be issued or by which there may be secured or evidenced anyIndebtedness for money borrowed by the Company or any of its RestrictedSubsidiaries (or the payment of which is guaranteed by the Company or any ofits Restricted Subsidiaries), whether such Indebtedness or Guarantee nowexists, or is created after the date of the Indenture, if that default: (a) iscaused by a failure to pay principal of, or interest or premium, if any, on,such Indebtedness prior to the expiration of the grace period provided in suchIndebtedness on the date of such default (a “*PaymentDefault*”) or (b) results in the acceleration of such Indebtednessprior to its express maturity, and, in each case, the principal amount of anysuch Indebtedness, together with the principal amount of any other suchIndebtedness under which there has been a Payment Default or the maturity ofwhich has been so accelerated, aggregates $7.5 million or more; or; (vi)certain final judgments for the payment of money that remain undischarged for aperiod of 60 days; (vii) certain events of bankruptcy or insolvency withrespect to the Company or any of its Restricted Subsidiaries that is aSignificant Subsidiary or any group of Restricted Subsidiaries that, takentogether, would constitute a Significant Subsidiary; and (ix) except aspermitted by the Indenture, any Guarantee is held in any judicial proceeding tobe unenforceable or invalid or ceases for any reason to be in full force andeffect or any Guarantor or any Person acting on its behalf denies or disaffirmsits obligations under such Guarantor’s Guarantee.  If any Event of Default occurs and is continuing, the Trustee orthe Holders of at least 25% in aggregate principal amount of the thenoutstanding Notes may declare all the Notes to be due and payableimmediately.  Notwithstanding theforegoing, in the case of an Event of Default arising from certain events ofbankruptcy or insolvency, all outstanding Notes will become due and payableimmediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided inthe Indenture.  Subject to certainlimitations, Holders of a majority in

 

A-5

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#### aggregate principal amount of thethen outstanding Notes may direct the Trustee in its exercise of any trust orpower.  The Trustee may withhold fromHolders of the Notes notice of any continuing Default or Event of Default(except a Default or Event of Default relating to the payment of principal orinterest or premium or Liquidated Damages, if any,) if it determines thatwithholding notice is in their interest. The Holders of a majority in aggregate principal amount of the thenoutstanding Notes by notice to the Trustee may, on behalf of the Holders of allof the Notes, rescind an acceleration or waive any existing Default or Event ofDefault and its consequences under the Indenture except a continuing Default orEvent of Default in the payment of interest or premium or Liquidated Damages,if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statementregarding compliance with the Indenture, and the Company is required, uponbecoming aware of any Default or Event of Default, to deliver to the Trustee astatement specifying such Default or Event of Default.

####  

#### (13) *TRUSTEEDEALINGS WITH COMPANY*.  TheTrustee, in its individual or any other capacity, may make loans to, acceptdeposits from, and perform services for the Company or its Affiliates, and mayotherwise deal with the Company or its Affiliates, as if it were not theTrustee.

####  

#### (14) *NO RECOURSEAGAINST OTHERS*.  A director,officer, employee, incorporator or stockholder of the Company or anyGuarantors, as such, will not have any liability for any obligations of theCompany or the Guarantors under the Notes, the Guarantees or the Indenture orfor any claim based on, in respect of, or by reason of, such obligations ortheir creation.  Each Holder byaccepting a Note waives and releases all such liability.  The waiver and release are part of the considerationfor the issuance of the Notes.  Thewaiver may not be effective to waive liabilities under the federal securitieslaws.

####  

#### (15) *AUTHENTICATION*.  This Note will not be valid untilauthenticated by the manual signature of the Trustee or an authenticatingagent.

####  

#### (16) *ABBREVIATIONS*.  Customary abbreviations may be used in the nameof a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JTTEN (= joint tenants with right of survivorship and not as tenants in common),CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

####  

#### (17) *ADDITIONALRIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES*.  In addition to the rights provided toHolders of Notes under the Indenture, Holders of Restricted Global Notes andRestricted Definitive Notes will have all the rights set forth in theRegistration Rights Agreement dated as of February 23, 2004, among the Company,the Guarantor and the other parties named on the signature pages thereof, assuch agreement may be amended, modified or supplemented from time to time and,with respect to any Additional Notes, Holders of Restricted Global Notes andRestricted Definitive Notes will have the rights set forth in one or moreregistration rights agreements, if any, among the Company, the Guarantor andthe other parties thereto, as such agreement(s) may be amended, modified orsupplemented from time to time, relating to rights given by the Company to thepurchasers of Additional Notes to register such Additional Notes under theSecurities Act (collectively, the “*RegistrationRights Agreement*”).

####  

#### (18) *CUSIPNUMBERS*.  Pursuant to arecommendation promulgated by the Committee on Uniform Security IdentificationProcedures, the Company has caused CUSIP numbers to be printed on the Notes,and the Trustee may use CUSIP numbers in notices of redemption as a convenienceto Holders.  No representation is madeas to the accuracy of such numbers either as

 

A-6

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#### printed on the Notes or as containedin any notice of redemption, and reliance may be placed only on the otheridentification numbers placed thereon.

####  

#### (19) *GOVERNINGLAW.*  THE INTERNAL LAW OF THE STATE OF NEWYORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THEGUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWTO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BEREQUIRED THEREBY.

 

The Company will furnish to any Holder upon writtenrequest and without charge a copy of the Indenture and/or the Registration RightsAgreement.  Requests may be made to:

 

UbiquiTel Operating Company

One West Elm Street

Conshohocken, Pennsylvania 19428

Attention: Chief Financial Officer

 

A-7

----

 

ASSIGNMENT FORM

 

To assign this Note, fill in the form below:

 
| (I) or (we) assign and transfer this Note to:                                                               |
|-------------------------------------------------------------------------------------------------------------|
|                                                                                                        | (Insert assignee’s legal name) |
|                                                                                                        |
|                                                                                                        |
| (Insert assignee’s soc.  sec. or tax I.D. no.)                                                         |
|                                                                                                        |
|                                                                                                        |
|                                                                                                        |
|                                                                                                        |
|                                                                                                        |
| (Print or type  assignee’s name, address and zip code)                                                 |
|                                                                                                        |
| and irrevocably appoint                                                                                     |
| to transfer this Note on the books of the  Company.  The agent may substitute  another to act for him. |

 

 
| Date:                 |                                                          |   |
|-----------------------|---------------------------------------------------------------|--------|
|                  |
|                  | Your Signature:                                               |   |
|                  | (Sign exactly as your  name appears on the face of this Note) |
|                  |
| Signature Guarantee*: |                                                          |   |
|                       |                                                               |        |  |  |  |  |

 

----

*              Participantin a recognized Signature Guarantee Medallion Program (or other signatureguarantor acceptable to the Trustee).

 

A-8

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OPTION OF HOLDER TO ELECTPURCHASE

 

If you want to elect to have this Note purchased bythe Company pursuant to Section 4.10 or 4.15 of the Indenture, check theappropriate box below:

 

oSection 4.10       oSection4.15

 

If you want to elect to have only part of the Notepurchased by the Company pursuant to Section 4.10 or Section 4.15 of theIndenture, state the amount you elect to have purchased:

 

 
|                  | $                                                             |
|-----------------------|---------------------------------------------------------------|
|                  |
| Date:                 |                                                          |   |
|                  |
|                  | Your Signature:                                               |   |
|                  | (Sign exactly as your  name appears on the face of this Note) |
|                  |                                                          |
|                  | Tax Identification No.:                                       |   |
|                  |                                                          |
| Signature Guarantee*: |                                                          |   |
|                       |                                                               |  |  |  |  |  |  |  |

 

----

*              Participantin a recognized Signature Guarantee Medallion Program (or other signatureguarantor acceptable to the Trustee).

 

A-9

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SCHEDULE OF EXCHANGES OFINTERESTS IN THE GLOBAL NOTE *

 

The followingexchanges of a part of this Global Note for an interest in another Global Noteor for a Definitive Note, or exchanges of a part of another Global Note orDefinitive Note for an interest in this Global Note, have been made:

 
| **Date of  Exchange** |   | **Amount of  decrease in  Principal Amount   of  this Global Note** |   | **Amount of  increase in  Principal Amount   of  this Global Note** |   | **Principal  Amount   of this Global Note  following such  decrease  (or increase)** |   | **Signature  of authorized  officer of Trustee or  Custodian** |   |
|-----------------------|--------|---------------------------------------------------------------------|--------|---------------------------------------------------------------------|--------|--------------------------------------------------------------------------------------|--------|----------------------------------------------------------------|--------|
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |
|                  |   |                                                                |   |                                                                |   |                                                                                 |   |                                                           |   |

 

 

----

*      *This schedule should be included onlyif the Note is issued in global form*.

 

A-10

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EXHIBITB

 

FORM OF CERTIFICATE OFTRANSFER

 

UbiquiTel Operating Company

One West Elm Street

Conshohocken, Pennsylvania 19428

 

The Bank of New York

101 Barclay Street-8 West

New York, New York 10286

 

 

Re:  97/8%Senior Notes due 2011

 

Reference ishereby made to the Indenture, dated as of February 23, 2004 (the “*Indenture*”),among UbiquiTel Operating Company, as issuer (the “*Company*”), UbiquiTel Inc.,as guarantor, and The Bank of New York, as trustee.  Capitalized terms used but not defined herein shall have themeanings given to them in the Indenture.

 

                                         ,(the “*Transferor*”)owns and proposes to transfer the Note[s] or interest in such Note[s] specifiedin Annex A hereto, in the principal amount of$                       in such Note[s] or interests (the “*Transfer*”), to                                       (the “*Transferee*”),as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

 

[CHECK ALL THAT APPLY]

 

1.  **o**  **Check ifTransferee will take delivery of a beneficial interest in the 144A Global Noteor a Restricted Definitive Note pursuant to Rule 144A**.  The Transfer is being effected pursuant toand in accordance with Rule 144A under the Securities Act of 1933, as amended(the “*SecuritiesAct*”), and, accordingly, the Transferor hereby further certifiesthat the beneficial interest or Definitive Note is being transferred to aPerson that the Transferor reasonably believes is purchasing the beneficialinterest or Definitive Note for its own account, or for one or more accountswith respect to which such Person exercises sole investment discretion, andsuch Person and each such account is a “qualified institutional buyer” withinthe meaning of Rule 144A in a transaction meeting the requirements of Rule144A, and such Transfer is in compliance with any applicable blue skysecurities laws of any state of the United States.  Upon consummation of the proposed Transfer in accordance with theterms of the Indenture, the transferred beneficial interest or Definitive Notewill be subject to the restrictions on transfer enumerated in the PrivatePlacement Legend printed on the 144A Global Note and/or the RestrictedDefinitive Note and in the Indenture and the Securities Act.

 

2.  o**Checkif Transferee will take delivery of a beneficial interest in the Regulation SGlobal Note or a Restricted Definitive Note pursuant to Regulation S**.  The Transfer is being effected pursuant toand in accordance with Rule 903 or Rule 904 under the Securities Act and,accordingly, the Transferor hereby further certifies that (i) the Transfer isnot being made to a Person in the United States and (x) at the time the buyorder was originated, the Transferee was outside the United States or suchTransferor and any Person acting on its behalf reasonably believed and believesthat the Transferee was outside the United States or (y) the transaction wasexecuted in, on or through the facilities of a designated offshore securitiesmarket and neither such Transferor nor any Person acting on its behalf knowsthat the transaction was prearranged with a buyer in the United States, (ii) nodirected selling efforts have been made in contravention of the requirements ofRule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) thetransaction is not part of a plan or scheme to evade the registration requirementsof the Securities Act and (iv) if the proposed transfer is being made prior tothe expiration of

 

B-1

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the Restricted Period, the transfer is not being made to a U.S. Personor for the account or benefit of a U.S. Person (other than an InitialPurchaser).  Upon consummation of theproposed transfer in accordance with the terms of the Indenture, thetransferred beneficial interest or Definitive Note will be subject to therestrictions on Transfer enumerated in the Private Placement Legend printed onthe Regulation S Global Note and/or the Restricted Definitive Note and in theIndenture and the Securities Act.

 

3.  o  **Check and complete if Transferee will take delivery ofa beneficial interest in the IAI Global Note or a Restricted Definitive Notepursuant to any provision of the Securities Act other than Rule 144A orRegulation S**.  TheTransfer is being effected in compliance with the transfer restrictionsapplicable to beneficial interests in Restricted Global Notes and RestrictedDefinitive Notes and pursuant to and in accordance with the Securities Act andany applicable blue sky securities laws of any state of the United States, andaccordingly the Transferor hereby further certifies that (check one):

 

(a)           o  such Transfer is being effected pursuant toand in accordance with Rule 144 under the Securities Act;

 

or

 

(b)           o  such Transfer is being effected to theCompany or a subsidiary thereof;

 

or

 

(c)           o  such Transfer is being effected pursuant toan effective registration statement under the Securities Act and in compliancewith the prospectus delivery requirements of the Securities Act;

 

or

 

(d)           o  such Transfer is being effected to anInstitutional Accredited Investor and pursuant to an exemption from theregistration requirements of the Securities Act other than Rule 144A, Rule 144,Rule 903 or Rule 904, and the Transferor hereby further certifies that it hasnot engaged in any general solicitation within the meaning of Regulation Dunder the Securities Act and the Transfer complies with the transferrestrictions applicable to beneficial interests in a Restricted Global Note orRestricted Definitive Notes and the requirements of the exemption claimed,which certification is supported by (1) a certificate executed by theTransferee in the form of Exhibit D to the Indenture and (2) if such Transferis in respect of a principal amount of Notes at the time of transfer of lessthan $250,000, an Opinion of Counsel provided by the Transferor or the Transferee(a copy of which the Transferor has attached to this certification), to theeffect that such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transferin accordance with the terms of the Indenture, the transferred beneficialinterest or Definitive Note will be subject to the restrictions on transferenumerated in the Private Placement Legend printed on the IAI Global Noteand/or the Restricted Definitive Notes and in the Indenture and the SecuritiesAct.

 

4.  o  **Check if Transferee will take delivery of a beneficialinterest in an Unrestricted Global Note or of an Unrestricted Definitive Note**.

 

(a)  o  **Check if Transfer is pursuant to Rule 144**.  (i) The Transfer is being effected pursuantto and in accordance with Rule 144 under the Securities Act and in compliancewith the transfer restrictions contained in the Indenture and any applicableblue sky securities laws of any state of the United States and (ii) therestrictions on transfer contained in the Indenture and the Private Placement

 

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Legend are not required in order to maintain compliance with theSecurities Act.  Upon consummation ofthe proposed Transfer in accordance with the terms of the Indenture, the transferredbeneficial interest or Definitive Note will no longer be subject to therestrictions on transfer enumerated in the Private Placement Legend printed onthe Restricted Global Notes, on Restricted Definitive Notes and in theIndenture.

 

(b)  o  **Check if Transfer is Pursuant to Regulation S**.  (i) The Transfer is being effected pursuantto and in accordance with Rule 903 or Rule 904 under the Securities Act and incompliance with the transfer restrictions contained in the Indenture and anyapplicable blue sky securities laws of any state of the United States and (ii)the restrictions on transfer contained in the Indenture and the PrivatePlacement Legend are not required in order to maintain compliance with theSecurities Act.  Upon consummation ofthe proposed Transfer in accordance with the terms of the Indenture, thetransferred beneficial interest or Definitive Note will no longer be subject tothe restrictions on transfer enumerated in the Private Placement Legend printedon the Restricted Global Notes, on Restricted Definitive Notes and in theIndenture.

 

(c)  o  **Check if Transfer is Pursuant to Other Exemption**.  (i) The Transfer is being effected pursuantto and in compliance with an exemption from the registration requirements ofthe Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliancewith the transfer restrictions contained in the Indenture and any applicableblue sky securities laws of any State of the United States and (ii) therestrictions on transfer contained in the Indenture and the Private PlacementLegend are not required in order to maintain compliance with the SecuritiesAct.  Upon consummation of the proposedTransfer in accordance with the terms of the Indenture, the transferredbeneficial interest or Definitive Note will not be subject to the restrictionson transfer enumerated in the Private Placement Legend printed on theRestricted Global Notes or Restricted Definitive Notes and in the Indenture.

 

This certificateand the statements contained herein are made for your benefit and the benefitof the Company.

 

 
|   |                         |   |
|--------|------------------------------|--------|
|   | [Insert Name of  Transferor] |
|   |                         |
|   |                         |
|   | By:                          |   |   |
|   |                         | Name:  |   |
|   |                         | Title: |   |
|   |                         |
| Dated: |                         |   |   |
|        |                              |        |  |  |  |

 

B-3

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ANNEX A TO CERTIFICATE OFTRANSFER

 

1.             TheTransferor owns and proposes to transfer the following:

 

[CHECK ONE OF (a) OR (b)]

 

(a)   o  a beneficial interest in the:

 

(i)          o  144A Global Note (CUSIP                     ),or

 

(ii)         o  Regulation S Global Note (CUSIP                     ),or

 

(iii)        o   IAI Global Note (CUSIP                       );or

 

(b)   o  a Restricted Definitive Note.

 

2.             Afterthe Transfer the Transferee will hold:

 

[CHECK ONE]

 

(a)   o  a beneficial interest in the:

 

(i)          o  144A Global Note (CUSIP                      ),or

 

(ii)         o  Regulation S Global Note (CUSIP                      ),or

 

(iii)        o  IAI Global Note (CUSIP                      );or

 

(iv)        o  Unrestricted Global Note (CUSIP                      );or

 

(b)   o  a Restricted Definitive Note; or

 

(c)   o  an Unrestricted Definitive Note,

 

in accordance with theterms of the Indenture.

 

B-4

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EXHIBITC

 

FORM OF CERTIFICATE OFEXCHANGE

 

UbiquiTel Operating Company

One West Elm Street

Conshohocken, Pennsylvania 19428

 

The Bank of New York

101 Barclay Street-8 West

New York, New York 10286

 

Re:  97/8Senior Notes due 2011

 

(CUSIP                )

 

Reference is hereby made to the Indenture, dated as ofFebruary 23, 2004 (the “*Indenture*”), among UbiquiTel OperatingCompany, as issuer (the “*Company*”), UbiquiTel Inc., as guarantor,and The Bank of New York, as trustee. Capitalized terms used but not defined herein shall have the meaningsgiven to them in the Indenture.

 

                                            ,(the “*Owner*”)owns and proposes to exchange the Note[s] or interest in such Note[s] specifiedherein, in the principal amount of $                     in such Note[s] or interests (the “*Exchange*”).  In connection with the Exchange, the Owner hereby certifies that:

 

1.       **Exchangeof Restricted Definitive Notes or Beneficial Interests in a Restricted GlobalNote for Unrestricted Definitive Notes or Beneficial Interests in anUnrestricted Global Note**

 

(a)  o     **Check if Exchange is from beneficialinterest in a Restricted Global Note to beneficial interest in an UnrestrictedGlobal Note**.  In connectionwith the Exchange of the Owner’s beneficial interest in a Restricted GlobalNote for a beneficial interest in an Unrestricted Global Note in an equalprincipal amount, the Owner hereby certifies (i) the beneficial interest isbeing acquired for the Owner’s own account without transfer, (ii) such Exchangehas been effected in compliance with the transfer restrictions applicable tothe Global Notes and pursuant to and in accordance with the Securities Act of1933, as amended (the “*Securities Act*”), (iii) the restrictionson transfer contained in the Indenture and the Private Placement Legend are notrequired in order to maintain compliance with the Securities Act and (iv) thebeneficial interest in an Unrestricted Global Note is being acquired incompliance with any applicable blue sky securities laws of any state of theUnited States.

 

(b)  o     **Check if Exchange is from beneficialinterest in a Restricted Global Note to Unrestricted Definitive Note**.  In connection with the Exchange of theOwner’s beneficial interest in a Restricted Global Note for an UnrestrictedDefinitive Note, the Owner hereby certifies (i) the Definitive Note is beingacquired for the Owner’s own account without transfer, (ii) such Exchange hasbeen effected in compliance with the transfer restrictions applicable to theRestricted Global Notes and pursuant to and in accordance with the SecuritiesAct, (iii) the restrictions on transfer contained in the Indenture and thePrivate Placement Legend are not required in order to maintain compliance withthe Securities Act and (iv) the Definitive Note is being acquired in compliancewith any applicable blue sky securities laws of any state of the United States.

 

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(c)  o     **Check if Exchange is from RestrictedDefinitive Note to beneficial interest in an Unrestricted Global Note**.  In connection with the Owner’s Exchange of aRestricted Definitive Note for a beneficial interest in an Unrestricted GlobalNote, the Owner hereby certifies (i) the beneficial interest is being acquiredfor the Owner’s own account without transfer, (ii) such Exchange has beeneffected in compliance with the transfer restrictions applicable to RestrictedDefinitive Notes and pursuant to and in accordance with the Securities Act,(iii) the restrictions on transfer contained in the Indenture and the PrivatePlacement Legend are not required in order to maintain compliance with theSecurities Act and (iv) the beneficial interest is being acquired in compliancewith any applicable blue sky securities laws of any state of the United States.

 

(d)  o     **Check if Exchange is from RestrictedDefinitive Note to Unrestricted Definitive Note**.  In connection with the Owner’s Exchange of aRestricted Definitive Note for an Unrestricted Definitive Note, the Ownerhereby certifies (i) the Unrestricted Definitive Note is being acquired for theOwner’s own account without transfer, (ii) such Exchange has been effected incompliance with the transfer restrictions applicable to Restricted DefinitiveNotes and pursuant to and in accordance with the Securities Act, (iii) therestrictions on transfer contained in the Indenture and the Private PlacementLegend are not required in order to maintain compliance with the Securities Actand (iv) the Unrestricted Definitive Note is being acquired in compliance withany applicable blue sky securities laws of any state of the United States.

 

2.       **Exchangeof Restricted Definitive Notes or Beneficial Interests in Restricted GlobalNotes for Restricted Definitive Notes or Beneficial Interests in RestrictedGlobal Notes**

 

(a)  o     **Check if Exchange is from beneficialinterest in a Restricted Global Note to Restricted Definitive Note.**  In connection with the Exchange of the Owner’sbeneficial interest in a Restricted Global Note for a Restricted DefinitiveNote with an equal principal amount, the Owner hereby certifies that theRestricted Definitive Note is being acquired for the Owner’s own accountwithout transfer.  Upon consummation ofthe proposed Exchange in accordance with the terms of the Indenture, theRestricted Definitive Note issued will continue to be subject to therestrictions on transfer enumerated in the Private Placement Legend printed onthe Restricted Definitive Note and in the Indenture and the Securities Act.

 

(b)  o     **Check if Exchange is from RestrictedDefinitive Note to beneficial interest in a Restricted Global Note**.  In connection with the Exchange of theOwner’s Restricted Definitive Note for a beneficial interest in the [CHECKONE]  o144A Global Note, o Regulation SGlobal Note,  oIAI Global Note with an equal principal amount, the Owner hereby certifies (i)the beneficial interest is being acquired for the Owner’s own account withouttransfer and (ii) such Exchange has been effected in compliance with thetransfer restrictions applicable to the Restricted Global Notes and pursuant toand in accordance with the Securities Act, and in compliance with anyapplicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchangein accordance with the terms of the Indenture, the beneficial interest issuedwill be subject to the restrictions on transfer enumerated in the PrivatePlacement Legend printed on the relevant Restricted Global Note and in theIndenture and the Securities Act.

 

This certificate and the statements contained hereinare made for your benefit and the benefit of the Company.

 
|   |                         |
|--------|------------------------------|
|   | [Insert Name of  Transferor] |

 

C-2

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|   | By:    |   |
|--------|--------|--------|
|   |   | Name:  |
|   |   | Title: |
|   |   |   |
| Dated: |   |   |   |
|        |        |        |  |  |

 

C-3

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EXHIBITD

 

FORM OF CERTIFICATE FROMACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

 

UbiquiTel Operating Company

One West Elm Street

Conshohocken, Pennsylvania 19428

 

The Bank of New York

101 Barclay Street-8 West

New York, New York 10286

 

Re:  97/8%Senior Notes due 2011

 

Reference is hereby made to the Indenture, dated as ofFebruary 23, 2004 (the “*Indenture*”), among UbiquiTel OperatingCompany, as issuer (the “*Company*”), UbiquiTel Inc., as guarantor,and The Bank of New York, as trustee. Capitalized terms used but not defined herein shall have the meaningsgiven to them in the Indenture.

 

In connection with our proposed purchase of$                           aggregate principal amount of:

 

(a)  o            a beneficial interestin a Global Note, or

 

(b)  o           a Definitive Note,

 

we confirm that:

 

1.             Weunderstand that any subsequent transfer of the Notes or any interest therein issubject to certain restrictions and conditions set forth in the Indenture andthe undersigned agrees to be bound by, and not to resell, pledge or otherwisetransfer the Notes or any interest therein except in compliance with, suchrestrictions and conditions and the Securities Act of 1933, as amended (the “*SecuritiesAct*”).

 

2.             Weunderstand that the offer and sale of the Notes have not been registered underthe Securities Act, and that the Notes and any interest therein may not beoffered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf ofany accounts for which we are acting as hereinafter stated, that if we shouldsell the Notes or any interest therein, we will do so only (A) to the Companyor any subsidiary thereof, (B) in accordance with Rule 144A under theSecurities Act to a “qualified institutional buyer” (as defined therein), (C)to an institutional “accredited investor” (as defined below) that, prior tosuch transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer)to you and to the Company a signed letter substantially in the form of thisletter and, if such transfer is in respect of a principal amount of Notes, atthe time of transfer of less than $250,000, an Opinion of Counsel in formreasonably acceptable to the Company to the effect that such transfer is incompliance with the Securities Act, (D) outside the United States in accordancewith Rule 904 of Regulation S under the Securities Act, (E) pursuant to theprovisions of Rule 144(k) under the Securities Act or (F) pursuant to aneffective registration statement under the Securities Act, and we further agreeto provide to any Person purchasing the Definitive Note or beneficial interestin a Global Note from us in a transaction meeting the requirements of clauses(A) through (E) of this paragraph a notice advising such purchaser that resalesthereof are restricted as stated herein.

 

D-1

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3.             Weunderstand that, on any proposed resale of the Notes or beneficial interesttherein, we will be required to furnish to you and the Company suchcertifications, legal opinions and other information as you and the Company mayreasonably require to confirm that the proposed sale complies with theforegoing restrictions.  We furtherunderstand that the Notes purchased by us will bear a legend to the foregoingeffect.

 

4.             Weare an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),(3) or (7) of Regulation D under the Securities Act) and have such knowledgeand experience in financial and business matters as to be capable of evaluatingthe merits and risks of our investment in the Notes, and we and any accountsfor which we are acting are each able to bear the economic risk of our or itsinvestment.

 

5.             Weare acquiring the Notes or beneficial interest therein purchased by us for ourown account or for one or more accounts (each of which is an institutional“accredited investor”) as to each of which we exercise sole investmentdiscretion.

 

You and the Company are entitled to rely upon thisletter and are irrevocably authorized to produce this letter or a copy hereofto any interested party in any administrative or legal proceedings or officialinquiry with respect to the matters covered hereby.

 
|   |                                  |
|--------|---------------------------------------|
|   | [Insert Name of  Accredited Investor] |
|   |                                  |
|   |                                  |
|   | By:                                   |   |
|   |                                  | Name: |
|   |                                  | Title: |
|   |                                  |   |
| Dated: |                                  |   |   |
|        |                                       |  |  |  |

 

D-2

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EXHIBITE

 

FORM OF NOTATION OFGUARANTEE

 

For value received, each Guarantor (which termincludes any successor Person under the Indenture) has, jointly and severally,unconditionally guaranteed, to the extent set forth in the Indenture andsubject to the provisions in the Indenture dated as of February 23, 2004 (the “*Indenture*”)among UbiquiTel Operating Company (the *“Company”*), UbiquiTel Inc., as guarantor,and The Bank of New  York, as trustee(the “*Trustee*”),(a) the due and punctual payment of the principal of, premium and LiquidatedDamages, if any, and interest on, the Notes, whether at maturity, byacceleration, redemption or otherwise, the due and punctual payment of intereston overdue principal of and interest on the Notes, if any, if lawful, and thedue and punctual performance of all other obligations of the Company to theHolders or the Trustee all in accordance with the terms of the Indenture and(b) in case of any extension of time of payment or renewal of any Notes or anyof such other obligations, that the same will be promptly paid in full when dueor performed in accordance with the terms of the extension or renewal, whetherat stated maturity, by acceleration or otherwise.  The obligations of the Guarantors to the Holders of Notes and tothe Trustee pursuant to the Guarantee and the Indenture are expressly set forthin Article 10 of the Indenture and reference is hereby made to the Indenturefor the precise terms of the Guarantee.

 

Capitalized termsused but not defined herein have the meanings given to them in the Indenture.

 
|   | [NAME OF GUARANTOR(S)] |
|--------|------------------------|
|   |                   |
|   | By:                    |   |
|   |                   | Name: |
|   |                   | Title: |

 

E-1

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EXHIBITF

 

FORM OF SUPPLEMENTALINDENTURETO BE DELIVERED BY SUBSEQUENT GUARANTORS

 

SUPPLEMENTAL INDENTURE (this “SupplementalIndenture”), dated as of                                ,200    , among                                             (the “Guaranteeing Subsidiary”), a subsidiary of UbiquiTel Operating Company(or its permitted successor), a Delaware corporation (the “Company”), theCompany, the other Guarantors (as defined in the Indenture referred to herein)and                                              ,as trustee under the Indenture referred to below (the “Trustee”).

 

W I T N E S S E T H

 

WHEREAS, the Company has heretofore executed anddelivered to the Trustee an indenture (the “*Indenture*”), dated as of February 23, 2004providing for the issuance of 97/8%Senior Notes due 2011 (the “*Notes*”);

 

WHEREAS, the Indenture provides that under certaincircumstances the Guaranteeing Subsidiary shall execute and deliver to theTrustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaryshall unconditionally guarantee all of the Company’s Obligations under theNotes and the Indenture on the terms and conditions set forth herein (the “*Guarantee*”);and

 

WHEREAS, pursuant to Section 9.01 of the Indenture,the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW, THEREFORE, in consideration of the foregoing andfor other good and valuable consideration, the receipt of which is herebyacknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant andagree for the equal and ratable benefit of the Holders of the Notes as follows:

 

1.             CAPITALIZEDTERMS.  Capitalized terms used hereinwithout definition shall have the meanings assigned to them in the Indenture.

 

2.             AGREEMENTTO GUARANTEE.  The GuaranteeingSubsidiary hereby agrees to provide an unconditional guarantee on the terms andsubject to the conditions set forth in the Guarantee and in the Indentureincluding but not limited to Article 10 thereof.

 

4.             NORECOURSE AGAINST OTHERS.  No director,officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary,as such, shall have any liability for any obligations of the Company or anyGuaranteeing Subsidiary under the Notes, any Guarantees, the Indenture or thisSupplemental Indenture or for any claim based on, in respect of, or by reasonof, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases allsuch liability.  The waiver and releaseare part of the consideration for issuance of the Notes.  Such waiver may not be effective to waiveliabilities under the federal securities laws.

 

5.             NEWYORK LAW TO GOVERN.  THE INTERNAL LAW OFTHE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTALINDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TOTHE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BEREQUIRED THEREBY.

 

F-1

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6.             COUNTERPARTS.  The parties may sign any number of copies ofthis Supplemental Indenture.  Eachsigned copy shall be an original, but all of them together represent the sameagreement.

 

7.             EFFECTOF HEADINGS.  The Section headingsherein are for convenience only and shall not affect the construction hereof.

 

8.             THETRUSTEE.  The Trustee shall not beresponsible in any manner whatsoever for or in respect of the validity orsufficiency of this Supplemental Indenture or for or in respect of the recitalscontained herein, all of which recitals are made solely by the GuaranteeingSubsidiary and the Company.

 

F-2

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IN WITNESS WHEREOF, the parties hereto have causedthis Supplemental Indenture to be duly executed and attested, all as of thedate first above written.

 
| Dated:                              ,  20     |                              |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------|
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | [GUARANTEEING  SUBSIDIARY]        |
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | By:                               |   |   |
|                                                                                                                                                                                                          |                              | Name: |   |
|                                                                                                                                                                                                          |                              | Title: |   |
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | UBIQUITEL OPERATING  COMPANY      |
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | By:                               |   |   |
|                                                                                                                                                                                                          |                              | Name: |   |
|                                                                                                                                                                                                          |                              | Title: |   |
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | UBIQUITEL INC.                    |
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | By:                               |   |   |
|                                                                                                                                                                                                          |                              | Name: |   |
|                                                                                                                                                                                                          |                              | Title: |   |
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | THE BANK OF NEW YORK,  as Trustee |
|                                                                                                                                                                                                          |                              |
|                                                                                                                                                                                                          | By:                               |   |   |
|                                                                                                                                                                                                          |                              | Authorized Signatory |   |
|                                                                                                                                                                                                               |                                   |  |  |  |

 

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