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Exhibit 4.3    
    


EXECUTION COPY  



	 	 	


NEXTEL PARTNERS, INC.



THE BANK OF NEW YORK,

as Trustee



 INDENTURE



Dated as of

May 13, 2003




11/2% Convertible Senior Notes Due 2008


	 	 
	 	 	 	 	 












  



 
 

TABLE OF CONTENTS    
    



	 
	 	Page

	ARTICLE 1



DEFINITIONS
	Section 1.01. Definitions	 	1
	

ARTICLE 2



ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
	Section 2.01. Designation Amount and Issue of Notes	 	7
	Section 2.02. Form of Notes	 	7
	Section 2.03. Date and Denomination of Notes; Payments of Interest	 	8
	Section 2.04. Execution of Notes	 	9
	Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer	 	9
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes	 	14
	Section 2.07. Temporary Notes	 	15
	Section 2.08. Cancellation of Notes	 	15
	Section 2.09. CUSIP Numbers	 	15
	

ARTICLE 3



REDEMPTION OF NOTES
	Section 3.01. Redemption of Notes	 	16
	Section 3.02. [Intentionally left blank]	 	16
	Section 3.03. [Intentionally left blank]	 	16
	Section 3.04. [Intentionally left blank]	 	16
	Section 3.05. Redemption at Option of Holders upon a Fundamental Change	 	16
	Section 3.06. Repurchase of Notes by the Company at Option of the Holder	 	18
	

ARTICLE 4



PARTICULAR COVENANTS OF THE COMPANY
	Section 4.01. Payment of Principal, Premium and Interest	 	18
	Section 4.02. Maintenance of Office or Agency	 	18
	Section 4.03. Appointments to Fill Vacancies in Trustee's Office	 	18
	Section 4.04. Provisions as to Paying Agent	 	18
	Section 4.05. Existence	 	19
	Section 4.06. Maintenance of Properties	 	19
	Section 4.07. Payment of Taxes and Other Claims	 	20
	Section 4.08. Rule 144A Information Requirement	 	20
	Section 4.09. Stay, Extension and Usury Laws	 	20
	Section 4.10. Compliance Certificate	 	20
	Section 4.11. Liquidated Damages Notice	 	21
	

ARTICLE 5



NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	Section 5.01. Noteholders' Lists	 	21
	Section 5.02. Preservation and Disclosure of Lists	 	21
	Section 5.03. Reports by Trustee	 	21
	Section 5.04. Reports by Company	 	22
	 	 	 





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ARTICLE 6



REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
	Section 6.01. Events of Default	 	22
	Section 6.02. Payments of Notes on Default; Suit Therefor	 	23
	Section 6.03. Application of Monies Collected by Trustee	 	25
	Section 6.04. Proceedings by Noteholder	 	25
	Section 6.05. Proceedings by Trustee	 	26
	Section 6.06. Remedies Cumulative and Continuing	 	26
	Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders	 	26
	Section 6.08. Notice of Defaults	 	27
	Section 6.09. Undertaking to Pay Costs	 	27
	

ARTICLE 7



THE TRUSTEE
	Section 7.01. Duties and Responsibilities of Trustee	 	27
	Section 7.02. Reliance on Documents, Opinions, Etc.	 	28
	Section 7.03. No Responsibility for Recitals, Etc.	 	29
	Section 7.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes	 	29
	Section 7.05. Monies to Be Held in Trust	 	29
	Section 7.06. Compensation and Expenses of Trustee	 	29
	Section 7.07. Officers' Certificate as Evidence	 	30
	Section 7.08. Conflicting Interests of Trustee	 	30
	Section 7.09. Eligibility of Trustee	 	30
	Section 7.10. Resignation or Removal of Trustee	 	30
	Section 7.11. Acceptance by Successor Trustee	 	31
	Section 7.12. Succession by Merger	 	32
	Section 7.13. Preferential Collection of Claims	 	32
	

ARTICLE 8



THE NOTEHOLDERS
	Section 8.01. Action by Noteholders	 	33
	Section 8.02. Proof of Execution by Noteholders	 	33
	Section 8.03. Who Are Deemed Absolute Owners	 	33
	Section 8.04. Company-owned Notes Disregarded	 	33
	Section 8.05. Revocation of Consents, Future Holders Bound	 	34
	

ARTICLE 9



MEETINGS OF NOTEHOLDERS
	Section 9.01. Purpose of Meetings	 	34
	Section 9.02. Call of Meetings by Trustee	 	34
	Section 9.03. Call of Meetings by Company or Noteholders	 	34
	Section 9.04. Qualifications for Voting	 	35
	Section 9.05. Regulations	 	35
	Section 9.06. Voting	 	35
	Section 9.07. No Delay of Rights by Meeting	 	36
	 	 	 



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ARTICLE 10



SUPPLEMENTAL INDENTURES
	Section 10.01. Supplemental Indentures Without Consent of Noteholders	 	36
	Section 10.02. Supplemental Indenture with Consent of Noteholders	 	37
	Section 10.03. Effect of Supplemental Indenture	 	38
	Section 10.04. Notation on Notes	 	38
	Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee	 	38
	

ARTICLE 11



CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
	Section 11.01. Company May Consolidate on Certain Terms	 	38
	Section 11.02. Successor to Be Substituted	 	39
	Section 11.03. Opinion of Counsel to Be Given Trustee	 	39
	

ARTICLE 12



SATISFACTION AND DISCHARGE OF INDENTURE
	Section 12.01. Discharge of Indenture	 	39
	Section 12.02. Deposited Monies to Be Held in Trust by Trustee	 	40
	Section 12.03. Paying Agent to Repay Monies Held	 	40
	Section 12.04. Return of Unclaimed Monies	 	40
	Section 12.05. Reinstatement	 	40
	

ARTICLE 13



IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	Section 13.01. Indenture and Notes Solely Corporate Obligations	 	41
	

ARTICLE 14



CONVERSION OF NOTES
	Section 14.01. Right to Convert	 	41
	Section 14.02. Exercise of Conversion Privilege; Issuance of Common Stock on Conversion; No Adjustment for Interest or Dividends	 	41
	Section 14.03. Cash Payments in Lieu of Fractional Shares	 	43
	Section 14.04. Conversion Rate	 	43
	Section 14.05. Adjustment of Conversion Rate	 	43
	Section 14.06. Effect of Reclassification, Consolidation, Merger or Sale	 	50
	Section 14.07. Taxes on Shares Issued	 	51
	Section 14.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock	 	51
	Section 14.09. Responsibility of Trustee	 	52
	Section 14.10. Notice to Holders Prior to Certain Actions	 	52
	Section 14.11. Stockholder Rights Plans	 	53
	 	 	 





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ARTICLE 15



MISCELLANEOUS PROVISIONS
	Section 15.01. Provisions Binding on Company's Successors	 	53
	Section 15.02. Official Acts by Successor Corporation	 	53
	Section 15.03. Addresses for Notices, Etc.	 	54
	Section 15.04. Governing Law	 	54
	Section 15.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee	 	54
	Section 15.06. Legal Holidays	 	54
	Section 15.07. Trust Indenture Act	 	54
	Section 15.08. No Security Interest Created	 	55
	Section 15.09. Benefits of Indenture	 	55
	Section 15.10. Table of Contents, Headings, Etc.	 	55
	Section 15.11. Authenticating Agent	 	55
	Section 15.12. Execution in Counterparts	 	56
	Section 15.13. Severability	 	56
	Annex 1 Projected Payment Schedule	 	 
	Exhibit A Form of Note	 	 




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INDENTURE  


        INDENTURE dated as of May 13, 2003 between Nextel Partners, Inc., a Delaware corporation (hereinafter called the
"Company"), having its principal office at 4500 Carillon Point, Kirkland, Washington 98033, and The Bank of New York, a New York banking corporation, as
trustee hereunder (hereinafter called the "Trustee"). 


WITNESSETH:  


        WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its 11/2% Convertible Senior Notes Due 2008 (hereinafter
called the "Notes"), in an aggregate principal amount not to exceed $150,000,000 (or in the event that the Initial Purchasers, as defined herein,
exercise their option under the Purchase Agreement dated May 7, 2003 (the "Note Purchase Agreement") among them and the Company to purchase
additional Notes, in an aggregate principal amount not to exceed $175,000,000) and to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company
has duly authorized the execution and delivery of this Indenture; and 


        WHEREAS,
the Notes, the certificate of authentication to be borne by the Notes, a form of assignment, a form of option to elect redemption upon a fundamental change and a form of
conversion notice to be borne by the Notes are to be substantially in the forms hereinafter provided for; and 



        WHEREAS,
all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in
this Indenture provided, the valid, binding and legal obligations of the Company, and to constitute this Indenture a valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized, 


        NOW,
THEREFORE, THIS INDENTURE WITNESSETH: 


        That
in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows: 


 
 

ARTICLE 1
  
  DEFINITIONS    



        Section 1.01.    Definitions.    The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this
Section 1.01. All other terms used in this Indenture that are defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force at the date of the
execution of this Indenture. The words "herein", "hereof",
"hereunder" and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other Subdivision. The terms
defined in this Article include the plural as well as the singular. 


        "Accepted Purchased Shares" has the meaning specified in Section 14.05(g). 


        "Adjustment Event" has the meaning specified in Section 14.05(m). 


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        "Administrative Agent" means the Administrative Agent under the Credit Facility. 


        "Agent Members" has the meaning specified in Section 2.05(b). 


        "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes
of this definition, "control", when used with respect to any specified Person, means the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. 


        "Board of Directors" means the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder. 


        "Business Day" means any day except a Saturday, Sunday or legal holiday on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close. 



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


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


        "Certificate of Incorporation" means the Company's Restated Certificate of Incorporation filed with the Secretary of the State of Delaware
on February 24, 2000. 


        "Closing Sale Price" of the shares of Common Stock on any date means the closing sale price per share (or, if no closing sale price is
reported, the average of the closing bid and ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) on such date as reported in
composite transactions for the principal United States securities exchange on which shares of Common Stock are traded or, if the shares of Common Stock are not listed on a United States national or
regional securities exchange, as reported by the Nasdaq National Market or by the National Quotation Bureau Incorporated. In the absence of such quotations, the Company shall be entitled to determine
the Closing Sale Price on the basis it considers appropriate. The Closing Sale Price shall be determined without reference to extended or after hours trading. 


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


        "Common Stock" means any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. Subject to the provisions of Section 14.06,
however, shares issuable on conversion of Notes shall include only shares of the class designated as common stock of the Company at the date of this Indenture (namely, the Class A Common Stock,
par value $0.001) or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which are not subject to redemption (other than as provided in the Shareholders' Agreement and the
Certificate of Incorporation) by the Company; provided that if at any time there shall be more than one such resulting class, the shares of each such
class then so issuable on conversion shall be substantially in the proportion which the total number of shares of such class resulting from all 


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such
reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. 


        "Company" means the corporation named as the "Company" in the first paragraph of this
Indenture, and, subject to the provisions of Article 11 and Section 14.06, shall include its successors and assigns. 



        "Conversion Price" as of any day will equal $1,000 divided by the Conversion Rate as of such date. 


        "Conversion Rate" has the meaning specified in Section 14.04. 


        "Corporate Trust Office", or other similar term, means the designated office of the Trustee at which at any particular time its corporate
trust business as it relates to this Indenture shall be administered, which office is, at the date as of which this Indenture is dated, located at 101 Barclay Street, New York, New York 10286. 



        "Credit Facility" means (a) the Amended and Restated Credit Agreement dated as of September 9, 1999, among Nextel Partners
Operating Corp., a Delaware corporation, the Lenders defined therein, Bank of Montreal, as administrative agent for the Lenders thereunder, The Bank of New York, as documentation agent, DLJ Capital
Funding, Inc., as syndication agent, and Donaldson, Lufkin & Jenrette Securities Corporation, as lead arranger and sole book running manager, as amended by a first amendment dated as of
March 10, 2000, a second amendment dated as of January 25, 2001, a third amendment dated as of January 21, 2002, and a fourth amendment dated as of April 17, 2003, as such
agreement is further amended, supplemented, extended, restated, renewed or otherwise modified from time to time, and any refinancing, replacement or substitution thereof or therefor, or of or for any
previous refinancing, replacement or substitution and (b) the other Loan Documents (as defined in the Credit Facility) and any other document or instrument entered into in connection therewith. 


        "Current Market Price" has the meaning specified in Section 14.05(i). 


        "Custodian" means The Bank of New York, as custodian with respect to the Notes in global form, or any successor entity thereto. 



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


        "Defaulted Interest" has the meaning specified in Section 2.03. 


        "Depositary" means the clearing agency registered under the Exchange Act that is designated to act as the Depositary for the Global Notes.
The Depository Trust Company shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include such successor. 


        "Determination Date" has the meaning specified in Section 14.05(m). 


        "Event of Default" means any event specified in Section 6.01 as an Event of Default. 



        "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect
from time to time. 


        "Expiration Time" has the meaning specified in Section 14.05(f). 


        "Fair Market Value" has the meaning specified in Section 14.05(i). 


        "Fundamental Change" means the occurrence of any transaction or event (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or otherwise) in connection with which all or substantially all of the Common Stock 


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shall
be exchanged for, converted into, acquired for or constitutes solely the right to receive, consideration which is not all or substantially all common stock that is listed on, or immediately
after the transaction or event will be listed on, a United States national securities exchange, or is approved, or immediately after the transaction or event will be approved, for quotation on the
NASDAQ National Market or any similar United States system of automated dissemination of quotations of securities prices. 


        "Fundamental Change Notice" has the meaning specified in Section 3.05(b). 


        "Fundamental Change Expiration Time" has the meaning specified in Section 3.05(b). 



        "Fundamental Change Redemption Date" has the meaning specified in Section 3.05(a). 


        "Global Note" has the meaning specified in Section 2.02. 


        "Indenture" means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented. 


        "Initial Purchasers" means Morgan Stanley & Co. Incorporated, Credit Suisse First Boston LLC and Wachovia Securities. 



        "interest" means, when used with reference to the Notes, any interest payable under the terms of the Notes, and Liquidated Damages, if
any, payable under the terms of the Registration Rights Agreement. 


        "Lien" means any pledge, mortgage, lien, security interest, hypothecation, assignment for security interest or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in the nature thereof, any agreement to give a security interest or any Capitalized Lease). 



        "Liquidated Damages" has the meaning specified for "Liquidated Damages Amount" in
Section 2(e) of the Registration Rights Agreement. 


        "Liquidated Damages Notice" has the meaning specified in Section 4.11. 


        "non-electing share" has the meaning specified in Section 14.06. 



        "Note" or "Notes" means any Note or Notes, as the case may be, authenticated and delivered
under this Indenture, including any Global Note. 


        "Note Purchase Agreement" has the meaning ascribed to such term in the preamble to this Indenture. 


        "Note register" has the meaning specified in Section 2.05. 


        "Note registrar" has the meaning specified in Section 2.05. 



        "Noteholder" or "holder" as applied to any Note, or other similar terms (but excluding the
term "beneficial holder"), means any Person in whose name at the time a particular Note is registered on the Note registrar's books. 


        "Offer Expiration Time" has the meaning specified in Section 14.05(g). 


        "Officers' Certificate", when used with respect to the Company, means a certificate signed by the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title "Vice
President"), the Treasurer or any Assistant Treasurer, or the Secretary of the Company. 


        "Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other
counsel reasonably acceptable to the Trustee. 


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        "outstanding", when used with reference to Notes and subject to the provisions of Section 8.04, means, as of any particular time,
all Notes authenticated and delivered by the Trustee under this Indenture, except: 



        (a)   Notes
theretofore canceled by the Trustee or delivered to the Trustee for cancellation; 


        (b)   Notes,
or portions thereof, (i) for the redemption of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any paying
agent (other than the Company) or (ii) which shall have been otherwise defeased in accordance with Article 12; 


        (c)   Notes
in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06; and 


        (d)   Notes
converted into Common Stock pursuant to Article 14 and Notes deemed not outstanding pursuant to Article 3. 




        "Person" means a corporation, an association, a partnership, a limited liability company, an individual, a joint venture, a joint stock
company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof. 


        "Portal Market" means The Portal Market operated by the National Association of Securities Dealers, Inc. or any successor thereto. 


        "Predecessor Note" of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the lost, destroyed or stolen Note that it replaces. 


        "premium" means any premium payable under the terms of the Notes. 


        "Purchased Shares" has the meaning specified in Section 14.05(f). 


        "QIB" means a "qualified institutional buyer" as defined in Rule 144A. 



        "record date", with respect to any interest payment date, has the meaning specified in Section 2.03. 


        "Record Date" has the meaning specified in Section 14.05(i). 


        "Registration Rights Agreement" means the Registration Rights Agreement, dated as of May 13, 2003, between the Company and the
Initial Purchasers, as amended from time to time in accordance with its terms. 



        "Responsible Officer" means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those
performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of, and familiarity with, the
particular subject and who shall have direct responsibility for the administration of this Indenture. 


        "Restricted Securities" has the meaning specified in Section 2.05(c). 


        "Rule 144A" means Rule 144A as promulgated under the Securities Act. 


        "Securities" has the meaning specified in Section 14.05(d). 


        "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from
time to time. 


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        "Shareholders' Agreement" means the Amended and Restated Shareholders' Agreement dated as of February 18, 2000 by and among the
Company and the stockholders named therein, as amended. 


        "Significant Subsidiary" means, as of any date of determination, a Subsidiary of the Company that would constitute a
"significant subsidiary" as such term is defined under Rule 1-02(w) of Regulation S-X of the Commission as in
effect on the date of this Indenture. 


        "Subsidiary" means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% of
the total voting power of shares of capital stock or other equity interest entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of that Person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or managing general partner of which is such Person or a subsidiary of such Person or (b) the only general partners of which are such Person or one or more
subsidiaries of such Person (or any combination thereof). 


        "Trading Day" has the meaning specified in Section 14.05(i). 


        "Trading Price" means, on any date, the average of the secondary market bid quotations for the Notes obtained by the Trustee for
$10,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such date from three independent nationally recognized securities dealers in The City of New York (none
of which shall be an Affiliate of the Company) selected by the Company; provided that if at least three such bids cannot reasonably be obtained by the
Trustee, but two bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, one bid shall be used; and  provided further that
if the Trustee cannot reasonably obtain at least one bid for $10,000,000 principal amount of Notes from a nationally recognized
securities dealer or, in the Company's reasonable judgment, the bid quotations are not indicative of the secondary market value of the Notes, then the Trading Price per $1,000 principal amount of
Notes shall be deemed to the product of (a) the Conversion Rate in effect as of such determination date and (b) the average Closing Sale Price of the Common Stock for the five Trading
Days ending on such determination date, appropriately adjusted to take into account the occurrence, during the period commencing on the first of such Trading Days during such five Trading Day period
and ending on such determination date, of any event described in Sections 14.05 and 14.06. 


        "Trigger Event" has the meaning specified in Section 14.05(d). 


        "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as it was in force at the date of this Indenture, except as
provided in Sections 10.03 and 15.07; provided that if the Trust Indenture Act of 1939 is amended after the date hereof, the term
"Trust Indenture Act" shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939 as so amended. 


        "Trustee" means The Bank of New York, and its successors and any corporation resulting from or surviving any consolidation or merger to
which it or its successors may be a party and any successor trustee at the time serving as successor trustee hereunder. 


 
 

ARTICLE 2    
    
    ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES    



        Section 2.01.    Designation Amount and Issue of Notes.    The Notes shall be designated as
"11/2% Convertible Senior Notes Due 2008". Notes not to exceed the aggregate principal amount of $150,000,000, or in the event that the
Initial Purchasers exercise their option under the Note Purchase Agreement to purchase additional Notes, in an aggregate principal amount not to exceed $175,000,000 (except pursuant to Sections 2.05,
2.06, 3.05 and 14.02 hereof) upon the execution of this Indenture, or from time to time thereafter, may be executed by the Company and delivered to the Trustee for 


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authentication,
and the Trustee shall thereupon authenticate and deliver said Notes to or upon the written order of the Company, signed by its Chairman of the Board, Chief Executive Officer, President
or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title "Vice President"), the
Treasurer or any Assistant Treasurer or the Secretary, without any further action by the Company hereunder. 



        Section 2.02.    Form of Notes.    The Notes and the Trustee's certificate of authentication to be borne by
such Notes shall be substantially in the form set forth in Exhibit A. The terms and provisions contained in the form of Note attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby. 


        Any
of the Notes may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required by the Custodian, the Depositary or by the National Association of Securities Dealers, Inc. in order for the Notes to be tradable on The Portal Market or as may
be required for the Notes to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed, or to conform to usage, or to indicate any
special limitations or restrictions to which any particular Notes are subject. 


        So
long as the Notes are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.05(a), all
of the Notes will be represented by one or more Notes in global form registered in the name of the Depositary or the nominee of the Depositary (a "Global
Note"). The transfer and exchange of beneficial interests in any such Global Note shall be effected through the Depositary in accordance with this Indenture and the applicable
procedures of the Depositary. Except as provided in Section 2.05(a), beneficial owners of a Global Note shall not be entitled to have certificates registered in their names, will not receive or
be entitled to receive physical delivery of certificates in definitive form and will not be considered holders of such Global Note. 


        Any
Global Note shall represent such of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Notes from time
to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect redemptions, conversions, transfers or
exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or
the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the holder of such Notes in accordance with this Indenture. Payment of principal of and interest and
premium, if any, on any Global Note shall be made to the holder of such Note. 


        Section 2.03.    Date and Denomination of Notes; Payments of Interest.    The Notes shall be issuable in
registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear interest from the
date specified on the face of the form of Note attached as Exhibit A hereto. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months. 


        The
Person in whose name any Note (or its Predecessor Note) is registered on the Note register at the close of business on any record date with respect to any interest payment date shall
be entitled to receive the interest payable on such interest payment date, except that the interest payable upon redemption will be payable to the Person to whom principal is payable pursuant to such
redemption 


7





 



(unless
the redemption date is an interest payment date, in which case the semi-annual payment of interest becoming due on such date shall be payable to the holders of such Notes
registered as such on the applicable record date). Notwithstanding the foregoing, if any Note (or portion thereof) is converted into Common Stock during the period after a record date for the payment
of interest to, but excluding, the next succeeding interest payment date and such Note (or portion thereof) has been called or tendered for redemption on a redemption date which occurs during such
period, the Company shall not be required to pay interest on such interest payment date in respect of any such Note (or portion thereof). The Company shall pay interest (i) on any Notes in
certificated form by check mailed to the address of the Person entitled thereto as it appears in the Note register; provided that if any holder of Notes
with an aggregate principal amount in excess of $2.0 million shall request in writing, the Company shall pay interest on such holder's Notes by wire transfer of immediately available funds to
the account designated by such holder, or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee. The term
"record date" with respect to any interest payment date shall mean the May 1 or November 1 preceding the applicable May 15 or
November 15 interest payment date, respectively. 


        Any
interest on any Note which is payable, but is not punctually paid or duly provided for, on any May 15 or November 15 (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Noteholder on the relevant record date by virtue of his having been such Noteholder, and such Defaulted Interest shall be
paid by the Company, at its election in each case, as provided in clause (1) or (2) below: 




        (1)   The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the
close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date of the proposed payment (which shall be not less than twenty-five (25) days after the receipt by the Trustee of such
notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall be
not more than fifteen (15) days and not less than ten (10) days prior to the date of the proposed payment, and not less than ten (10) days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to be mailed, first-class postage prepaid, to each holder at his address as it appears in the Note register, not less than ten
(10) days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer
be payable pursuant to the following clause (2) of this Section 2.03. 


        (2)   The
Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after notice 




8





 





given
by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. 





        Section 2.04.    Execution of Notes.    The Notes shall be signed in the name and on behalf of the Company by
the manual or facsimile signature of its Chairman of the Board, Chief Executive Officer, President or any Vice President (whether or not designated by a number or numbers or word or words added before
or after the title "Vice President") and attested by the manual or facsimile signature of its Secretary or any of its Assistant Secretaries or its
Treasurer or any of its Assistant Treasurers (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). Only such Notes as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, manually executed by the Trustee (or an authenticating agent appointed by the Trustee as
provided by Section 15.11), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon
any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this
Indenture. 


        In
case any officer of the Company who shall have signed any of the Notes shall cease to be such officer before the Notes so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such officer of the
Company, and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer. 



        Section 2.05.    Exchange and Registration of Transfer of Notes; Restrictions on Transfer.    (a) The
Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company designated pursuant to
Section 4.02 being herein sometimes collectively referred to as the "Note register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. The Note register shall be in written form or in any form capable of being converted into written form
within a reasonably prompt period of time. The Trustee is hereby appointed "Note
registrar" for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-registrars in accordance with
Section 4.02. 


        Upon
surrender for registration of transfer of any Note to the Note registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this
Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture. 



        Notes
may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Noteholder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding. 


        All
Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Notes surrendered upon such registration of transfer or exchange. 



        All
Notes presented or surrendered for registration of transfer or for exchange, redemption or conversion shall (if so required by the Company or the Note registrar) be duly endorsed, or
be 


9





 



accompanied
by a written instrument or instruments of transfer in form satisfactory to the Company, and the Notes shall be duly executed by the Noteholder thereof or his attorney duly authorized in
writing. 


        No
service charge shall be made to any holder for any registration of, transfer or exchange of Notes, but the Company may require payment by the holder of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes. 


        Neither
the Company nor the Trustee nor any Note registrar shall be required to exchange or register a transfer of (a) any Notes for a period of fifteen (15) days next
preceding any selection of Notes to be redeemed, (b) any Notes or portions thereof surrendered for conversion pursuant to Article 14 or (c) any Notes or portions thereof tendered
for redemption (and not withdrawn) pursuant to Section 3.05. 



        (b)   The
following provisions shall apply only to Global Notes: 




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



	(ii)
	Notwithstanding
any other provision in this Indenture, no Global Note may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note in
whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless (A) the Depositary (i) has notified the Company that it is unwilling
or unable to continue as Depositary for such Global Note and a successor depositary has not been appointed by the Company within ninety days or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) an Event of Default has occurred and is continuing or (C) the Company, in its sole discretion, notifies the Trustee in writing that it no longer
wishes to have all the Notes represented by Global Notes. Any Global Note exchanged pursuant to clause (A) or (B) above shall be so exchanged in whole and not in part and any Global Note
exchanged pursuant to clause (C) above may be exchanged in whole or from time to time in part as directed by the Company. Any Note issued in exchange for a Global Note or any portion thereof
shall be a Global Note; provided that any such Note so issued that is registered in the name of a Person other than the Depositary or a nominee thereof
shall not be a Global Note.



	(iii)
	Securities
issued in exchange for a Global Note or any portion thereof pursuant to clause (ii) above shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear any legends required hereunder. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Note
registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as Custodian for the Depositary or its
nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and make available for delivery the Note issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof. 





10





 





	(iv)
	In
the event of the occurrence of any of the events specified in clause (ii) above, the Company will promptly make available to the Trustee a reasonable supply
of certificated Notes in definitive, fully registered form, without interest coupons.



	(v)
	Neither
any members of, or participants in, the Depositary ("Agent Members") nor any other Persons on whose behalf Agent
Members may act shall have any rights under this Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, and the Depositary or such nominee, as the
case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished
by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a holder of any Note.



	(vi)
	At
such time as all interests in a Global Note have been redeemed, converted, canceled or exchanged for Notes in certificated form, such Global Note shall, upon receipt
thereof, be canceled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the Custodian. At any time prior to such cancellation, if any interest
in a Global Note is redeemed, converted, canceled or exchanged for Notes in certificated form, the principal amount of such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately reduced, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction. 






        (c)   Every
Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any Common Stock issued
upon conversion of the Notes and required to bear the legend set forth in this Section 2.05(c), collectively, the "Restricted Securities") shall
be subject to the restrictions on transfer set forth in this Section 2.05(c) (including those set forth in the legend below) unless such restrictions on transfer shall be waived by written
consent of the Company, and the holder of each such Restricted Security, by such Note holder's acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in Sections 2.05(c)
and 2.05(d), the term "transfer" encompasses any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted Security or any interest
therein. 




        Until
the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), any certificate evidencing such
Note (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in this
Section 2.05(c), if applicable) shall bear a legend in substantially the following form, unless such Note has been sold pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time of such transfer), or unless otherwise agreed by the Company in writing, with written notice thereof to the Trustee: 


THE
NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS 


11





 



DEFINED
IN RULE 144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144(K) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT (A) TO NEXTEL PARTNERS, INC. OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D) ABOVE), IT WILL FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE (2)(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION). THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTION. 



        Any
Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms or as to conditions for
removal of the foregoing legend set forth therein have been satisfied may, upon surrender of such Note for exchange to the Note registrar in accordance with the provisions of this Section 2.05,
be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(c). If the Restricted Security
surrendered for exchange is represented by a Global Note bearing the legend set forth in this Section 2.05(c), the principal amount of the legended Global Note shall be reduced by the
appropriate principal amount and the principal amount of a Global Note without the legend set forth in this Section 2.05(c) shall be increased by an equal principal amount. If a Global Note
without the legend set forth in this Section 2.05(c) is not then outstanding, the Company shall execute and the Trustee shall authenticate and deliver an unlegended Global Note to the
Depositary. 



        (d)   (i) Until
the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), any
stock certificate representing Common Stock issued upon conversion of any Note shall bear a legend in substantially the following form, unless such Common Stock has been sold pursuant to a
registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer) or such Common Stock has been issued upon conversion
of Notes that have been transferred pursuant to a registration statement that has been declared effective under the Securities Act, or unless otherwise agreed by the Company in writing with written
notice thereof to the transfer agent: 




THE
CLASS A COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT 


12





 

BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT, UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CLASS A COMMON STOCK EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO NEXTEL
PARTNERS, INC. OR ANY SUBSIDIARY THEREOF, (B) TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) PURSUANT TO
THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE), IT WILL FURNISH TO MELLON INVESTOR
SERVICES LLC, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO EACH PERSON TO
WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE
EARLIER OF THE TRANSFER OF THE CLASS A COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE (1)(D) ABOVE OR UPON ANY TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY AFTER THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). 


        Any
such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms or as to which the conditions for removal of the foregoing legend set
forth therein have been satisfied may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged
for a new certificate or certificates for a like number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d). 





	(ii)
	Any
stock certificate representing Common Stock issued upon conversion of any Note shall, pursuant to the Certificate of Incorporation, bear a legend in substantially
the following form: 






THE
CLASS A COMMON STOCK EVIDENCED HEREBY IS SUBJECT TO PROVISIONS OF THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION THAT ALLOW AN ENTITY TO PURCHASE OR CAUSE THE COMPANY TO REDEEM ALL OF THE
OUTSTANDING CLASS A COMMON STOCK OR ALLOW A MAJORITY OF THE CLASS A COMMON STOCKHOLDERS TO CAUSE SUCH ENTITY TO PURCHASE OR CAUSE THE COMPANY TO REDEEM ALL OF THE OUTSTANDING CLASS A COMMON STOCK, IN
EACH SUCH INSTANCE AT A PURCHASE PRICE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION. COPIES OF THE RESTATED CERTIFICATE OF INCORPORATION ARE AVAILABLE AT
THE PRINCIPAL OFFICE OF THE CORPORATION AND WILL BE FURNISHED WITHOUT COST TO STOCKHOLDERS ON REQUEST. 



        (e)   Any
Note or Common Stock issued upon the conversion of a Note that, prior to the expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities 



13





 

Act
(or any successor provision), is purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the Securities Act in a transaction which results in such Notes or Common Stock, as the case may be, no longer being
"restricted securities" (as defined under Rule 144). 


        (f)    The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions or transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements hereof. 




        Section 2.06.    Mutilated, Destroyed, Lost or Stolen Notes.    In case any Note shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and make available
for
delivery, a new Note, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen. In every case, the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required
by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof. 



        Following
receipt by the Trustee or such authenticating agent, as the case may be, of satisfactory security or indemnity and evidence, as described in the preceding paragraph, the
Trustee or such authenticating agent may authenticate any such substituted Note and make available for delivery such Note. Upon the issuance of any substituted Note, the Company may require the
payment by the holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Note
which has matured or is about to mature or has been tendered for redemption upon a Fundamental Change (and not withdrawn) or is to be converted into Common Stock shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except
in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if applicable, any paying agent or conversion agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof. 


        Every
substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to the replacement or payment or conversion or redemption of mutilated, destroyed, lost or stolen Notes and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the 


14





 



replacement
or payment or conversion or redemption of negotiable instruments or other securities without their surrender. 


        Section 2.07.    Temporary Notes.    Pending the preparation of Notes in certificated form, the Company may
execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon the written request of the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the
Notes in certificated form, but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Notes in
certificated form. Without unreasonable delay, the Company will execute and deliver to the Trustee or such authenticating agent Notes in certificated form and thereupon any or all temporary Notes may
be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and make
available for delivery in exchange for such temporary Notes an equal aggregate principal amount of Notes in certificated form. Such exchange shall be made by the Company at its own expense and without
any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Notes in certificated
form authenticated and delivered hereunder. 


        Section 2.08.    Cancellation of Notes.    All Notes surrendered for the purpose of payment, redemption,
conversion, exchange or registration of transfer shall, if surrendered to the Company or any paying agent or any Note registrar or any conversion agent, be surrendered to the Trustee and promptly
canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of such canceled Notes in accordance with its customary procedures. If the Company shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation. 


        Section 2.09.    CUSIP Numbers.    The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Noteholders; provided that any such notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers. 


        Section 2.10.    Global Securities.    Neither the Trustee nor any Agent shall have any responsibility for any
actions taken or not taken by the Depositary. 


15








  



 
 

ARTICLE 3    
    
    REDEMPTION OF NOTES    



        Section 3.01.    Redemption of Notes.    Except as otherwise provided in Section 3.05, the Company may
not redeem any Notes prior to maturity. 


        Section 3.02.    [Intentionally left blank]    


        Section 3.03.    [Intentionally left blank]    


        Section 3.04.    [Intentionally left blank]    


        Section 3.05.    Redemption at Option of Holders upon a Fundamental Change.    (a) If there shall occur
a Fundamental Change at any time prior to maturity of the Notes, then each Noteholder shall have the right, at such holder's option, to require the Company to redeem all of such holder's Notes, or any
portion thereof that is an integral multiple of $1,000 principal amount, on the date (the "Fundamental Change Redemption Date") that is thirty
(30) days after the date of the Fundamental Change Notice (as defined in Section 3.05(b)) of such Fundamental Change (or, if such 30th day is not a Business Day, the next succeeding
Business Day) at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to, but excluding, the Fundamental Change Redemption Date;  provided that if such
Fundamental Change Redemption Date is an interest payment date, then the interest payable on such interest payment date shall be
paid to the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for redemption on such date. 


        Upon
presentation of any Note redeemed in part only, the Company shall execute and, upon the Company's written direction to the Trustee, the Trustee shall authenticate and make available
for
delivery to the holder thereof, at the expense of the Company, a new Note or Notes, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Notes presented. 



        (b)   On
or before the tenth day after the occurrence of a Fundamental Change, the Company or at its written request (which must be received by the Trustee at least five
(5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree in writing to a shorter period), the Trustee, in the name of and
at the expense of the Company, shall mail or cause to be mailed to all holders of record on the date of the Fundamental Change a notice (the "Fundamental Change
Notice") of the occurrence of such Fundamental Change and of the redemption right at the option of the holders arising as a result thereof. Such mailing shall be by first class
mail. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. If the Company shall give such
notice, the Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee at such time as it is mailed to Noteholders. Concurrently with the mailing of any Fundamental
Change Notice, the Company shall issue a press release announcing such Fundamental Change referred to in the Fundamental Change Notice, the form and content of which press release shall be determined
by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Fundamental Change Notice or any proceedings for the
redemption of any Note which any Noteholder may elect to have the Company redeem as provided in this Section 3.05. 




        Each
Fundamental Change Notice shall specify the circumstances constituting the Fundamental Change, the Fundamental Change Redemption Date, the price at which the Company shall be
obligated to redeem Notes, that the holder must exercise the redemption right on or prior to the close of business on the Fundamental Change Redemption Date (the "Fundamental
Change Expiration Time"), that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time, a description of the procedure
which a Noteholder must follow 


16





 

to
exercise such redemption right and to withdraw any surrendered Notes, the place or places where the holder is to surrender such holder's Notes, the amount of interest accrued on each Note to the
Fundamental Change Redemption Date and the CUSIP number or numbers of the Notes (if then generally in use). 



        No
failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders' redemption rights or affect the validity of the proceedings for the redemption
of the Notes pursuant to this Section 3.05. 



        (c)   For
a Note, other than a Global Note to be so redeemed at the option of the holder, the Company must receive at the office or agency of the Company maintained for that
purpose or, at the option of such holder, the Corporate Trust Office, such Note with the form entitled "Option to Elect Repayment upon a Fundamental
Change" on the reverse thereof duly completed, together with such Notes duly endorsed for transfer, on or before the Fundamental Change Expiration Time. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note for redemption shall be determined by the Company, whose determination shall be final and binding absent manifest error. 


        (d)   On
or prior to the Fundamental Change Redemption Date, the Company will deposit with the Trustee or with one or more paying agents (or, if the Company is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section 4.04) an amount of money sufficient to redeem on the Fundamental Change Redemption Date all the Notes to be
redeemed on such date at the appropriate redemption price, together with accrued interest to, but excluding, the Fundamental Change Redemption Date;  provided that if such payment is made on the
Fundamental Change Redemption Date it must be received by the Trustee or paying agent, as the case may be,
by 10:00 a.m. New York City time, on such date. Payment for Notes surrendered for redemption (and not withdrawn) prior to the Fundamental Change Expiration Time will be made promptly (but in no
event more than five (5) Business Days) following the Fundamental Change Redemption Date by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall
appear in the Note register. 


        (e)   In
the case of a reclassification, change, consolidation, merger, combination, sale or conveyance to which Section 14.06 applies, in which the Common Stock of the
Company is changed or exchanged as a result into the right to receive stock, securities or other property or assets (including cash), which includes shares of Common Stock of the Company or shares of
common stock of another Person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 50% of the aggregate fair
market value of such stock, securities or other property or assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (accompanied by an Opinion of Counsel
that such supplemental indenture complies with the Trust Indenture Act as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the
right of holders of the Notes to cause the Company to redeem the Notes following a Fundamental Change, including without limitation the applicable provisions of this Section 3.05 and the
definitions of Common Stock and Fundamental Change, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provisions apply to
such other Person if different from the Company and the common stock issued by such Person (in lieu of the Company and the Common Stock of the Company). 



17





 




        (f)    The
Company will comply with the provisions of Rule 13e-4 and any other tender offer rules under the Exchange Act to the extent then applicable in
connection with the redemption rights of the holders of Notes in the event of a Fundamental Change. 




        Section 3.06.    Repurchase of Notes by the Company at Option of the Holder.    Except as otherwise provided in
Section 3.05, the Holder may not require the Company to repurchase the Notes. 


 
 

ARTICLE 4    
    
    PARTICULAR COVENANTS OF THE COMPANY    



        Section 4.01.    Payment of Principal, Premium and Interest.    The Company covenants and agrees that it will
duly and punctually pay or cause to be paid the principal of and premium, if any (including the redemption price upon redemption pursuant to Article 3), and interest, on each of the Notes at
the places, at the respective times and in the manner provided herein and in the Notes. The Company will pay Liquidated Damages, if any, in the same manner on the dates and in the amounts set forth in
the Registration Rights Agreement. 


        Section 4.02.    Maintenance of Office or Agency.    The Company will maintain an office or agency in the
Borough of Manhattan, The City of New York, where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or for conversion or redemption and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency not designated or appointed by the Trustee. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the principal corporate trust office of the Trustee in the Borough
of Manhattan which office is located as of the date hereof at 101 Barclay Street, New York, New York 10286. 


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


        The
Company hereby initially designates the Trustee as paying agent, Note registrar, Custodian and conversion agent and each of the Corporate Trust Office and the office of agency of the
Trustee in the Borough of Manhattan, shall be considered as one such office or agency of the Company for each of the aforesaid purposes. 


        So
long as the Trustee is the Note registrar, the Trustee agrees to mail, or cause to be mailed, the notices set forth in Section 7.10(a) and the third paragraph of
Section 7.11. If co-registrars have been appointed in accordance with this Section, the Trustee shall mail such notices only to the Company and the holders of Notes it can identify
from its records. 


        Section 4.03.    Appointments to Fill Vacancies in Trustee's Office.    The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder. 


        Section 4.04.    Provisions as to Paying Agent.    (a) If the Company shall appoint a paying agent other
than the Trustee, or if the Trustee shall appoint such a paying agent, the Company will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section 4.04: 




        (1)   that
it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, or interest on the Notes (whether such sums have been paid
to it by the 




18





 


Company
or by any other obligor on the Notes) in trust for the benefit of the holders of the Notes; 


        (2)   that
it will give the Trustee notice of any failure by the Company (or by any other obligor on the Notes) to make any payment of the principal of and premium, if any, or
interest on the Notes when the same shall be due and payable; and 


        (3)   that
at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust. 





        The
Company shall, on or before each due date of the principal of, premium, if any, or interest on the Notes, deposit with the paying agent a sum (in funds which are immediately
available on the due date for such payment) sufficient to pay such principal, premium, if any, or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee
of any failure to take such action; provided that if such deposit is made on the due date, such deposit shall be received by the paying agent by
10:00 a.m. New York City time, on such date. 



        (b)   If
the Company shall act as its own paying agent, it will, on or before each due date of the principal of, premium, if any, or interest on the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum sufficient to pay such principal, premium, if any, or interest so
becoming due and will promptly notify the Trustee of any failure to take such action and of any failure by the Company (or any other obligor under the Notes) to make any payment of the principal of,
premium, if any, or interest on the Notes when the same shall become due and payable. 


        (c)   Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any paying agent hereunder as required by this Section 4.04, such sums to be
held by the Trustee upon the trusts herein contained and upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be released from all further
liability with respect to such sums. 


        (d)   Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject to Sections
12.03 and 12.04. 




        The
Trustee shall not be responsible for the actions of any other paying agents (including the Company if acting as its own paying agent) and shall have no control of any funds held by
such other paying agents. 


        Section 4.05.    Existence.    Subject to Article 11, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and rights (charter and statutory); provided that the Company shall not be
required to preserve any such right if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Noteholders. 


        Section 4.06.    Maintenance of Properties.    The Company will cause all properties used or useful in the
conduct of its business or the business of any Significant Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided that nothing in this Section shall prevent the Company from discontinuing
the operation or maintenance of any of such properties if 


19





 



such
discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any subsidiary and not disadvantageous in any material respect to the Noteholders. 


        Section 4.07.    Payment of Taxes and Other Claims.    The Company will pay or discharge, or cause to be paid
or discharged, before the same may become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any Significant Subsidiary or upon the income,
profits
or property of the Company or any Significant Subsidiary, (ii) all claims for labor, materials and supplies which, if unpaid, might by law become a lien or charge upon the property of the
Company or any Significant Subsidiary and (iii) all stamp taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or therein in connection
with the issuance, transfer, exchange, conversion or redemption of any Notes or with respect to this Indenture; provided that, in the case of clauses
(i) and (ii), the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim (A) if the failure to do so will not, in
the aggregate, have a material adverse impact on the Company, or (B) if the amount, applicability or validity is being contested in good faith by appropriate proceedings. 


        Section 4.08.    Rule 144A Information Requirement.    Within the period prior to the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), the Company covenants and agrees that it shall, during any period in which it
is not subject to Section 13 or 15(d) under the Exchange Act, make available to any holder or beneficial holder of Notes or any Common Stock issued upon conversion thereof which continue to be
Restricted Securities in connection with any sale thereof and any prospective purchaser of Notes or such Common Stock designated by such holder or beneficial holder, the information required pursuant
to Rule 144A(d)(4) under the Securities Act upon the request of any holder or beneficial holder of the Notes or such Common Stock and it will take such further action as any holder or
beneficial holder of such Notes or such Common Stock may reasonably request, all to the extent required from time to time to enable such holder or beneficial holder to sell its Notes or Common Stock
without registration under the Securities Act within the limitation of the exemption provided by Rule 144A, as such Rule may be amended from time to time. Upon the request of any holder or any
beneficial holder of the Notes or such Common Stock, the Company will deliver to such holder a written statement as to whether it has complied with such requirements. 



        Section 4.09.    Stay, Extension and Usury Laws.    The Company covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of, premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted. 


        Section 4.10.    Compliance Certificate.    The Company shall deliver to the Trustee, within one hundred twenty
(120) days after the end of each fiscal year of the Company, a certificate signed by either the principal executive officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the best knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and the status thereof of which
the signer may have knowledge. 


20





 



        The
Company will deliver to the Trustee, forthwith upon becoming aware of (i) any default in the performance or observance of any covenant, agreement or condition contained in
this Indenture, or (ii) any Event of Default, an Officers' Certificate specifying with particularity such default or Event of Default and further stating what action the Company has taken, is
taking or proposes to take with respect thereto. 


        Any
notice required to be given under this Section 4.10 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust Office. 


        Section 4.11.    Liquidated Damages Notice.    In the event that the Company is required to pay Liquidated
Damages to holders of Notes pursuant to the Registration Rights Agreement, the Company will provide written notice ("Liquidated Damages Notice") to the
Trustee of its obligation to pay Liquidated Damages no later than fifteen (15) days prior to the proposed payment date for the Liquidated Damages, and the Liquidated Damages Notice shall set
forth the amount of Liquidated Damages to be paid by the Company on such payment date. The Trustee shall not at any time be under any duty or responsibility to any holder of Notes to determine the
Liquidated Damages, or with respect to the nature, extent or calculation of the amount of Liquidated Damages when made, or with respect to the method employed in such calculation of the Liquidated
Damages. 


 
 

ARTICLE 5    
    
    NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE    



        Section 5.01.    Noteholders' Lists.    The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, semiannually, not more than fifteen (15) days after each May 1 and November 1
in each year beginning with May 15, 2003, and at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request (or such
lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of Notes as of a date not more than fifteen (15) days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior
to the time such information is furnished, except that no such list need be furnished by the Company to the Trustee so long as the Trustee is acting as the sole Note registrar. 


        Section 5.02.    Preservation and Disclosure of Lists.    (a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Notes contained in the most recent list furnished to it as provided in Section 5.01 or
maintained by the Trustee in its capacity as Note registrar or co-registrar in respect of the Notes, if so acting. The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished. 



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



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




        Section 5.03.    Reports by Trustee.    (a) Within sixty (60) days after May 15 of each
year commencing with the year 2003, the Trustee shall transmit to holders of Notes such reports dated as of May 15 of the year in which such reports are made concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. 


21





 

        (b)   A
copy of such report shall, at the time of such transmission to holders of Notes, be filed by the Trustee with each stock exchange and automated quotation system upon
which the Notes are listed and with the Company. The Company will promptly notify the Trustee in writing when the Notes are listed on any stock exchange or automated quotation system or delisted
therefrom. 




        Section 5.04.    Reports by Company.    The Company shall file with the Trustee (and the Commission if at any
time after the Indenture becomes qualified under the Trust Indenture Act), and transmit to holders of Notes, such information, documents and other reports and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act, whether or not the Notes are governed by such Act;  provided that any such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act shall be filed with the Trustee within fifteen (15) days after the same is so required to be filed with the Commission. Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer's Certificate). 


 
 

ARTICLE 6    
    
    REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT    




        Section 6.01.    Events of Default.    In case one or more of the following Events of Default (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have occurred and be continuing: 



        (a)   default
in the payment of any installment of interest (including Liquidated Damages) upon any of the Notes, as and when the same shall become due and payable, and
continuance of such default for a period of thirty (30) days; or 



        (b)   default
in the payment of the principal of or premium, if any, on any of the Notes as and when the same shall become due and payable either at maturity or in connection
with any redemption or otherwise, pursuant to Article 3, by acceleration or otherwise; or 


        (c)   default
in the payment of principal when due or a default resulting in acceleration of any of the Company's other indebtedness for borrowed money where the aggregate
principal amount with respect to which the default or acceleration has occurred exceeds $10 million, and such acceleration has not been rescinded or annulled within a period of thirty
(30) days; or 


        (d)   failure
on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Notes or in this Indenture
(other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in this Section 6.01 specifically dealt with) continued for a period of sixty (60) days after the date on which
written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or the Company and a Responsible Officer of the Trustee by the holders of
at least twenty-five percent (25%) in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04; or 



        (e)   the
Company shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against the Company, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or 



22







  




        (f)    an
involuntary case or other proceeding shall be commenced against the Company seeking liquidation, reorganization or other relief with respect to the Company or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company
or any substantial part of the property of the Company, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of ninety (90) consecutive days; 




then,
and in each and every such case (other than an Event of Default specified in Section 6.01(e) or 6.01(f)), unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Notes then outstanding hereunder determined in accordance with
Section 8.04, by notice in writing to the Company (and to the Trustee if given by Noteholders), may declare the principal of and premium, if any, on all the Notes and the interest accrued
thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Notes contained to the
contrary notwithstanding. If an Event of Default specified in Section 6.01(e) or 6.01(f) occurs, the principal of all the Notes and the interest accrued thereon shall be immediately and
automatically due and payable without necessity of further action. This provision, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so
declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon all Notes and the principal of and premium, if any, on any and all Notes which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate
borne by the Notes, to the date of such payment or deposit) and amounts due to the Trustee pursuant to Section 7.06, and if any and all defaults under this Indenture, other than the nonpayment
of principal of and premium, if any, and accrued interest on Notes which shall have become due by acceleration, shall have been cured or waived pursuant to Section 6.07, then and in every such
case the holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default and rescind
and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right
consequent thereon. The Company shall notify in writing a Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any Event of Default. 


        In
case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the holders of Notes, and the Trustee shall be restored respectively
to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the holders of Notes, and the Trustee shall continue as though no such proceeding had been taken. 



        Section 6.02.    Payments of Notes on Default; Suit Therefor.    The Company covenants that (a) in case
default shall be made in the payment of any installment of interest upon any of the Notes as and when the same shall become due and payable, and such default shall have continued for a period of
thirty (30) days, or (b) in case a default shall be made in the payment of the principal of or premium, if any, on any of the Notes as and when the same shall have become due and
payable, whether at maturity of the Notes or in connection with any redemption of the Notes, by acceleration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Notes, the whole amount that then shall have become due and payable on all such Notes for principal and premium, if any, or interest, as the case may be, with
interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable 


23





 



law)
upon the overdue installments of interest at the rate borne by the Notes, plus 1% and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other amounts due the Trustee under Section 7.06. Until such demand by the Trustee, the
Company may pay the principal of and premium, if any, and interest on the Notes to the registered holders, whether or not the Notes are overdue. 


        In
case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce
any such judgment or final decree against the Company or any other obligor on the Notes and collect in the manner provided by law out of the property of the Company or any other obligor on the Notes
wherever situated the monies adjudged or decreed to be payable. 


        In
case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the
Company or such other obligor, the property of the Company or such other obligor, or in the case of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to
the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal, premium, if any, and interest owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Noteholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any amounts due the Trustee under Section 7.06, and any receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, custodian or similar official is hereby authorized by each of
the Noteholders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any amount due
it for reasonable compensation, expenses, advances and disbursements, including counsel fees and expenses incurred by it up to the date of such distribution. To the extent that such payment of
reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings 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, monies, securities and other property which the holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under
any plan of reorganization or arrangement or otherwise. 


        All
rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the
holders of the Notes. 


        In
any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall
be held to 


24





 



represent
all the holders of the Notes, and it shall not be necessary to make any holders of the Notes parties to any such proceedings. 


        Section 6.03.    Application of Monies Collected by Trustee.    Any monies collected by the Trustee pursuant to
this Article 6 shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes, and stamping
thereon the payment, if only partially paid, and upon surrender thereof, if fully paid: 



        FIRST:
To the payment of all amounts due the Trustee under Section 7.06; 


        SECOND:
In case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on the Notes in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the Persons entitled thereto; 


        THIRD:
In case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount then owing and unpaid upon the
Notes
for principal and premium, if any, and interest with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Notes, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such
principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest or of interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest; and 


        FOURTH:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto. 




        Section 6.04.    Proceedings by Noteholder.    No holder of any Note shall have any right by virtue of or by
reference to any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless such holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof, as hereinbefore provided, and unless also the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable security or indemnity
as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to
Section 6.07; it being understood and intended, and being expressly covenanted by the taker and holder of every Note with every other taker and holder and the Trustee, that no one or more
holders of Notes shall have any right in any manner whatever by virtue of or by reference to any provision of this Indenture to affect, disturb or prejudice the rights of any other holder of Notes, or
to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein). For the protection and enforcement of this Section 6.04, each and every Noteholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity. 


25





 

        Notwithstanding
any other provision of this Indenture and any provision of any Note, the right of any holder of any Note to receive payment of the principal of and premium, if any
(including the redemption price upon redemption pursuant to Article 6), and accrued interest on such Note, on or after the respective due dates expressed in such Note or in the event of
redemption, or to institute suit for the enforcement of any such payment on or after such respective dates against the Company shall not be impaired or affected without the consent of such holder. 


        Anything
in this Indenture or the Notes to the contrary notwithstanding, the holder of any Note, without the consent of either the Trustee or the holder of any other Note, in its own
behalf and for its own benefit, may enforce, and may institute and maintain any proceeding suitable to enforce, its rights of conversion as provided herein. 


        Section 6.05.    Proceedings by Trustee.    In case of an Event of Default, the Trustee may, in its discretion,
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity
or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. 


        Section 6.06.    Remedies Cumulative and Continuing.    Except as provided in Section 2.06, all powers
and remedies given by this Article 6 to the Trustee or to the Noteholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any holder of any of the Notes to exercise any right or power accruing upon any default or Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or any acquiescence therein, and, subject to the provisions of Section 6.04, every power
and remedy given by this Article 6 or by law to the Trustee or to the Noteholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Noteholders. 


        Section 6.07.    Direction of Proceedings and Waiver of Defaults by Majority of Noteholders.    The holders of
a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee; provided that (a) such
direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action which is not inconsistent with such direction and (c) the
Trustee may decline to take any action that would benefit some Noteholder to the detriment of other Noteholders. The holders of a majority in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 may, on behalf of the holders of all of the Notes, waive any past default or Event of Default hereunder and its consequences except
(i) a default in the payment of interest or premium, if any, on, or the principal of, the Notes, (ii) a failure by the Company to convert any Notes into Common Stock, (iii) a
default in the payment of the redemption price pursuant to Article 3, or (iv) a default in respect of a covenant or provisions hereof which under Article 10 cannot be modified or
amended without the consent of the holders of each or all Notes then outstanding or affected thereby. Upon any such waiver, the Company, the Trustee and the holders of the Notes shall be restored to
their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by this Section 6.07, said default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have
been cured and to be not continuing; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. 


26





 



        Section 6.08.    Notice of Defaults.    The Trustee shall, within ninety (90) days after a Responsible
Officer of the Trustee has knowledge of the occurrence of a default, mail to all Noteholders, as the names and addresses of such holders appear upon the Note register, notice of all defaults known to
a Responsible Officer, unless such defaults shall have been cured or waived before the giving of such notice; provided that except in the case of
default in the payment of the principal of, or premium, if any, or interest on any of the Notes, the Trustee shall be protected in withholding such notice if and so long as a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Noteholders. 


        Section 6.09.    Undertaking to Pay Costs.    All parties to this Indenture agree, and each holder of any Note
by his acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this Section 6.09 (to the extent permitted by law) shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than ten percent in principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04, or to any suit instituted by any Noteholder for the enforcement of the payment of the principal of or premium, if any, or interest on any Note on or
after the due date expressed in such Note or to any suit for the enforcement of the right to convert any Note in accordance with the provisions of Article 14. 


 
 

ARTICLE 7
  
  THE TRUSTEE    



        Section 7.01.    Duties and Responsibilities of Trustee.    The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event
of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. 


        No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that: 



        (a)   prior
to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred: 




	(i)
	the
duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture and the Trust Indenture Act, and the Trustee shall not
be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture and the
Trust Indenture Act against the Trustee; and



	(ii)
	in
the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may conclusively rely as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same 





27





 




to
determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein); 






        (b)   the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless the Trustee was negligent in
ascertaining the pertinent facts; 


        (c)   the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the holders of
not less than a majority in principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; 



        (d)   whether
or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall
be subject to the provisions of this Section; 


        (e)   the
Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice
effected by the Company or any paying agent or any records maintained by any co-registrar with respect to the Notes; 


        (f)    if
any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may
conclusively rely on its failure to receive such notice as reason to act as if no such event occurred; and 


        (g)   the
Trustee shall not be deemed to have knowledge of any Event of Default hereunder unless a Responsible Officer of the Trustee shall have been notified in writing of
such Event of Default by the Company or the holders of at least 10% in aggregate principal amount of the Notes and such notice references the Notes and this Indenture. 




        None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. 


        Section 7.02.    Reliance on Documents, Opinions, Etc.    Except as otherwise provided in Section 7.01: 



        (a)   the
Trustee may conclusively rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon or other paper or document (whether in its original or facsimile form) believed by it in good faith to be genuine and to have been signed or presented by the
proper party or parties; 


        (b)   any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the
Company; 


        (c)   the
Trustee may consult with counsel of its own selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; 


        (d)   the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the
Noteholders pursuant to the 



28





 




provisions
of this Indenture, unless such Noteholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby; 


        (e)   the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document, but the Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; 


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



        (g)   the
Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; 


        (h)   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, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and 



        (i)    the
Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to
take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded. 




        Section 7.03.    No Responsibility for Recitals, Etc.    The recitals contained herein and in the Notes (except
in the Trustee's certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any
Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture. 


        Section 7.04.    Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes.    The Trustee, any
paying agent, any conversion agent or Note registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note registrar. 


        Section 7.05.    Monies to Be Held in Trust.    Subject to the provisions of Section 12.04, all monies
received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed in writing from
time to time by the Company and the Trustee. 


        Section 7.06.    Compensation and Expenses of Trustee.    The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in 


29





 



regard
to the compensation of a trustee of an express trust) as mutually agreed to from time to time in writing between the Company and the Trustee, and the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence,
willful misconduct or bad faith. The Company also covenants to indemnify the Trustee and any predecessor Trustee (or any officer, director or employee of the Trustee), in any capacity under this
Indenture and its agents and any authenticating agent for, and to hold them harmless against, any and all loss, liability, damage, claim or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence, willful misconduct or bad faith on the part of the Trustee or such officers, directors, employees and agent or authenticating agent, as the case may
be, and arising out of or in connection with the acceptance or administration of this trust or in any other capacity hereunder, including the costs and expenses of defending themselves against any
claim (whether asserted by the Company, any holder or any other Person) of liability in the premises. The obligations of the Company under this Section 7.06 to compensate or indemnify the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a lien prior to that of the Notes upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of particular Notes. The obligation of the Company under this Section shall survive the satisfaction and discharge of this Indenture. 



        When
the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(d) or (e) with respect to
the Company occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws. 


        Section 7.07.    Officers' Certificate as Evidence.    Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith or willful misconduct on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the Trustee. 


        Section 7.08.    Conflicting Interests of Trustee.    If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. 


        Section 7.09.    Eligibility of Trustee.    There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 (or if such Person is a member of a bank holding company
system, its bank holding company shall have a combined capital and surplus of at least $50,000,000). If such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article. 


        Section 7.10.    Resignation or Removal of Trustee.    (a) The Trustee may at any time resign by giving
written notice of such resignation to the Company and to the holders of Notes. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered 


30





 



to
the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment sixty (60) days after the mailing of such
notice of resignation to the Noteholders, the resigning Trustee may, upon ten (10) Business Days' notice to the Company and the Noteholders, appoint a successor identified in such notice or may
petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor trustee, or, if any Noteholder who has been a bona fide holder of a Note or Notes for at
least six (6) months may, subject to the provisions of Section 6.09, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. 



        (b)   In
case at any time any of the following shall occur: 




	(i)
	the
Trustee shall fail to comply with Section 7.08 after written request therefor by the Company or by any Noteholder who has been a bona fide holder of a Note or
Notes for at least six (6) months; or



	(ii)
	the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company
or by any such Noteholder; or



	(iii)
	the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; 






then,
in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.09, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee; provided that if no successor Trustee shall have been appointed and have accepted appointment sixty (60) days
after either the Company or the Noteholders has removed the Trustee, or the Trustee resigns, the Trustee so removed may petition, at the expense of the Company, any court of competent jurisdiction for
an appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. 



        (c)   The
holders of a majority in aggregate principal amount of the Notes at the time outstanding may at any time remove the Trustee and nominate a successor trustee which
shall be deemed appointed as successor trustee unless, within ten (10) days after notice to the Company of such nomination, the Company objects thereto, in which case the Trustee so removed or
any Noteholder, or if such Trustee so removed or any Noteholder fails to act, the Company, upon the terms and conditions and otherwise as in this Section 7.10(a) provided, may petition any
court of competent jurisdiction for an appointment of a successor trustee. 



        (d)   Any
resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section 7.11. 




        Section 7.11.    Acceptance by Successor Trustee.    Any successor trustee appointed as provided in
Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written 


31





 

request
of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of Section 7.06, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property and funds held or collected by such trustee as such, except for funds held in trust for the benefit of holders of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 7.06. 


        No
successor trustee shall accept appointment as provided in this Section 7.11 unless, at the time of such acceptance, such successor trustee shall be qualified under the
provisions of Section 7.08 and be eligible under the provisions of Section 7.09. 



        Upon
acceptance of appointment by a successor trustee as provided in this Section 7.11, the Company (or the former trustee, at the written direction of the Company) shall mail or
cause to be mailed notice of the succession of such trustee hereunder to the holders of Notes at their addresses as they shall appear on the Note register. If the Company fails to mail such notice
within ten (10) days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company. 


        Section 7.12.    Succession by Merger.    Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee (including any trust created by this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that in the case of any corporation succeeding to all or substantially all of the corporate trust business of the Trustee,
such corporation shall be qualified under the provisions of Section 7.08 and shall be eligible under the provisions of Section 7.09. 


        In
case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated;
and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee or any authenticating agent appointed by such successor trustee may authenticate such Notes in
the name of the successor trustee;
and in all such cases such certificates shall have the full force that is provided in the Notes or in this Indenture; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or
consolidation. 


        Section 7.13.    Preferential Collection of Claims.    If and when the Trustee shall be or become a creditor of
the Company (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of the claims against the Company (or any such
other obligor). 


32








  



 
 

ARTICLE 8
  
  THE NOTEHOLDERS    



        Section 8.01.    Action by Noteholders.    Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action, the holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in writing, or (b) by the record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of
Noteholders. Whenever the Company or the Trustee solicits the taking of any action by the holders of the Notes, the Company or the Trustee may fix in advance of such solicitation, a date as the record
date for determining holders entitled to take such action. The record date shall be not more than fifteen (15) days prior to the date of commencement of solicitation of such action. 



        Section 8.02.    Proof of Execution by Noteholders.    Subject to the provisions of Sections 7.01, 7.02 and
9.05, proof of the execution of any instrument by a Noteholder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the registry of such Notes or by a certificate of the Note registrar. 


        The
record of any Noteholders' meeting shall be proved in the manner provided in Section 9.06. 



        Section 8.03.    Who Are Deemed Absolute Owners.    The Company, the Trustee, any paying agent, any conversion
agent and any Note registrar may deem the Person in whose name such Note shall be registered upon the Note register to be, and may treat it as, the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Note registrar) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and interest on such Note, for conversion of such Note and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any
conversion agent nor any Note registrar shall be affected by any notice to the contrary. All such payments so made to any holder for the time being, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Note. 


        Section 8.04.    Company-owned Notes Disregarded.    In determining whether the holders of the requisite
aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes which are owned by the Company or any other obligor on the Notes or any
Affiliate of the Company or any other obligor on the Notes shall be disregarded and deemed not to be outstanding for the purpose of any such determination;  provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action,
only Notes which a Responsible Officer knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this
Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Notes and that the pledgee is not the Company, any other obligor on the Notes or
any Affiliate of the Company or any such other obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for
the account of any of the above described Persons, and, subject to Section 7.01, the Trustee shall be 


33





 



entitled
to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such
determination. 


        Section 8.05.    Revocation of Consents, Future Holders Bound.    At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the percentage in aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the evidence to be included in the Notes the holders of which have consented to such action may, by filing written notice with the
Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the
holder of any Note shall be conclusive and binding upon such holder and upon all future holders and owners of such Note and of any Notes issued in exchange or substitution therefor, irrespective of
whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor. 


 
 

ARTICLE 9
  
  MEETINGS OF NOTEHOLDERS    



        Section 9.01.    Purpose of Meetings.    A meeting of Noteholders may be called at any time and from time to
time pursuant to the provisions of this Article 9 for any of the following purposes: 




        (1)   to
give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any default
or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Noteholders pursuant to any of the provisions of Article 6; 


        (2)   to
remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7; 


        (3)   to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or 



        (4)   to
take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Notes under any other provision of this
Indenture or under applicable law. 





        Section 9.02.    Call of Meetings by Trustee.    The Trustee may at any time call a meeting of Noteholders to
take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Noteholders, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be mailed to holders of Notes
at their addresses as they shall appear on the Note register. Such notice shall also be mailed to the Company. Such notices shall be mailed not less than twenty (20) nor more than ninety
(90) days prior to the date fixed for the meeting. 


        Any
meeting of Noteholders shall be valid without notice if the holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting
by the holders of all Notes outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice. 



        Section 9.03.    Call of Meetings by Company or Noteholders.    In case at any time the Company, pursuant to a
resolution of its Board of Directors, or the holders of at least ten percent (10%) in aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within twenty 


34





 



(20) days
after receipt of such request, then the Company or such Noteholders may determine the time and the place for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02. 


        Section 9.04.    Qualifications for Voting.    To be entitled to vote at any meeting of Noteholders a person
shall (a) be a holder of one or more Notes on the record date pertaining to such meeting or (b) be a person appointed by an instrument in writing as proxy by a holder of one or more
Notes on the record date pertaining to such meeting. The only persons who shall be entitled to be present or to speak at any meeting of Noteholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. 


        Section 9.05.    Regulations.    Notwithstanding any other provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Noteholders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall
think fit. 


        The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Noteholders as provided in
Section 9.03, in which case the Company or the Noteholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority in principal amount of the Notes represented at the meeting and entitled to vote at the meeting. 


        Subject
to the provisions of Section 8.04, at any meeting each Noteholder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or
represented by him; provided that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by him or instruments in writing as aforesaid duly designating
him as the proxy to vote on behalf of other Noteholders. Any meeting of Noteholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time by the
holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice. 



        Section 9.06.    Voting.    The vote upon any resolution submitted to any meeting of Noteholders shall be by
written ballot on which shall be subscribed the signatures of the holders of Notes or of their representatives by proxy and the outstanding principal amount of the Notes held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary
of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Noteholders shall be prepared by the secretary
of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall show the principal amount of the Notes voting
in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to
the Company and the other to
the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. 



        Any
record so signed and verified shall be conclusive evidence of the matters therein stated. 


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        Section 9.07.    No Delay of Rights by Meeting.    Nothing contained in this Article 9 shall be deemed
or construed to authorize or permit, by reason of any call of a meeting of Noteholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to the Noteholders under any of the provisions of this Indenture or of the Notes. 


 
 

ARTICLE 10
  
  SUPPLEMENTAL INDENTURES    



        Section 10.01.    Supplemental Indentures Without Consent of Noteholders.    The Company, when authorized by
the resolutions of the Board of Directors, and the Trustee may, from time to time, and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes: 



        (a)   make
provision with respect to the conversion rights of the holders of Notes pursuant to the requirements of Section 14.06 and the redemption obligations of the
Company pursuant to the requirements of Section 3.05(e); 


        (b)   to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the Notes, any property or assets; 


        (c)   to
evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and
obligations of the Company pursuant to Article 11; 


        (d)   to
add to the covenants of the Company such further covenants, restrictions or conditions as the Board of Directors and the Trustee shall consider to be for the benefit
of the holders of Notes, and to
make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a default or an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set forth; provided that in respect of any such additional covenant, restriction or
condition, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default; 


        (e)   to
provide for the issuance under this Indenture of Notes in coupon form (including Notes registrable as to principal only) and to provide for exchangeability of such
Notes with the Notes issued hereunder in fully registered form and to make all appropriate changes for such purpose; 


        (f)    to
cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture that may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture that shall not materially adversely affect
the interests of the holders of the Notes; 


        (g)   to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes; 


        (h)   to
modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualifications of this Indenture under the Trust
Indenture Act, or under any similar federal statute hereafter enacted; or 



36





 




        (i)    to
make any other change that does not adversely affect any right of the holders of Notes under this Indenture. 




        Upon
the written request of the Company, accompanied by a copy of the resolutions of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of
any supplemental indenture, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
that may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. 


        Any
supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the holders of any of the Notes
at the time outstanding, notwithstanding any of the provisions of Section 10.02. 



        Notwithstanding
any other provision of the Indenture or the Notes, the Registration Rights Agreement and the obligation to pay Liquidated Damages thereunder may be amended, modified or
waived in accordance with the provisions of the Registration Rights Agreement. 


        Section 10.02.    Supplemental Indenture with Consent of Noteholders.    With the consent (evidenced as
provided in Article 8) of the holders of at least a majority in aggregate principal amount of the Notes at the time outstanding, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the holders of the Notes;  provided that no such supplemental indenture shall
(i) extend the fixed maturity of any Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof or premium, if any, thereon, or reduce any amount payable on redemption thereof, or impair the right of any Noteholder to institute suit for
the payment thereof, or make the principal thereof or interest or premium, if any, thereon payable in any coin or currency other than that provided in the Notes, or change the obligation of the
Company to redeem any Note on a redemption date in a manner adverse to the holders of Notes, or change the obligation of the Company to redeem any Note upon the happening of a Fundamental Change in a
manner adverse to the holders of Notes, or impair the right to convert the Notes into Common Stock subject to the terms set forth herein, including Section 14.06, without the consent of the
holder of each Note so affected, or modify any of the provisions of this Section 10.02 or Section 6.07, except to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the holder of each Note so affected, or change any obligation of the Company to maintain an office or agency in the places and for
the purposes set forth in Section 4.02, or reduce the quorum or voting requirements set forth in Article 9 or (ii) reduce the aforesaid percentage of Notes, the holders of which
are required to consent to any such supplemental indenture, without the consent of the holders of all Notes then outstanding. 



        Upon
the written request of the Company, accompanied by a copy of the resolutions of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Noteholders as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture. 


37





 



        It
shall not be necessary for the consent of the Noteholders under this Section 10.02 to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof. 


        Section 10.03.    Effect of Supplemental Indenture.    Any supplemental indenture executed pursuant to the
provisions of this Article 10 shall comply with the Trust Indenture Act provided that this Section 10.03 shall not require such supplemental indenture or the Trustee to be qualified
under the Trust Indenture Act prior to the time such qualification is in fact required under the terms of the Trust Indenture Act or the Indenture has been qualified under the Trust Indenture Act, nor
shall it constitute any admission or acknowledgment by any party to such supplemental indenture that any such qualification is required prior to the time such qualification is in fact required under
the terms of the Trust Indenture Act or the Indenture has been qualified under the Trust Indenture Act. Upon the execution of any supplemental indenture pursuant to the provisions of this
Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of Notes shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. 


        Section 10.04.    Notation on Notes.    Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 10 may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may, at the Company's expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to
Section 15.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding. 


        Section 10.05.    Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee.    Prior to
entering into any supplemental indenture, the Trustee shall be provided with an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article 10. 


 
 

ARTICLE 11
  
  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE    



        Section 11.01.    Company May Consolidate on Certain Terms.    Subject to the provisions of
Section 11.02, the Company shall not consolidate or merge with or into any other Person or Persons (whether or not affiliated with the Company), nor shall the Company or its successor or
successors be a party or parties to successive consolidations or mergers, nor shall the Company sell, convey, transfer or lease the property and assets of the Company substantially as an entirety, to
any other Person (whether or not affiliated with the Company), unless: (i) the Company is the surviving Person, or the resulting, surviving or transferee Person is a corporation organized and
existing under the laws of the United States of America, any state thereof or the District of Columbia; (ii) upon any such consolidation, merger, sale, conveyance, transfer or lease, the due
and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the
Person (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the Person that shall have acquired or leased such property, and such
supplemental indenture shall provide for the 


38





 



applicable
conversion rights set forth in Section 14.06; and (iii) immediately after giving effect to the transaction described above, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing. 



        Section 11.02.    Successor to Be Substituted.    In case of any such consolidation, merger, sale, conveyance,
transfer or lease and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the
Company, such successor Person shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of this first part. Such successor Person thereupon
may cause to be signed, and may issue either in its own name or in the name of Nextel Partners, Inc. any or all of the Notes, issuable hereunder that theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the officers of the Company to the Trustee
for authentication, and any Notes that such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of
the execution hereof. In the event of any such consolidation, merger, sale, conveyance, transfer or lease, the Person named as the "Company" in the
first paragraph of this Indenture or any successor that shall thereafter have become such in the manner prescribed in this Article 11 may be dissolved, wound up and liquidated at
any time thereafter and such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture. 


        In
case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be
issued as may be appropriate. 


        Section 11.03.    Opinion of Counsel to Be Given Trustee.    The Trustee shall receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption complies with the provisions of this
Article 11. 


 
 

ARTICLE 12
  
  SATISFACTION AND DISCHARGE OF INDENTURE    




        Section 12.01.    Discharge of Indenture.    When (a) the Company shall deliver to the Trustee for
cancellation all Notes theretofore authenticated (other than any Notes that have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated
and delivered) and not theretofore canceled, or (b) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms
to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company
shall deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon redemption of all of the Notes (other than any Notes that shall have been mutilated, destroyed, lost or stolen and
in lieu of or in substitution for which other Notes shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and premium,
if any, and interest due or to become due to such date of maturity or redemption date, as the case may be, accompanied by a verification report, as to the sufficiency of the deposited amount, from an
independent certified accountant or other financial professional satisfactory to the Trustee, and if the Company shall also pay 


39





 



or
cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (i) remaining rights of registration of transfer,
substitution and exchange and conversion of Notes, (ii) rights hereunder of Noteholders to receive payments of principal of and premium, if any, and interest on, the Notes and the other rights,
duties and obligations of Noteholders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on written demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel as required by Section 15.04 and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture
or the Notes. 


        Section 12.02.    Deposited Monies to Be Held in Trust by Trustee.    Subject to Section 12.04, all
monies deposited with the Trustee pursuant to Section 12.01 shall be held in trust for the sole benefit of the Noteholders, and such monies shall be applied by the Trustee to the payment,
either directly or through any paying agent (including the Company if acting as its own paying agent), to the holders of the particular Notes for the payment or redemption of which such monies have
been deposited with the Trustee, of all sums due and to become due thereon for principal and interest and premium, if any. 


        Section 12.03.    Paying Agent to Repay Monies Held.    Upon the satisfaction and discharge of this Indenture,
all monies then held by any paying agent of the Notes (other than the Trustee) shall, upon written
request of the Company, be repaid to it or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such monies. 



        Section 12.04.    Return of Unclaimed Monies.    Subject to the requirements of applicable law, any monies
deposited with or paid to the Trustee for payment of the principal of, premium, if any, or interest on Notes and not applied but remaining unclaimed by the holders of Notes for two years after the
date upon which the principal of, premium, if any, or interest on such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on demand and all
liability of the Trustee shall thereupon cease with respect to such monies; and the holder of any of the Notes shall thereafter look only to the Company for any payment that such holder may be
entitled to collect unless an applicable abandoned property law designates another Person. 



        Section 12.05.    Reinstatement.    If the Trustee or the paying agent is unable to apply any money in
accordance with Section 12.02 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01 until such time as the Trustee or the paying agent is
permitted to apply all such money in accordance with Section 12.02; provided that if the Company makes any payment of interest on or principal of
any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the holders of such Notes to receive such payment from the money held by the Trustee or paying
agent. 


40








  



 
 

ARTICLE 13
  
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS    



        Section 13.01.    Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal
of or premium, if any, or interest on any Note, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture or in any supplemental indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent,
officer, director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes. 


 
 

ARTICLE 14
  
  CONVERSION OF NOTES    



        Section 14.01.    Right to Convert. (a) Subject to and upon compliance with the provisions of this
Indenture, at any time prior to 5:00 p.m. (New York City time) on May 15, 2008, the holder of any Note shall have the right, at such holder's option, to convert the principal amount of
the Note, or any portion of such principal amount which is an integral multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as such shares shall then be
constituted) at the Conversion Rate in effect at such time, by surrender of the Note so to be converted in whole or in part, together with any required funds, under the circumstances described in this
Section 14.01 and in the manner provided in Section 14.02. 



        (b)   A
Note in respect of which a holder is electing to exercise its option to require redemption upon a Fundamental Change pursuant to Section 3.05 may be converted
only if such holder withdraws its election in accordance with Section 3.05(b). A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has converted his
Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article 14. 




        Section 14.02.    Exercise of Conversion Privilege; Issuance of Common Stock on Conversion; No Adjustment for Interest or
Dividends.    In order to exercise the conversion privilege with respect to any Note in certificated form, the Company must receive at the office or agency of the
Company maintained for that purpose or, at the option of such holder, the Corporate Trust Office, such Note with the original or facsimile of the form entitled "Conversion
Notice" on the reverse thereof, duly completed and manually signed, together with such Notes duly endorsed for transfer, accompanied by the funds, if any, required by the
penultimate paragraph of this Section 14.02. Such notice shall also state the name or names (with address or addresses) in which the certificate or certificates for shares of Common Stock which
shall be issuable on such conversion shall be issued, and shall be accompanied by transfer or similar taxes, if required pursuant to Section 14.07. 


        In
order to exercise the conversion privilege with respect to any interest in a Global Note, the beneficial holder must complete, or cause to be completed, the appropriate instruction
form for conversion pursuant to the Depositary's book-entry conversion program, deliver, or cause to be delivered, by book-entry delivery an interest in such Global Note,
furnish appropriate endorsements and transfer documents if required by the Company or the Trustee or conversion agent, and pay the 


41





 



funds,
if any, required by this Section 14.02 and any transfer taxes if required pursuant to Section 14.07. 


        As
promptly as practicable after satisfaction of the requirements for conversion set forth above, subject to compliance with any restrictions on transfer if shares issuable on conversion
are to be issued in a name other than that of the Noteholder (as if such transfer were a transfer of the Note or Notes (or portion thereof) so converted), the Company shall issue and shall deliver to
such Noteholder at the office or agency maintained by the Company for such purpose pursuant to Section 4.02, a certificate or certificates for the number of full shares of Common Stock issuable
upon the conversion of such Note or portion thereof as determined by the Company in accordance with the provisions of this Article 14 and a check or cash in respect of any fractional interest
in respect of a share of Common Stock arising upon such conversion, calculated by the Company as provided in Section 14.03. In case any Note of a denomination greater than $1,000 shall be
surrendered for partial conversion, and subject to Section 2.03, the Company shall execute and the Trustee shall authenticate and deliver to the holder of the Note so surrendered, without
charge to him, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note. 



        Each
conversion shall be deemed to have been effected as to any such Note (or portion thereof) on the date on which the requirements set forth above in this Section 14.02 have
been satisfied as to such Note (or portion thereof), and the Person in whose name any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become on said date the holder of record of the shares represented thereby; provided that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the Person in whose name the certificates are to be issued as the record holder thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date upon which such Note shall be surrendered. 


        Any
Note or portion thereof surrendered for conversion during the period from the close of business on the record date for any interest payment date to the close of business on the
Business Day preceding the following interest payment date that has not been called for redemption during such period shall be accompanied by payment, in immediately available funds or other funds
acceptable to the Company, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted;  provided that no such payment need be made to the
extent that there shall exist at the time of conversion a default in the payment of interest on the
Notes. Except as provided above in this Section 14.02, no payment or other adjustment shall be made for interest accrued on any Note converted or for dividends on any shares issued upon the
conversion of such Note as provided in this Article 14. 


        Upon
the conversion of an interest in a Global Note, the Trustee (or other conversion agent appointed by the Company), or the Custodian at the direction of the Trustee (or other
conversion agent appointed by the Company), shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing
of any conversions of Notes effected through any conversion agent other than the Trustee. 



        Upon
the conversion of a Note, that portion of the accrued but unpaid interest with respect to the converted Note shall not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the holder thereof through delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares) in exchange for the Note being converted
pursuant to the provisions hereof; and the fair market value of such shares of Common Stock (together with any such cash payment in lieu of fractional shares) shall be treated as issued, to the extent
thereof, first in exchange for and in satisfaction of our obligation to pay the principal amount of the converted Note, the accrued but unpaid interest, and the balance, if any, of such fair market
value of such Common Stock (and any 


42





 



such
cash payment) shall be treated as issued in exchange for and in satisfaction of the right to convert the Note being converted pursuant to the provisions hereof. 


        Section 14.03.    Cash Payments in Lieu of Fractional Shares.    No fractional shares of Common Stock or scrip
certificates representing fractional shares shall be issued upon conversion of Notes. If more than one Note shall be surrendered for conversion at one time by the same holder, the number of full
shares that shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so
surrendered. If any fractional share of stock would be issuable upon the conversion of any Note or Notes, the Company shall make an adjustment and payment therefor in cash at the current market price
thereof to the holder of Notes. The current market price of a share of Common Stock shall be the Closing Sale Price on the last Trading Day immediately preceding the day on which the Notes (or
specified portions thereof) are deemed to have been converted. 


        Section 14.04.    Conversion Rate.    Each $1,000 principal amount of the Notes shall be convertible into the
number of shares of Common Stock specified in the form of Note (herein called the "Conversion Rate") attached as Exhibit A hereto, subject to
adjustment as provided in this Article 14. 


        Section 14.05.    Adjustment of Conversion Rate.    The Conversion Rate shall be adjusted from time to time by
the Company as follows: 



        (a)   In
case the Company shall hereafter issue Class A Common Stock as a dividend or distribution on its Class A Common Stock, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a fraction, 




	(i)
	the
numerator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other distribution; and



	(ii)
	the
denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination, 






such
increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purpose of this paragraph (a), the number of
shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company. If any dividend or distribution of the type described in this Section 14.05(a) is declared but not so paid or made, the Conversion Rate shall again be
adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. 



        (b)   In
case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within
forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price on the date fixed for determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be increased so that the
same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such rights or warrants by a
fraction, 



43





 



	(i)
	the
numerator of which shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or
warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and



	(ii)
	the
denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the number of shares that the aggregate offering price of the total number of shares so offered would purchase at such Current Market
Price. 






        Such
adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the
date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants,
the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into
account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors. 



        (c)   In
case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day
upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes effective. 



        (d)   In
case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company or evidences of
its indebtedness or assets (including securities, but excluding any rights or warrants referred to in Section 14.05(b), and excluding any dividend or distribution (x) paid exclusively in
cash or (y) referred to in Section 14.05(a) (any of the foregoing hereinafter in this Section 14.05(d)) called the "Securities")),
then, in each such case (unless the Company elects to reserve such Securities for distribution to the Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive
upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had
converted its Notes into Common Stock immediately prior to the Record Date), the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion
Rate in effect on the Record Date with respect to such distribution by a fraction, 




	(i)
	the
numerator of which shall be the Current Market Price on such Record Date; and



	(ii)
	the
denominator of which shall be the Current Market Price on such Record Date less the fair market value (as determined by the Board of Directors, whose 





44





 




determination
shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock, 







such
adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided that if the then fair
market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu
of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of Securities such holder would have received had such
holder converted each Note on the Record Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 14.05(d) by reference
to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable
Record Date. 


        Rights
or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either
initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be
deemed not to have been distributed for purposes of this Section 14.05 (and no adjustment to the Conversion Rate under this Section 14.05 will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this
Section 14.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of
which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed
to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of
the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.05 was made, (1) in
the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder
or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or
repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such
rights and warrants had not been issued. 


        No
adjustment of the Conversion Rate shall be made pursuant to this Section 14.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the
extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. 


        For
purposes of this Section 14.05(d) and Sections 14.05(a) and (b), any dividend or distribution to which this Section 14.05(d) is applicable that also includes shares of
Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to 


45





 



be
(1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Rate
adjustment required by this Section 14.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of
Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 14.05(a) and 14.05(b) with respect to such dividend or distribution shall then be made), except
(A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the
date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Sections 14.05(a) and 14.05(b) and
(B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning
of Section 14.05(a). 



        (e)   In
case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any quarterly cash dividend on the Common
Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed 1.25% of the arithmetic average of the Closing Sale Price during the ten Trading Days
immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to
the close of business on such record date by a fraction, 




	(i)
	the
numerator of which shall be the Current Market Price on such record date; and



	(ii)
	the
denominator of which shall be the Current Market Price on such record date less the amount of cash so distributed (and not excluded as provided above) applicable to
one share of Common Stock, 






such
adjustment to be effective immediately prior to the opening of business on the day following the record date; provided that if the portion of the
cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the record date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Noteholder shall have the right to receive upon conversion the amount of cash such holder would have received had such holder converted each Note on the record date. If such dividend
or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. If any adjustment is required to be made as set forth in this Section 14.05(e) as a result of a distribution that is a quarterly dividend, such adjustment
shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set
forth in this Section 14.05(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. 



        (f)    In
case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board of Directors) that as of the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time,
the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the Expiration Time by a fraction, 



46





 



	(i)
	the
numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, and



	(ii)
	the
denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the
Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, 






such
adjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such tender or exchange offer had not been made. 



        (g)   In
case of a tender or exchange offer made by a Person other than the Company or any Subsidiary for an amount that increases the offeror's ownership of Common Stock to
more than twenty-five percent (25%) of the Common Stock outstanding and shall involve the payment by such Person of consideration per share of Common Stock having a Fair Market Value (as
determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) that as of the last time (the "Offer
Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) exceeds the Closing Price of a share of Common
Stock on the Trading Day next succeeding the Offer Expiration Time, and in which, as of the Offer Expiration Time the Board of Directors is not recommending rejection of the offer, the Conversion Rate
shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the Offer Expiration Time by a fraction, 




	(i)
	the
numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Offer Expiration Time (the shares deemed
so accepted, up to any such maximum, being referred to as the "Accepted Purchased Shares") and (y) the product of the number of shares of Common
Stock outstanding (less any Accepted Purchased Shares) at the Offer Expiration Time and the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Offer Expiration Time,
and



	(ii)
	the
denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Offer Expiration Time multiplied
by the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Offer Expiration Time, 






such
adjustment to become effective immediately prior to the opening of business on the day following the Offer Expiration Time. If such Person is obligated to purchase shares pursuant to any such
tender or exchange offer, but such Person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. 


47





 



Notwithstanding
the foregoing, the adjustment described in this Section 14.05(g) shall not be made if, as of the Offer Expiration Time, the offering documents with respect to such offer
disclose a plan or intention to cause the Company to engage in any transaction described in Article 11. 



        (h)   If
the Company pays a dividend or makes a distribution to all holders of its Common Stock consisting of capital stock of any class or series, or similar equity
interests, of or relating to a Subsidiary or other business unit of the Company, the conversion rate shall be increased so that the same shall be
equal to the rate determined by multiplying the conversion rate in effect on the Record Date with respect to such distribution by a fraction, 




	(i)
	the
numerator of which shall be the sum of (A) the average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days commencing on and
including the fifth Trading Day after the date on which "ex-dividend trading" commences for such dividend or distribution on the Nasdaq National Market or such other national or regional
exchange or market which such securities are then listed or quoted (the "Ex-Dividend Date")  plus (B) the fair market value of the securities
distributed in respect of each share of Common Stock for which this Section 14.05(h)
applies and shall equal the number of securities distributed in respect of each share of Common Stock multiplied by the average of the closing sale prices of those securities distributed for the ten
(10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date; and



	(ii)
	the
denominator of which shall be the average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days commencing on and including the fifth
Trading Day after the Ex-Dividend Date, 






such
adjustment to become effective immediately prior to the opening of business on the day following fifteenth Trading Day after the Ex-Dividend Date; provided
that if (x) the average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date minus (y) the fair market value of the securities distributed in respect of each share of Common Stock for which
this Section 14.05(h) applies (as calculated in Section 14.05(h)(ii)(B) above) is less than $1.00, then the adjustment provided by for by this Section 14.05(h) shall not be made
and in lieu thereof the provisions of Section 14.06 shall apply to such distribution. 



        (i)    For
purposes of this Section 14.05, the following terms shall have the meaning indicated: 




	(i)
	"Current Market Price" shall mean the average of the daily Closing Sale Prices per share of Common Stock for the ten
consecutive Trading Days selected by the Company commencing no more than 30 Trading Days before and ending not later than the earlier of such date of determination and the day before the
"ex" date with respect to the issuance, distribution, subdivision or combination requiring such computation immediately prior to the date in question.
For purpose of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the
Common Stock trades, regular way, on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution, and
(2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades, regular way, on such exchange or in such market
after the time at which such subdivision or combination becomes effective. 





        If
another issuance, distribution, subdivision or combination to which Section 14.05 applies occurs during the period applicable for calculating "Current
Market Price" pursuant 




48





 


to
the definition in the preceding paragraph, "Current Market Price" shall be calculated for such period in a manner determined by the Board of
Directors to reflect the impact of such issuance, distribution, subdivision or combination on the Closing Sale Price of the Common Stock during such period. 



	(ii)
	"Fair Market Value" shall mean the amount which a willing buyer would pay a willing seller in an arm's-length
transaction.



	(iii)
	"Record Date" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders
of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).



	(iv)
	"Trading Day" shall mean (x) if the applicable security is quoted on the Nasdaq National Market, a day on which
trades may be made thereon or (y) if the applicable security is listed or admitted for trading on the New York Stock Exchange or another national securities exchange, a day on which the New
York Stock Exchange or another national securities exchange is open for business or (z) if the applicable security is not so listed, admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. 






        (j)    The
Company may make such increases in the Conversion Rate, in addition to those required by Section 14.05(a), (b), (c), (d), (e), (f), (g) or
(h) as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. 




        To
the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty
(20) days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to holders of record of the Notes a notice of the increase at
least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect. 



        (k)   No
adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in such rate;  provided that any adjustments that by reason
of this Section 14.05(k) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Article 14 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. No adjustment need be made for rights to purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest or for any
issuance of Common Stock or convertible or exchangeable securities or rights to purchase Common Stock or convertible or exchangeable securities. To the extent the Notes become convertible into cash,
assets, property or securities (other than capital stock of the Company), no adjustment need be made thereafter as to the cash, assets, property or such securities. Interest will not accrue on any
cash into which the Notes are convertible. 



49





 

        (l)    Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any conversion agent other than the Trustee an
Officers' Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the
Trustee shall have received such Officers' Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which
it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the holder of each Note at his last address appearing on the Note
register provided for in Section 2.05 of this Indenture, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any
such adjustment. 


        (m)  In
any case in which this Section 14.05 provides that an adjustment shall become effective immediately after (1) a record date or Record Date for an event,
(2) the date fixed for the determination of stockholders entitled to receive a dividend or distribution pursuant to Section 14.05(a), (3) a date fixed for the determination of
stockholders entitled to receive rights or warrants pursuant to Section 14.05(b), (4) the Expiration Time for any tender or exchange offer pursuant to Section 14.05(f), or
(5) the Offer Expiration Time for a tender or exchange offer pursuant to Section 14.05(g)(i) (each a "Determination Date"), the
Company may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note converted after such
Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such conversion by reason of the adjustment required by
such Adjustment Event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such holder any amount in cash in lieu of any
fraction pursuant to Section 14.03. For purposes of this Section 14.05(m), the term "Adjustment Event" shall mean: 




	(i)
	in
any case referred to in clause (1) hereof, the occurrence of such event,



	(ii)
	in
any case referred to in clause (2) hereof, the date any such dividend or distribution is paid or made,



	(iii)
	in
any case referred to in clause (3) hereof, the date of expiration of such rights or warrants, and



	(iv)
	in
any case referred to in clause (4) or clause (5) hereof, the date a sale or exchange of Common Stock pursuant to such tender or exchange offer is
consummated and becomes irrevocable. 






        (n)   For
purposes of this Section 14.05, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company. 




        Section 14.06.    Effect of Reclassification, Consolidation, Merger or Sale.    If any of the following events
occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a subdivision or combination to which Section 14.05(c) applies), (ii) any
consolidation, merger or combination of the Company with another Person as a result of which holders of Common Stock shall be entitled to receive stock, other securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, or (iii) any sale or conveyance of all or substantially all of the properties and assets of the Company to any other
Person as a result of which holders of 


50





 

Common
Stock shall be entitled to receive stock, other securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Company or the successor
or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture) providing that each Note shall be convertible into the kind and amount of shares of stock, other securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance by a holder of a number of shares of Common Stock issuable upon conversion of such Notes (assuming, for such purposes,
a sufficient number of authorized shares of Common Stock are available to convert all such Notes) immediately prior to such reclassification, change, consolidation, merger, combination, sale or
conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, as to the kind or amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, combination, sale or conveyance (provided that, if the kind or amount of stock, other securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation, merger, combination, sale or conveyance is not the same for each share of Common Stock in respect of which such rights of
election shall not have been exercised ("non-electing share"), then for the purposes of this Section 14.06 the kind and amount of
stock, other securities or other property or assets (including cash) receivable upon such reclassification, change, consolidation, merger, combination, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 14. 


        The
Company shall cause notice of the execution of such supplemental indenture to be mailed to each holder of Notes, at its address appearing on the Note register provided for in
Section 2.05 of this Indenture, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. 


        The
above provisions of this Section shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. 


        If
this Section 14.06 applies to any event or occurrence, Section 14.05 shall not apply. 


        Section 14.07.    Taxes on Shares Issued.    The issue of stock certificates on conversions of Notes shall be
made without charge to the converting Noteholder for any documentary, stamp or similar issue or transfer tax in respect of the issue thereof. The Company shall not, however, be required to pay any
such tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the holder of any Note converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the Person or Persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid. 


        Section 14.08.    Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing of Common
Stock.    The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common
Stock to provide for the conversion of the Notes from time to time as such Notes are presented for conversion. 


        Before
taking any action which would cause an adjustment increasing the Conversion Rate to an amount that would cause the Conversion Price to be reduced below the then par value, if any,
of the shares of Common Stock issuable upon conversion of the Notes, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Common Stock at such adjusted Conversion Rate. 


51





 



        The
Company covenants that all shares of Common Stock which may be issued upon conversion of Notes will upon issue be fully paid and non-assessable by the Company and free
from all taxes, liens and charges with respect to the issue thereof. 


        The
Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion, the Company will in good faith and as expeditiously as possible, to the extent then permitted by the
rules and interpretations of the Commission (or any successor thereto), endeavor to secure such registration or approval, as the case may be. 


        The
Company further covenants that, if at any time the Common Stock shall be listed on the Nasdaq National Market or any other national securities exchange or automated quotation system,
the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation
system, all Common Stock issuable upon conversion of the Notes; provided that if the rules of such exchange or automated quotation system permit the
Company to defer the listing of such Common Stock until the first conversion of the Notes into Common Stock in accordance with the provisions of this Indenture, the Company covenants to list such
Common Stock issuable upon conversion of the
Notes in accordance with the requirements of such exchange or automated quotation system at such time. 



        Section 14.09.    Responsibility of Trustee.    The Trustee and any other conversion agent shall not at any
time be under any duty or responsibility to any holder of Notes to determine the Conversion Rate or whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other conversion agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other conversion agent make no representations with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the
surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 14. Without limiting the
generality of the foregoing, neither the Trustee nor any conversion agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 14.06 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Noteholders upon the conversion of their
Notes after any event referred to in such Section 14.06 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officers' Certificate (which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto. 


        Section 14.10.    Notice to Holders Prior to Certain Actions.    In case: 



        (a)   the
Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Conversion Rate pursuant to
Section 14.05; or 


        (b)   the
Company shall authorize the granting to the holders of all or substantially all of its Common Stock of rights or warrants to subscribe for or purchase any share of
any class or any other rights or warrants; or 



52





 




        (c)   of
any reclassification or reorganization of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the
Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or 


        (d)   of
the voluntary or involuntary dissolution, liquidation or winding up of the Company; 




the
Company shall cause to be filed with the Trustee and to be mailed to each holder of Notes at his address appearing on the Note register provided for in Section 2.05 of this Indenture, as
promptly as possible but in any event at least ten (10) days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become
effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of
such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up. 


        Section 14.11.    Rights Issued in Respect of Common Stock Issued Upon Conversions.    Each share of Common
Stock issued upon conversion of Securities pursuant to this Article 14 shall be entitled to receive the appropriate number of common stock or preferred stock purchase rights, as the case may be
(the "Rights"), if any, that shares of Common Stock are entitled to receive and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by the terms of any shareholder rights agreement adopted by the Company, as the same may be amended from time to time (in
each case, a "Rights Agreement"). Provided that such Rights Agreement requires that each share of Common Stock issued upon conversion of Securities at
any time prior to the distribution of separate certificates representing the Rights be entitled to receive such Rights, then, notwithstanding anything else to the contrary in this Article 14,
there shall not be any adjustment to the conversion privilege as a result of the issuance of Rights, but an adjustment to the conversion rate shall be made pursuant to Section 14.05(d) upon the
separation of the Rights from the Common Stock. 


 
 

ARTICLE 15
  
  MISCELLANEOUS PROVISIONS    



        Section 15.01.    Provisions Binding on Company's Successors.    All the covenants, stipulations, promises and
agreements by the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not. 



        Section 15.02.    Official Acts by Successor Corporation.    Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee
or officer of any Person that shall at the time be the lawful sole successor of the Company. 


53









   
        Section 15.03.    Addresses for Notices, Etc.    Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders of Notes on the Company shall be deemed to have been sufficiently given or made, for all purposes, if given or served by
being deposited postage prepaid by registered or certified mail in a post office letter box or sent by telecopier transmission addressed as follows: to Nextel Partners, Inc., 4500 Carillon
Point, Kirkland, Washington 98033, Telecopier No.: (425) 576-3650, Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited, postage prepaid, by registered or certified mail in a post office letter box or sent by
telecopier transmission addressed as follows: The Bank of New York, 101 Barclay Street, New York, New York 10286, Telecopier No.: (212) 815-5707, Attention: Corporate Trust
Administration. 


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



        Any
notice or communication mailed to a Noteholder shall be mailed to him by first class mail, postage prepaid, at his address as it appears on the Note register and shall be
sufficiently given to him if so mailed within the time prescribed. 


        Failure
to mail a notice or communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders. If a notice or communication is mailed
in the manner provided above, it is duly given, whether or not the addressee receives it. 


        Section 15.04.    Governing Law.    This Indenture and each Note shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof. 


        Section 15.05.    Evidence of Compliance with Conditions Precedent, Certificates to Trustee.    Upon any
application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with. 


        Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate or opinion is based; (3) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with. 



        Section 15.06.    Legal Holidays.    In any case in which the date of maturity of interest on or principal of
the Notes or the redemption date of any Note will not be a Business Day, then payment of such interest on or principal of the Notes need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of maturity or the redemption date, and no interest shall accrue for the period from and after such date. 


        Section 15.07.    Trust Indenture Act.    This Indenture is hereby made subject to, and shall be governed by,
the provisions of the Trust Indenture Act required to be part of and to govern indentures qualified under the Trust Indenture Act; provided that unless
otherwise required by law, notwithstanding the foregoing, this Indenture and the Notes issued hereunder shall not be subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of
Section 314 of the Trust Indenture Act as now 


54





 



in
effect or as hereafter amended or modified; provided further that this Section 15.07 shall not require this Indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is in fact required under the terms of the Trust Indenture Act, nor shall it constitute any admission or acknowledgment by
any party to the Indenture that any such qualification is required prior to the time such qualification is in fact required under the terms of the Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be included in an indenture qualified under the Trust Indenture Act, such required provision shall control. 


        Section 15.08.    No Security Interest Created.    Nothing in this Indenture or in the Notes, expressed or
implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction in which property
of the Company or its subsidiaries is located. 


        Section 15.09.    Benefits of Indenture.    Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any paying agent, any authenticating agent, any Note registrar and their successors hereunder and the holders of Notes any benefit or any legal
or equitable right, remedy or claim under this Indenture. 



        Section 15.10.    Table of Contents, Headings, Etc.    The table of contents and the titles and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof. 


        Section 15.11.    Authenticating Agent.    The Trustee may appoint an authenticating agent that shall be
authorized to act on its behalf, and subject to its direction, in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes
hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 3.03 and 3.05, as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and
those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and
delivery of such Notes "by the Trustee" and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the
Notes for the Trustee's certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.09. 



        Any
corporation into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or
conversion to which any authenticating agent shall be a party, or any corporation succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating
agent hereunder, if such successor corporation is otherwise eligible under this Section 15.11, without the execution or filing of any paper or any further act on the part of the parties hereto
or the authenticating agent or such successor corporation. 


        Any
authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any
authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any
time any authenticating agent shall cease to be eligible under this Section, the Trustee shall either promptly appoint a successor authenticating agent or itself assume the duties and obligations of
the former authenticating agent under this Indenture and, upon such appointment of a successor authenticating agent, if made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of a successor authenticating agent to all holders of Notes as the names and addresses of such holders appear on the Note
register. 


55





 



        The
Company agrees to pay to the authenticating agent from time to time such reasonable compensation for its services as shall be agreed upon in writing between the Company and the
authenticating agent. 


        The
provisions of Sections 7.02, 7.03, 7.04 and 8.03 and this Section 15.11 shall be applicable to any authenticating agent. 



        Section 15.12.    Execution in Counterparts.    This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. 


        Section 15.13.    Severability.    In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 



        The
Bank of New York hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions herein above set forth. 


56










        IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed. 



	 	 	NEXTEL PARTNERS, INC.
	

 	
 	

By:	
 	

/s/  DONALD J. MANNING      
 Name:    Donald J. Manning

Title:      Vice President
	

 	
 	
THE BANK OF NEW YORK, as Trustee
	

 	
 	

By:	
 	

/s/  MICHAEL PITFICK      
 Name:    Michael Pitfick

Title:      Assistant Vice President









 
 

ANNEX 1
  
  Projected Payment Schedule    
    



	Semiannual Period

Ending
	 	Total Payments

	November 15, 2003	 	$	1,137,500.00
	May 15, 2004	 	$	1,125,000.00
	November 15, 2004	 	$	1,125,000.00
	May 15, 2005	 	$	1,125,000.00
	November 15, 2005	 	$	1,125,000.00
	May 15, 2006	 	$	1,125,000.00
	November 15, 2006	 	$	1,125,000.00
	May 15, 2007	 	$	1,125,000.00
	November 15, 2007	 	$	1,125,000.00
	May 15, 2008	 	$	1,125,000.00
	November 15, 2008	 	$	1,125,000.00








  



 
 

EXHIBIT A    
    


NEXTEL PARTNERS, INC.

11/2% CONVERTIBLE SENIOR NOTE DUE 2008  


[Include
only for Global Notes:] 


[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE "DEPOSITARY", WHICH TERM INCLUDES ANY
SUCCESSOR DEPOSITARY FOR THE CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.] 


[Include
only for Notes that are Restricted Securities:] 


[THE
NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT (A) TO NEXTEL PARTNERS, INC. OR ANY SUBSIDIARY THEREOF,
(B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER);
(3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D) ABOVE), IT WILL FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE (2)(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION). THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.] 


A-1








   NEXTEL PARTNERS, INC.



11/2% CONVERTIBLE SENIOR NOTE DUE 2008  



	 	 	CUSIP:  [    ]
	

No. 1	
 	

$                  





        Nextel
Partners, Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received hereby promises to
pay to CEDE & CO. or its registered assigns, [the principal sum of                        DOLLARS] [the principal sum set
forth on Schedule I
hereto]1 on May 15, 2008 at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of
the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually on May 15 and November 15 of
each year, commencing November 15, 2003, on said principal sum at said office or agency, in like coin or currency, at the rate per annum of 11/2%, from the May 15 or
November 15, as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or
duly provided for, in which case from the date of this Note, or unless no interest has been paid or duly provided for on the Notes, in which case from May 13, 2003 until payment of said
principal sum has been made or duly provided for. Notwithstanding the foregoing, if the date hereof is after any May 1 or November 1, as the case may be, and before the following
May 15 or November 15, this Note shall bear interest from such May 15 or November 15. Except as otherwise provided in the Indenture, the interest payable on the Note
pursuant to the Indenture on any May 15 or November 15 will be paid to the Person entitled thereto as it appears in the Note register at the close of business on the record date, which
shall be the May 1 or November 1 (whether or not a Business Day) next preceding such May 15 or November 15, as provided in the
Indenture; provided that any such interest not punctually paid or duly provided for shall be payable as provided in the Indenture. The Company shall pay
interest (i) on any Notes in certificated form by check mailed to the address of the Person entitled thereto as it appears in the Note register or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its nominee. 


        The
Company promises to pay interest at the rate of 21/2% per annum on overdue principal, premium, if any, and (to the extent that payment of such interest is enforceable
under applicable law) interest on the Notes. 


        Reference
is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the holder of this Note the right to convert
this Note into Common Stock of the Company on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place. 


        This
Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of the State
of New York, without regard to conflicts of laws principles thereof. 


        This
Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture. 




	1
	For
Global Notes only. 


A-2







   
        IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. 



	 	 	 	NEXTEL PARTNERS, INC.
	

 	

 	
 	

By:	

 
	 	 	 	 	

	

 	

 	
 	

By:	

 
	 	 	 	 	

	

TRUSTEE'S CERTIFICATE OF AUTHENTICATION	
 	

 	

 
	

This is one of the Notes described in the within-named Indenture.	

 
	

Dated:	
 	

 	

 
	
THE BANK OF NEW YORK, as Trustee	
 	

 	

 
	

By:	

 	
 	

 	

 
	 	
 Authorized Signatory	 	 	 
	

, or	
 	

 	

 
	

By:	

 	
 	

 	

 
	 	
 As Authenticating Agent

(if different from Trustee)	 	 	 
	By:	 	 	 	 
	 	
 Authorized Signatory	 	 	 




A-3






   FORM OF REVERSE OF NOTE



NEXTEL PARTNERS, INC.



11/2% CONVERTIBLE SENIOR NOTE 2008  


        This Note is one of a duly authorized issue of Notes of the Company, designated as its 11/2% Convertible Senior Notes Due 2008 (herein called the
"Notes"), limited in aggregate principal amount to $150,000,000 (or in the event that the Initial Purchasers exercise their option under the Note
Purchase Agreement to purchase additional Notes, to an aggregate principal amount not to exceed $175,000,000) issued and to be issued under and pursuant to an Indenture dated as of May 13, 2003
(herein called the "Indenture"), between the Company and The Bank of New York, as trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Notes. 


        In
case an Event of Default shall have occurred and be continuing, the principal of, premium, if any, and accrued interest on all Notes may be declared by either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture. 


        The
Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of at least a majority in aggregate principal amount of the Notes at the time
outstanding, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the holders of the Notes; provided that no such supplemental indenture shall (i) extend the fixed maturity of any
Note, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof or premium, if any, thereon, or reduce any amount payable upon redemption thereof, or
impair the right of any Noteholder to institute suit for the payment thereof, or make the principal thereof or interest or premium, if any, thereon payable in any coin or currency other than that
provided in the Notes, or change the obligation of the Company to redeem any Note upon the happening of a Fundamental Change in a manner adverse to the holder of the Notes, or impair the right to
convert the Notes into Common Stock subject to the terms set forth in the Indenture, including Section 14.06 thereof, or modify any of the provisions of Section 10.02 or
Section 6.07 thereof, except to increase any such percentage or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each
Note so affected, or change any obligation of the Company to maintain an office or agency in the places and for the purposes set forth in Section 4.01 thereof, or reduce the quorum or voting
requirements set forth in Article 9 or (ii) reduce the aforesaid percentage of Notes, the holders of which are required to consent to any such supplemental indenture, without the consent
of the holders of all Notes then outstanding. Subject to the provisions of the Indenture, the holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of
the holders of all of the Notes waive any past default or Event of Default under the Indenture and its consequences except (A) a default in the payment of interest, or any premium on, or the
principal of, any of the Notes, (B) a failure by the Company to convert any Notes into Common Stock of the Company, (C) a default in the payment of the redemption price pursuant to
Article 3 of the Indenture, or (D) a default in respect of a covenant or provisions of the Indenture which under Article 10 of the Indenture cannot be modified or amended without
the consent of the holders of each or all Notes then outstanding or affected thereby. Any such consent or waiver by the holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners of this Note and any 


A-4





 



Notes
which may be issued in exchange or substitution hereof, irrespective of whether or not any notation thereof is made upon this Note or such other Notes. 



        No
reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest, on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed. 


        Interest
on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months. 


        The
Notes are issuable in fully registered form, without coupons, in denominations of $1,000 principal amount and any integral multiple of $1,000. At the office or agency of the Company
referred to on the
face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment of any service charge but with payment of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in connection with any registration or exchange of Notes, Notes may be exchanged for a like aggregate principal amount of Notes of any other authorized
denominations. 


        Except
upon the occurrence of a Fundamental Change, the Company may not redeem any Notes prior to maturity. The Notes are not subject to redemption through the operation of any sinking
fund. 


        If
a Fundamental Change occurs at any time prior to maturity of the Notes, this Note will be redeemable on a Fundamental Change Redemption Date, 30 days after notice thereof, at
the option of the holder of this Note at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to (but excluding) the redemption date;  provided that if such
Fundamental Change Redemption Date is a May 15 or November 15, the interest payable on such date shall be paid to
the holder of record of this Note on the preceding May 1 or November 1, respectively. The Notes will be redeemable in integral multiples of $1,000 principal amount. The Company shall
mail to all holders of record of the Notes a notice of the occurrence of a Fundamental Change and of the redemption right arising as a result thereof on or before the 10th day after the occurrence of
such Fundamental Change. For a Note to be so redeemed at the option of the holder, the Company must receive at the office or agency of the Company maintained for that purpose in accordance with the
terms of the Indenture, such Note with the form entitled "Option to Elect Repayment upon a Fundamental Change" on the reverse thereof duly completed,
together with such Note, duly endorsed for transfer, on or before the 30th day after the date of such notice of a Fundamental Change (or if such 30th day is not a Business Day, the immediately
succeeding Business Day). 


        Subject
to and in compliance with the provisions of the Indenture, at any time prior to 5:00 p.m. (New York City time) on the final maturity date of the Notes, the holder hereof
has the right, at its option, to convert each $1,000 principal amount of the Notes into 131.9087 shares of the Company's Common Stock, as such shares shall be constituted at the date of conversion and
subject to adjustment from time to time as provided in the Indenture, upon surrender of this Note with the form entitled "Conversion Notice" on the
reverse thereof duly completed, to the Company at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, or at the option of such holder, the
Corporate Trust Office, and, unless the shares issuable on conversion are to be issued in the same name as this Note, duly endorsed by, or accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the holder or by his duly authorized attorney. 


        No
adjustment in respect of interest on any Note converted or dividends on any shares issued upon conversion of such Note will be made upon any conversion except as set forth in the next
sentence. If this Note (or portion hereof) is surrendered for conversion during the period from the close of business on any record date for the payment of interest to the close of business on the
Business Day preceding the following interest payment date, this Note (or portion hereof being converted) must be accompanied by payment, in immediately available funds or other funds acceptable 


A-5





 



to
the Company, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted; provided
that no such payment shall be required if there shall exist at the time of conversion a default in the payment of interest on the Notes. 


        No
fractional shares will be issued upon any conversion, but an adjustment and payment in cash will be made, as provided in the Indenture, in respect of any fraction of a share which
would otherwise be issuable upon the surrender of any Note or Notes for conversion. 


        A
Note in respect of which a holder is exercising its right to require redemption upon a Fundamental Change may be converted only if such holder withdraws its election to exercise such
right in accordance with the terms of the Indenture. 


        Upon
due presentment for registration of transfer of this Note at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, a new
Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessment or other governmental charge imposed in connection therewith. 


        The
Company, the Trustee, any authenticating agent, any paying agent, any conversion agent and any Note registrar may deem and treat the registered holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon made by anyone other than the Company or any Note registrar) for the purpose
of receiving payment hereof, or on account hereof, for the conversion hereof and for all other purposes, and neither the Company nor the Trustee nor any other authenticating agent nor any paying agent
nor other conversion agent nor any Note registrar shall be affected by any notice to the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or
sums paid, satisfy and discharge liability for monies payable on this Note. 


        No
recourse for the payment of the principal of or any premium or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such, past, present or
future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. 



        This
Note shall be deemed to be a contract made under the laws of New York, and for all purposes shall be construed in accordance with the laws of New York, without regard to conflicts
of laws principles thereof. 


        Terms
used in this Note and defined in the Indenture are used herein as therein defined. 


A-6








   ABBREVIATIONS  


        The
following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or
regulations. 



	TEN COM—	as tenants in common	 	UNIF GIFT MIN ACT-             Custodian             
	TEN ENT—	as tenant by the entireties	 	(Cust) (Minor)
	JT TEN—	as joint tenants with right of survivorship and not as tenants in common	 	under Uniform Gifts to Minors Act



                                         
       

(State)




Additional
abbreviations may also be used though not in the above list. 


A-7






   CONVERSION NOTICE  


	TO:
	NEXTEL
PARTNERS, INC.

THE BANK OF NEW YORK 



        The
undersigned registered owner of this Note hereby irrevocably exercises the option to convert this Note, or the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of Nextel Partners, Inc. in accordance with the terms of the Indenture referred to in this Note, and directs that the shares issuable and deliverable
upon such conversion, together with any check in payment for fractional shares and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered holder
hereof unless a different name has been indicated below. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. If shares or any portion of this
Note not converted are to be issued in the name of a person other than the undersigned, the undersigned will provide the appropriate information below and pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of interest, accompanies this Note. 



	Dated:	 	 	 	 
	 	 	
	 	 
	

 	
 	

 	
 	


	

 	
 	

 	
 	

 Signature(s)
	

 	
 	

 	
 	

Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Note registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Note registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
	

 	
 	

 	
 	

 Signature Guarantee
	

Fill in the registration of shares of Common Stock if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:
	

 (Name)	
 	

 
	

 (Street Address)	
 	

 
	

 (City, State and Zip Code)	
 	

 
	

 Please print name and address	
 	

 
	 	 	 	 	 



A-8





 

	

Principal amount to be converted

(if less than all):	
 	

 
	

$	
 	

 
	
	 	 
	

Social Security or Other Taxpayer

Identification Number:	
 	

 
	

	
 	

 




A-9






   OPTION TO ELECT REDEMPTION

UPON A FUNDAMENTAL CHANGE  


	TO:
	NEXTEL
PARTNERS, INC.

THE BANK OF NEW YORK 



        The
undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a notice from Nextel Partners, Inc. (the
"Company") as to the occurrence of a Fundamental Change with respect to the Company and requests and instructs the Company to redeem the entire
principal amount of this Note, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Note at the
price of 100% of such entire principal amount or portion thereof, together with accrued interest to, but excluding, the Fundamental Change Redemption Date, to the registered holder hereof. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. 



	Dated:	 	 	 	 
	 	 	
	 	 
	

 	
 	

 	
 	


	

 	
 	

 	
 	

 Signature(s)
	

 	
 	

 	
 	

NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
	

 	
 	

 	
 	

Principal amount to be repaid (if less than all):
	

 	
 	

 	
 	


	

 	
 	

 	
 	

 Social Security or Other Taxpayer Identification Number
	 	 	 	 	 



A-10











   ASSIGNMENT  


        For value received                          hereby sell(s)
assign(s) and transfer(s) unto                          (Please
insert social security or other Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints
                         attorney to
transfer said Note on the books of the Company, with full power of substitution in the premises. 


        In
connection with any transfer of the Note prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision) (other than any transfer pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Note is being transferred: 



	o
	To
Nextel Partners, Inc. or a subsidiary thereof; or



	o
	To
a "qualified institutional buyer" in compliance with Rule 144A under the
Securities Act of 1933, as amended; or



	o
	Pursuant
to and in compliance with Rule 144 under the Securities Act of 1933, as amended; or



	o
	Pursuant
to a Registration Statement which has been declared effective under the Securities Act of 1933, as amended, and which continues to
be effective at the time of transfer; 






and
unless the Note has been transferred to Nextel Partners, Inc. or a subsidiary thereof, the undersigned confirms that such Note is not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended. 


        Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof. 



	Dated:	 	 	 	 
	 	 	
	 	 
	

 	
 	

 	
 	


	

 	
 	

 	
 	

 Signature(s)
	

 	
 	

 	
 	

Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Note registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Note registrar in addition to, or in substitution
for, STAMP, al in accordance with the Securities Exchange Act of 1934, as amended.
	

 	
 	

 	
 	

 Signature Guarantee





NOTICE:
The signature on the Conversion Notice, the Option to Elect Redemption upon a Fundamental Change or the Assignment must correspond with the name as written upon the face of the Note in every
particular without alteration or enlargement or any change whatever. 


A-11








  



 
 

Schedule I    
    


[Include
Schedule I only for a Global Note] 


NEXTEL PARTNERS, INC.

11/2% Convertible Senior Note Due 2008  


No.
             



	Date
 
	 	Principal Amount
	 	Notation Explaining Principal

Amount Recorded
	 	Authorized Signature

of Trustee or

Custodian





A-12









QuickLinks



Exhibit 4.3



TABLE OF CONTENTS


ARTICLE 1 DEFINITIONS


ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES


ARTICLE 3 REDEMPTION OF NOTES

ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY

ARTICLE 5 NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

ARTICLE 6 REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT



ARTICLE 7 THE TRUSTEE


ARTICLE 8 THE NOTEHOLDERS

ARTICLE 9 MEETINGS OF NOTEHOLDERS

ARTICLE 10 SUPPLEMENTAL INDENTURES

ARTICLE 11 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

ARTICLE 12 SATISFACTION AND DISCHARGE OF INDENTURE


ARTICLE 13 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

ARTICLE 14 CONVERSION OF NOTES

ARTICLE 15 MISCELLANEOUS PROVISIONS



ANNEX 1 Projected Payment Schedule



EXHIBIT A




Schedule I