Exhibit 4.2


 




 


 





ICO NORTH AMERICA, INC.


 


7.5% CONVERTIBLE SENIOR SECURED
NOTES DUE 2009


 






 


INDENTURE


 


Dated as of August 15,
2005


 






 






 


The Bank of New York,


 


a New York banking corporation, as


 


Trustee


 








 


 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  8.10

  
	
  (a)(2)

  	
   

  	
  8.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  8.10

  
	
  (b)

  	
   

  	
  8.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  8.11

  
	
  (b)

  	
   

  	
  8.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  14.03

  
	
  (c)

  	
   

  	
  14.03

  
	
  313(a)

  	
   

  	
  8.06

  
	
  (b)(1)

  	
   

  	
  11.03

  
	
  (b)(2)

  	
   

  	
  8.07; 11.03

  
	
  (c)

  	
   

  	
  8.06; 14.02

  
	
  (d)

  	
   

  	
  8.06

  
	
  314(a)

  	
   

  	
  5.03; 14.02

  
	
  (b)

  	
   

  	
  11.02

  
	
  (c)(1)

  	
   

  	
  14.04

  
	
  (c)(2)

  	
   

  	
  14.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  11.03, 11.04, 11.05

  
	
  (e)

  	
   

  	
  14.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  8.01

  
	
  (b)

  	
   

  	
  8.05, 14.02

  
	
  (c)

  	
   

  	
  8.01

  
	
  (d)

  	
   

  	
  8.01

  
	
  (e)

  	
   

  	
  7.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  7.05

  
	
  (a)(1)(B)

  	
   

  	
  7.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  7.07

  
	
  (c)

  	
   

  	
  2.12

  
	
  317(a)(1)

  	
   

  	
  7.08

  
	
  (a)(2)

  	
   

  	
  7.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  14.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  14.01

  



 






N.A.
means not applicable.


*  This Cross Reference Table is not part of
the Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1.

  
	
  DEFINITIONS AND INCORPORATION

  
	
  BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  14

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  15

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  16

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  16

  
	
  Section 2.03.

  	
  Registrar, Paying Agent and Conversion Agent

  	
  16

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  17

  
	
  Section 2.05.

  	
  Holder Lists

  	
  17

  
	
  Section 2.06.

  	
  Transfer and Exchange

  	
  17

  
	
  Section 2.07.

  	
  Replacement Notes

  	
  19

  
	
  Section 2.08.

  	
  Outstanding Notes

  	
  19

  
	
  Section 2.09.

  	
  Treasury Notes

  	
  20

  
	
  Section 2.10.

  	
  Temporary Notes

  	
  20

  
	
  Section 2.11.

  	
  Cancellation

  	
  20

  
	
  Section 2.12.

  	
  Defaulted Interest

  	
  20

  
	
  Section 2.13.

  	
  Legend; Additional Transfer and Exchange Requirements

  	
  21

  
	
  Section 2.14.

  	
  CUSIP Numbers

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Redemption

  	
  22

  
	
  Section 3.02.

  	
  Offer to Purchase by Application of Excess Proceeds

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  
	
  CONVERSION

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Conversion Privilege

  	
  24

  
	
  Section 4.02.

  	
  Conversion Procedure

  	
  27

  
	
  Section 4.03.

  	
  Intentionally Omitted

  	
  27

  
	
  Section 4.04.

  	
  Taxes on Conversion

  	
  27

  
	
  Section 4.05.

  	
  Company to Provide Stock

  	
  28

  
	
  Section 4.06.

  	
  Adjustment of Conversion Price

  	
  28

  
	
  Section 4.07.

  	
  No Adjustment

  	
  35

  
	
  Section 4.08.

  	
  Adjustment for Tax Purposes

  	
  35

  
	
  Section 4.09.

  	
  Notice of Conversion Price Adjustment

  	
  35

  
	
  Section 4.10.

  	
  Notice of Certain Transactions

  	
  36

  
	
  Section 4.11.

  	
  Effect of Reclassification, Consolidation, Merger or Sale
  on Conversion Privilege

  	
  36

  
	
  Section 4.12.

  	
  Trustee’s Disclaimer

  	
  37

  



 


i

















 


	
  ARTICLE 5.

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Payment of Notes

  	
  37

  
	
  Section 5.02.

  	
  Maintenance of Office or Agency

  	
  38

  
	
  Section 5.03.

  	
  Reports

  	
  38

  
	
  Section 5.04.

  	
  Compliance Certificate

  	
  40

  
	
  Section 5.05.

  	
  Taxes

  	
  40

  
	
  Section 5.06.

  	
  Stay, Extension and Usury Laws

  	
  41

  
	
  Section 5.07.

  	
  Restricted Payments

  	
  41

  
	
  Section 5.08.

  	
  Dividend and Other Payment Restrictions Affecting
  Subsidiaries

  	
  42

  
	
  Section 5.09.

  	
  Incurrence of Indebtedness and Issuance of Preferred Stock

  	
  42

  
	
  Section 5.10.

  	
  Asset Sales and Events of Loss

  	
  46

  
	
  Section 5.11.

  	
  Transactions with Affiliates

  	
  49

  
	
  Section 5.12.

  	
  Liens

  	
  50

  
	
  Section 5.13.

  	
  Line of Business

  	
  50

  
	
  Section 5.14.

  	
  Corporate Existence

  	
  51

  
	
  Section 5.15.

  	
  Offer to Repurchase Upon Change of Control

  	
  51

  
	
  Section 5.16.

  	
  Qualifying Event

  	
  52

  
	
  Section 5.17.

  	
  Maintenance of Insurance

  	
  52

  
	
  Section 5.18.

  	
  Payments for Consent

  	
  53

  
	
  Section 5.19.

  	
  Additional Note Guarantees

  	
  53

  
	
  Section 5.20.

  	
  Additional Interest

  	
  53

  
	
  Section 5.21.

  	
  Right of First Offer on Sale of Equity Interests

  	
  53

  
	
  Section 5.22.

  	
  Appointment of
  Director

  	
  56

  
	
  Section 5.23.

  	
  Issuance or Sale of Subsidiary Stock

  	
  56

  
	
  Section 5.24.

  	
  Issuance of Class B Common Stock

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Merger, Consolidation, or Sale of Assets

  	
  56

  
	
  Section 6.02.

  	
  Successor Corporation Substituted

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  
	
  DEFAULTS AND
  REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Events of Default

  	
  58

  
	
  Section 7.02.

  	
  Acceleration

  	
  60

  
	
  Section 7.03.

  	
  Other Remedies

  	
  60

  
	
  Section 7.04.

  	
  Waiver of Past Defaults

  	
  60

  
	
  Section 7.05.

  	
  Control by Majority

  	
  61

  
	
  Section 7.06.

  	
  Limitation on Suits

  	
  61

  
	
  Section 7.07.

  	
  Rights of Holders of Notes to Receive Payment

  	
  61

  
	
  Section 7.08.

  	
  Collection Suit by Trustee

  	
  62

  
	
  Section 7.09.

  	
  Trustee May File Proofs of Claim

  	
  62

  
	
  Section 7.10.

  	
  Priorities

  	
  62

  
	
  Section 7.11.

  	
  Undertaking for Costs

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Duties of Trustee

  	
  63

  
	
  Section 8.02.

  	
  Rights of Trustee

  	
  64

  



 


ii

















 


	
  Section 8.03.

  	
  Individual Rights of Trustee

  	
  65

  
	
  Section 8.04.

  	
  Trustee’s Disclaimer

  	
  65

  
	
  Section 8.05.

  	
  Notice of Defaults

  	
  65

  
	
  Section 8.06.

  	
  Reports by Trustee to Holders of the Notes

  	
  66

  
	
  Section 8.07.

  	
  Compensation and Indemnity

  	
  66

  
	
  Section 8.08.

  	
  Replacement of Trustee

  	
  67

  
	
  Section 8.09.

  	
  Successor Trustee by Merger, etc.

  	
  68

  
	
  Section 8.10.

  	
  Eligibility; Disqualification

  	
  68

  
	
  Section 8.11.

  	
  Preferential Collection of Claims Against Company

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  
	
  LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
  68

  
	
  Section 9.02.

  	
  Legal Defeasance and Discharge

  	
  68

  
	
  Section 9.03.

  	
  Covenant Defeasance

  	
  69

  
	
  Section 9.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  70

  
	
  Section 9.05.

  	
  Deposited Money and Government Securities to be Held in
  Trust; Other Miscellaneous Provisions

  	
  71

  
	
  Section 9.06.

  	
  Repayment to Company

  	
  71

  
	
  Section 9.07.

  	
  Reinstatement

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.

  
	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Without Consent of Holders of Notes

  	
  72

  
	
  Section 10.02.

  	
  With Consent of Holders of Notes

  	
  73

  
	
  Section 10.03.

  	
  Compliance with Trust Indenture Act

  	
  75

  
	
  Section 10.04.

  	
  Revocation and Effect of Consents

  	
  75

  
	
  Section 10.05.

  	
  Notation on or Exchange of Notes

  	
  75

  
	
  Section 10.06.

  	
  Trustee to Sign Amendments, etc.

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  
	
  COLLATERAL AND
  SECURITY

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Collateral Documents

  	
  76

  
	
  Section 11.02.

  	
  Recording and Opinions

  	
  76

  
	
  Section 11.03.

  	
  Release of Collateral

  	
  77

  
	
  Section 11.04.

  	
  Certificates of the Company

  	
  78

  
	
  Section 11.05.

  	
  Certificates of the Trustee

  	
  78

  
	
  Section 11.06.

  	
  Authorization of Actions to Be Taken by the Trustee Under
  the Collateral Documents

  	
  78

  
	
  Section 11.07.

  	
  Authorization of Receipt of Funds by the Trustee Under the
  Pledge Agreement

  	
  79

  
	
  Section 11.08.

  	
  Termination of Security Interest

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.

  
	
  NOTE GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Guarantee

  	
  79

  
	
  Section 12.02.

  	
  Limitation on Guarantor Liability

  	
  80

  
	
  Section 12.03.

  	
  Continuing Guarantee

  	
  80

  
	
  Section 12.04.

  	
  Releases Following Sale of Assets

  	
  81

  



 


iii

















 


	
  ARTICLE 13.

  
	
  SATISFACTION
  AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Satisfaction and Discharge

  	
  81

  
	
  Section 13.02.

  	
  Application of Trust Money

  	
  82

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14.

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Trust Indenture Act Controls

  	
  83

  
	
  Section 14.02.

  	
  Notices

  	
  83

  
	
  Section 14.03.

  	
  Communication by Holders of Notes with Other Holders of
  Notes

  	
  84

  
	
  Section 14.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  84

  
	
  Section 14.05.

  	
  Statements Required in Certificate or Opinion

  	
  84

  
	
  Section 14.06.

  	
  Rules by Trustee and Agents

  	
  85

  
	
  Section 14.07.

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
  85

  
	
  Section 14.08.

  	
  Governing Law

  	
  85

  
	
  Section 14.09.

  	
  No Adverse Interpretation of Other Agreements

  	
  85

  
	
  Section 14.10.

  	
  Successors

  	
  85

  
	
  Section 14.11.

  	
  Severability

  	
  85

  
	
  Section 14.12.

  	
  Counterpart Originals

  	
  86

  
	
  Section 14.13.

  	
  Table of Contents, Headings, etc.

  	
  86

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  
	
  Exhibit A

  	
  FORM OF
  NOTE

  	
   

  
	
  Exhibit B

  	
  CERTIFICATE
  OF TRANSFER

  	
   

  
				



 


iv

















 


INDENTURE dated as of August 15,
2005 between ICO North America, Inc., a Delaware corporation (the “Company”), the Guarantors (as defined below) and The Bank of
New York, a New York banking corporation, as trustee (the “Trustee”).


 


The
Company, the Guarantors and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 7.5% Convertible
Senior Secured Notes due 2009 (such notes, including the Initial Notes and any
Additional Notes (each, as defined below) the “Notes”):


 


ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01.                         Definitions.


 


“Acquired
Debt” means, with respect to any specified Person, (i) Indebtedness of
any other Person existing at the time such other Person is merged with or into
or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified Person
and (ii) Indebtedness secured by a Lien encumbering any assets acquired by
such specified Person.


 


“Additional
Interest” means all liquidated damages then owing pursuant to
Section 2.1(e) of the Registration Rights Agreement and all other
interest owing on the Notes pursuant to this Indenture, including, but not
limited to, pursuant to Sections 2.12, 5.03 and 5.16 of this Indenture and
paragraph “1. Interest” of the Form of Note attached as Exhibit A
hereto (the “Form of Note”). References
in this Indenture and in the Notes to the “interest” accrued or payable on the
Notes shall be deemed to include any Additional Interest that may become accrued
or payable thereon pursuant to the terms of this Indenture, the Notes and the
Registration Rights Agreement unless the context otherwise requires.


 


“Additional
Notes” means the aggregate principal amount of Notes (other than the Initial
Notes) issued under this Indenture in lieu of interest payment on the Initial
Notes as permitted by Section 5.09 hereof, and paragraph “1. Interest” in
the Form of Note, as part of the same series as the Initial
Notes.


 


“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 purposes of this Indenture, “control” (including, with correlative
meanings, the terms “controlling”, “controlled by” and “under common control
with”), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided, that,
solely for the purposes of this definition of “Affiliate,” beneficial ownership
of 10% or more of the Voting Stock of a Person shall be deemed to be control. Notwithstanding
the foregoing, no Holder shall be deemed to be an Affiliate of the Company or
any of its Subsidiaries solely by reason of holding the Notes, and no Holder
shall be deemed to be an Affiliate of the Company or to “control” the Company
by


 


1

















 


reason of having the power to participate in the appointment of a member
of the Company’s Board of Directors pursuant to Section 5.22 of this
Indenture.


 


“After-Acquired
Property” shall mean all assets and property, including to
the extent permitted by law, FCC Licenses, acquired by the Company or any
Guarantor after the date of this Indenture.


 


“Agent” means any
Registrar, Paying Agent, Conversion Agent or co-registrar.


 


“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.


 


“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial ownership of
any particular “person” (as that term is used in Section 13(d)(3) of
the Exchange Act), such “person” will be deemed to have beneficial ownership of
all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. For purposes of this definition, “Beneficially
Owns” and “Beneficially Owned” shall have a correlative meaning.


 


“Board
of Directors” means (i) with respect to a corporation, the
board of directors of the corporation or any committee thereof duly authorized
to act on behalf of such board; (ii) with respect to a partnership, the
Board of Directors of the general partner of the partnership; (iii) with
respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and (iv) with respect
to any other Person, the board or committee of such Person serving a similar
function.


 


“Business
Day” means any day other than a Legal Holiday.


 


“Capital
Lease Obligation” means, at the time any determination thereof is to
be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet prepared in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be prepaid by the lessee without
payment of a penalty.


 


“Capital
Stock” means (i) in the case of a corporation, corporate stock; (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; and
(iv) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.


 


“Cash
Equivalents” means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided, that the full faith and credit of the United
States is 


 


2

















 


pledged in support of those securities) having maturities of not more
than six months from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500,000,000 and a Thompson Bank
Watch Rating of “B” or better, (iv) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above,
(v) commercial paper having the highest rating obtainable from either
Moody’s or Standard & Poor’s, in each case, maturing within six months
after the date of acquisition, (vi) AAA-rated taxable securities having
maturities of not more than six months including, but not limited to, auction
rate securities and variable rate demand notes (for securities where the
interest rate resets via a “dutch auction” or “put” mechanism, the auction date
or put date will be used to determine the maturity date), (vii) U.S.
corporate bonds or notes with maturities of not more than six months and having
a minimum long-term credit rating of “A2” by Moody’s and “A” by Standard &
Poor’s, and (viii) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (i) through (vii) of
this definition.


 


“Change
of Control” means the occurrence of any of the following:


 


(i) the
direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of
related transactions, of all or substantially all of the properties or assets
of the Company and its Subsidiaries taken as a whole to any “person” (as that
term is used in Section 13(d) of the Exchange Act) other than a
Permitted Holder, other than any such transaction that constitutes an Asset
Sale pursuant to clause (ii) of the definition thereof;


 


(ii) the
adoption of a plan relating to the liquidation or dissolution of the Company;


 


(iii) the
consummation of the first transaction (including, without limitation, any
merger or consolidation) the result of which is that any “Person” (as defined
above) other than a Permitted Holder becomes the Beneficial Owner, directly or
indirectly, of more of the Voting Stock of Parent (measured by voting power
rather than number of shares) than is at the time Beneficially Owned by the
Permitted Holders in the aggregate;


 


(iv) prior
to the consummation of an initial public offering of the Company’s Class A
Common Stock, the consummation of the first transaction (including, without
limitation, any merger or consolidation) the result of which is that Parent and
the Permitted Holders cease to own, directly or indirectly, an aggregate of at
least 50.1% of the Voting Stock of the Company (measured by voting power rather
than number of shares); and


 


(v) following
the consummation of an initial public offering of the Company’s Class A
Common Stock, the consummation of the first transaction (including, without
limitation, any merger or consolidation) the result of which is that any 


 


3

















 


Person
other than a Permitted Holder becomes the Beneficial Owner, directly or
indirectly, of more of the Voting Stock of the Company (measured by voting
power rather than number of shares) than is at the time Beneficially Owned by
the Permitted Holders in the aggregate.


 


“Class A Common Stock” means the Class A Common
Stock of the Company, par value 0.0001 per share, as it exists on the date of
this Indenture and any shares of any class or classes of Capital Stock of
the Company 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 by the
Company.


 


“Class B
Common Stock” means the Class B Common Stock of the
Company, par value 0.001 per share, as it exists on the date of this Indenture
and any shares of any class or classes of Capital Stock of the Company
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 by the Company.


 


“Collateral” shall have the
same meaning as Pledged Collateral.


 


“Collateral
Agent” shall have the meaning set forth in the Collateral Trust Agreement.


 


“Collateral
Documents” means the Collateral Trust Agreement and the other
agreements, documents, or instruments, including any financing statements, and
any amendments or supplements thereto, creating, perfecting, or evidencing any
Liens securing the Notes, the Note Guarantees and any other Obligation under
this Indenture or the Collateral Documents.


 


“Collateral
Trust Agreement” means the Collateral Trust Agreement dated as of
the date of this Indenture by and among the Company, the Guarantors, the
Trustee and the Collateral Agent, as such agreement may be amended,
modified or supplemented from time to time in accordance with its terms and
with this Indenture.


 


“Common
Stock” means the Class A Common Stock and the Class B Common Stock
of the Company.


 


“Company” means ICO
North America, Inc., a Delaware corporation, and any and all successors
thereto in accordance with this Indenture.


 


“Conversion
Price” means $4.25, as of the date of this Indenture, as such amount may be
adjusted from time to time pursuant to Section 4.06.


 


“Corporate
Trust Office of the Trustee” shall be 101 Barclay
Street, Floor 8W, New York, N.Y. 10286, attention: Corporate Trust
Administration, or such other address as to which the Trustee may give
notice to the Company.


 


4

















 


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


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable, in each
case, at the option of the holder of the Capital Stock), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of
the Capital Stock have the right to require the Company to repurchase such
Capital Stock upon the occurrence of a change of control or an asset sale will
not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption complies with Section 5.07
of this Indenture. The amount of Disqualified Stock deemed to be outstanding at
any time for purposes of hereof shall be the maximum amount that the Company
and its Subsidiaries may become obligated to pay upon the maturity of, or
pursuant to any mandatory redemption provisions of, such Disqualified Stock,
exclusive of accrued dividends.


 


“Equity
Interests” means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).


 


“Escrow
Agreement” shall mean the Escrow Agreement dated as of the
date of this Indenture by and among the Company and The Bank of New York, as
escrow agent thereunder, as such agreement may be amended, modified or
supplemented from time to time, in accordance with its terms and the terms of
this Indenture.


 


“Escrowed
Interest” shall mean cash equal the amount sufficient for the
Company to fully pay the initial four interest payments on the Notes, with the
first such interest payment date being February 15, 2006, which the
Company shall have deposited into the escrow account under the Escrow Agreement
on the date of this Indenture.


 


“Event
of Loss” means any loss of, destruction of or damage to, or
any condemnation or other governmental taking of any property of the Company or
any of its Subsidiaries in any single occurrence or series of related
occurrences that involves assets having a Fair Market Value of at least $1.0
million.


 


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


 


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


 


“FCC” means the U.S. Federal Communications Commission, or
any successor entity.


 


5

















 


“FCC
License” means any license, authorization, approval, or
permit, granted by the FCC pursuant to the Communications Act of 1934, as
amended, to the Company or its Subsidiaries, whether for or in connection with
the construction and/or operation of any System, including, without limitation,
the MSS/ATC FCC License and similar authorizations.


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board and the Public Company Accounting Oversight Board or
in such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect from time
to time.


 


“Government
Securities” means securities that are direct obligations of, or
obligations guaranteed by, the United States of America, and the payment for
which the United States pledges its full faith and credit.


 


“Guarantee” means a
guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner
(including, without limitation, by way of a pledge of assets or through letters
of credit or reimbursement agreements in respect thereof), of all or any part of
any Indebtedness (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities, or services, to
take or pay or to maintain financial statement conditions or otherwise).


 


“Guarantor” means each
Subsidiary of the Company on the date of this Indenture, and each other
Subsidiary of the Company that executes a Note Guarantee in accordance with the
provisions of this Indenture, in each case, together with their respective
successors and assigns, unless and until the Note Guarantee of such Person has
been released in accordance with the provisions of this Indenture.


 


“Hedging
Obligations” means, with respect to any specified Person, the
obligations of such Person under (i) interest rate swap agreements
(whether from fixed to floating or from floating to fixed), interest rate cap
agreements and interest rate collar agreements, (ii) other agreements or
arrangements designed to manage interest rates or interest rate risk, and (iii) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange rates or commodity prices.


 


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


 


“Indebtedness” means with
respect to any specified Person, any indebtedness of such Person (excluding
accrued expenses and trade payables), whether or not contingent: (i) in
respect of borrowed money; (ii) evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement agreements in
respect thereof); (iii) in respect of banker’s acceptances; (iv) representing
Capital Lease Obligations; (v) representing the balance deferred and
unpaid of the purchase price of any property or services due more than six
months after such property is acquired or such services are completed; or (vi) representing
any Hedging Obligations; if and to the extent any of the preceding items (other
than letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of the specified Person 


 


6

















 


prepared in accordance with GAAP. In addition, the term “Indebtedness”
includes all Indebtedness of others secured by a Lien on any asset of the
specified Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.


 


“Indenture” means this
Indenture, as amended or supplemented from time to time in accordance with its
terms.


 


“Initial
Notes” means $650.0 million aggregate principal amount of Notes issued under
this Indenture on the date of this Indenture.


 


“Investments” means, with
respect to any Person, all direct or indirect investments by such Person in
other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
in such Subsidiary. The acquisition by the Company or any Subsidiary of the
Company of a Person that holds an Investment in a third Person shall be deemed
to be an Investment by the Company or such Subsidiary in such third Person.


 


“Legal
Holiday” means a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment under
this Indenture are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment under this
Indenture, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


“License
Subsidiary” shall mean any Subsidiary of the Company that holds
any FCC License.


 


“Lien” means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law (including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).


 


“Moody’s” means Moody’s Investors Services, Inc.


 


“MSS/ATC FCC License” means any earth station, space station,
service or other authorization issued by the FCC for (i) the provision of
Mobile Satellite Service, as defined by the FCC, in the 2 Ghz frequency band
over a satellite system owned by the Company or its 


 


7

















 


Subsidiaries, or (ii) the provision of an Ancillary Terrestrial
Component, as defined by the FCC, in conjunction with such Mobile Satellite
Service.


 


“Multiple” initially
means 1.40, and shall increase by 0.05 on the 90th day following the
second anniversary of the date of this Indenture, and by an additional 0.05
each 90 days thereafter, up to a maximum of 1.60.


 


“Net
Proceeds” means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale) or any Event of Loss
(including, without limitation, any insurance proceeds in respect thereof), net
of (i) the direct costs relating to such Asset Sale or Event of Loss,
including, without limitation, legal, accounting and investment banking fees,
sales commissions, relocation expenses incurred as a result of the Asset Sale
or Event of Loss, and taxes paid or payable as a result of the Asset Sale or
Event of Loss after taking into account any available tax credits or deductions
and any tax sharing arrangements, (ii) amounts required to be applied to
the repayment of Indebtedness, other than Indebtedness under the Working
Capital Facility, secured by a Lien on the asset or assets of higher priority
than the Lien securing the Notes or the Note Guarantees that were the subject
of such Asset Sale or Event of Loss, and (iii) any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.


 


 “Note Guarantee” means the
Guarantee by each Guarantor of the Company’s payment obligations under this
Indenture.


 


“Notes” has the
meaning assigned to it in the preamble to this Indenture. The Initial Notes and
the Additional Notes shall be treated as a single class for all purposes
under this Indenture, including waivers, amendments, redemptions and offers to
purchase.


 


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


 


“Offering” means the
offering of the Notes by the Company.


 


“Officer” means, with
respect to any Person, the Chair of the Board, the Vice Chair of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.


 


“Officers’
Certificate” means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 14.05
hereof.


 


“Opinion
of Counsel” means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section 14.05
hereof. The counsel may be internal or external counsel to the Company or counsel
to the Trustee.


 


8

















 


“Parent” means ICO
Global Communications (Holdings) Limited.


 


“Permitted
Business” means the business of the Company and its
Subsidiaries as described in the Confidential Information Memorandum dated July 2005
used by the Company in connection with the offer and sale of the Notes.


 


“Permitted
Holders” means Eagle River Investments LLC and any
investment fund managed and controlled by Eagle River Investments LLC.


 


“Permitted
Investments” means (i) any Investment in the Company or in
a Subsidiary of the Company; (ii) any Investment in Cash Equivalents; (iii) any
Investment by the Company or any Subsidiary of the Company in a Person, if as a
result of such Investment: (a) such Person becomes a Subsidiary of the
Company; or (b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Subsidiary of the Company; (iv) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 5.10
hereof; (v) any acquisition of assets or Capital Stock solely in exchange
for the issuance of Equity Interests (other than Disqualified Stock) of the
Company; (vi) any Investments received in compromise or resolution of
litigation, arbitration or other disputes; (vii) Investments represented
by Hedging Obligations; (viii) loans or advances to employees made in the
ordinary course of business of the Company or any Subsidiary of the Company in
an aggregate principal amount not to exceed $1.0 million at any one time
outstanding; and (ix) repurchases of the Notes, including the related Note
Guarantees.


 


“Permitted
Liens” means (i) subject to the terms of the Collateral Trust Agreement,
Liens on assets of the Company or any of its Subsidiaries securing Indebtedness
and other Obligations under the Working Capital Facility that was permitted to
be incurred pursuant to clause (i) of the definition of Permitted
Debt and/or securing Hedging Obligations related thereto, which Liens may be
higher in priority to the Liens securing Obligations under the Notes, this
Indenture and the Note Guarantees; (ii) Liens securing Indebtedness and
other Obligations under this Indenture, the Notes and the Note Guarantees,
permitted to be incurred pursuant to clause (ii) of the definition of
“Permitted Debt”, which Liens shall be equal or lower in priority to any other
Liens incurred pursuant to this clause (ii) to secure the Notes; (iii) Liens
in favor of the Company or any Guarantor; (iv) Liens to secure the
performance of statutory obligations, performance bonds or other obligations of
a like nature incurred in the ordinary course of business; (v) Liens for
taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; provided
that any reserve or other appropriate provision as is required in conformity
with GAAP has been made therefor; (vi) Liens imposed by law, such as
carriers’, warehousemen’s, materialmans’, landlord’s and mechanics’ Liens, in
each case, incurred in the ordinary course of business; and (vii) survey
exceptions, easements or reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real
property that were not incurred in connection with Indebtedness and that do not
in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person.


 


9

















 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or any
of its Subsidiaries issued in exchange for, or the net proceeds of which are
used to renew, refund, refinance, replace, defease or discharge other
Indebtedness of the Company or any of its Subsidiaries (other than intercompany
Indebtedness); provided that (i) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness renewed, refunded, refinanced,
replaced, defeased or discharged (plus all accrued interest on the Indebtedness
and the amount of all fees and expenses, including premiums, incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged; (iii) if the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the Holders as
those contained in the documentation governing the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged; and (iv) such
Indebtedness is incurred either by the Company or by the Subsidiary who is the
obligor on the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged.


 


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


 


“Pledged
Collateral” means any assets of the Company or any Guarantor or
any other Person defined as “Pledged Collateral” or “Collateral” in any
Collateral Document.


 


“Pro Rata
Amount” means, with respect to any Holder, a fraction, the numerator of which
is the aggregate principal amount of Notes held by such Holder and the
denominator of which is the aggregate principal amount of Notes outstanding.


 


“Qualifying
Event” means certification by the Company or its Subsidiaries to the FCC of
the full operational status of a satellite and its associated system under the
requirements of the Company’s MSS/ATC FCC License.


 


“Qualifying
Private Offering” means a bona fide sale
of Class A Common Stock of the Company, or a security convertible into or
exchangeable for Class A Common Stock of the Company, to a person who,
prior to such sale, is not an Affiliate of the Company, which sale generates no
less than $200.0 million in gross proceeds to the Company.


 


“Qualifying
Public Offering” means: (i) a registered bona fide
public offering of the Company’s Class A Common Stock, other than any such
offering registered on Form S-4 or Form S-8, at a price per share at
least equal to the then-effective Multiple times the then effective Conversion
Price and that generates gross proceeds to the Company of at least $100.0 million;
or (ii) the first day on which the Company’s Class A Common Stock (a) is
listed on a national securities exchange or the Nasdaq National Market; (b) has
a public float of at least $300.0 million (excluding shares held by Affiliates
of the Company), and (c) for the preceding twenty 


 


10

















 


consecutive trading days on the principal national securities exchange
or the Nasdaq National Market on which it trades, has had (1) a closing
sale price at least equal to the then-effective Multiple times the then
effective Conversion Price, and (2) a daily trading volume for each such
trading day which, when multiplied by the closing sale price for such trading
day, equals at least $13.0 million.


 


“Qualifying
Sale” means a bona fide sale of at least a
majority of the fully diluted Class A Common Stock of the Company to a
person who, prior to such sale, is not an Affiliate of the Company, for an aggregate
purchase price of at least $500.0 million.


 


“Registration
Rights Agreement” means the several Registration Rights Agreements dated
as of the date of this Indenture among the Company and the purchasers of the
Initial Notes identified therein, as such agreements may be amended,
modified or supplemented from time to time in accordance with their terms and
this Indenture.


 


“Regulation
S” means Regulation S promulgated under the Securities Act (or any
successor provision promulgated by the SEC).


 


“Responsible
Officer”, when used with respect to the Trustee, means any vice
president, assistant vice president, assistant treasurer, trust officer or any
other officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.


 


“Restricted
Investment” means any Investment other than a Permitted
Investment.


 


“Rule 144” means Rule 144
promulgated under the Securities Act (or any successor provision promulgated by
the SEC).


 


“Rule 144A” means Rule 144A
promulgated under the Securities Act (or any successor provision promulgated by
the SEC).


 


“SEC” means the
Securities and Exchange Commission.


 


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


 


“Significant
Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1–02 of Regulation S–X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.


 


“Standard &
Poor’s” means Standard & Poor’s Corporation.


 


“Stated
Maturity” means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment
of interest or principal was scheduled to be paid in the documentation
governing such Indebtedness as of the date of this Indenture, and 


 


11

















 


will not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.


 


“Subsidiary” means, with
respect to any specified Person: (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of directors,
managers or trustees of the corporation, association or other business entity
is at the time owned or controlled, directly or indirectly, by that 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 the managing
general partner of which is such Person or a Subsidiary of such Person or (b) the
only general partners of which are that Person or one or more Subsidiaries of
that Person (or any combination thereof).


 


“System” means assets
constituting a commercial radio communications system authorized by the FCC
pursuant to the Communications Act of 1934, as amended, including any license
or authorization, and the network, marketing, distribution, sales, customer
interface and any operations related thereto.


 


“TIA” means the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on
the date on which this Indenture is qualified under the TIA.


 


“Trading
Day” means (i) if the Class A Common Stock is quoted on the
Nasdaq National Market or any other system of automated dissemination of
quotations of securities prices, days on which trades may be effected
through such system, (ii) if the Class A Common Stock is listed or
admitted for trading on any national or regional securities exchange, days on
which such national or regional securities exchange is open for business, or (iii) if
the Class A Common Stock is not listed on a national or regional
securities exchange or quoted on the Nasdaq National Market or any other system
of automated dissemination of quotation of securities prices, days on which the
Class A Common Stock is traded regular way in the over-the-counter market
and for which a closing bid and a closing asked price for the Class A
Common Stock are available.


 


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


 


“UCC” means the Uniform Commercial
Code as in effect in the State of New York or any other applicable
jurisdiction.


 


“Voting
Stock” of any specified Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at
any date, the number of years obtained by dividing: (a) the sum of the
products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness,
by (y) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment, by (b) the then
outstanding principal amount of such Indebtedness.


 


12

















 


“Working
Capital Facility” means one or more debt facilities with banks or
other institutional lenders providing for revolving credit loans, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated,
modified, renewed, refunded, replaced (whether upon or after termination or
otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time.


 


13

















 


Section 1.02.                         Other
Definitions.


 


	
  Term

  	
   

  	
  Defined

  in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  5.11

  
	
  “Asset Sale”

  	
   

  	
  5.10

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Change of Control Offer”

  	
   

  	
  5.15

  
	
  “Change of Control Payment Date”

  	
   

  	
  5.15

  
	
  “Change of Control Payment”

  	
   

  	
  5.15

  
	
  “clause (1) debt
  notice”

  	
   

  	
  5.09

  
	
  “clause (1) equity
  notice”

  	
   

  	
  5.21

  
	
  “clause (2) debt
  notice”

  	
   

  	
  5.09

  
	
  “clause (2) equity
  notice”

  	
   

  	
  5.21

  
	
  “clause (a) debt
  holder”

  	
   

  	
  5.09

  
	
  “clause (a) equity
  holder”

  	
   

  	
  5.21

  
	
  “clause (b) debt
  holder”

  	
   

  	
  5.09

  
	
  “clause (b) equity
  holder”

  	
   

  	
  5.21

  
	
  “clause (c) debt
  allocation round”

  	
   

  	
  5.09

  
	
  “clause (c) debt
  holder”

  	
   

  	
  5.09

  
	
  “clause (c) equity
  allocation round”

  	
   

  	
  5.21

  
	
  “clause (c) equity
  holder”

  	
   

  	
  5.21

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  
	
  “Conversion Date”

  	
   

  	
  4.02

  
	
  “Conversion Price”

  	
   

  	
  4.01

  
	
  “Conversion Securities”

  	
   

  	
  4.01

  
	
  “Covenant Defeasance”

  	
   

  	
  9.03

  
	
  “Current Market Price”

  	
   

  	
  4.06

  
	
  “Event of Default”

  	
   

  	
  7.01

  
	
  “Excess Proceeds Offer”

  	
   

  	
  3.02

  
	
  “Excess Proceeds”

  	
   

  	
  5.10

  
	
  “Expiration Date”

  	
   

  	
  4.06

  
	
  “Expiration Time”

  	
   

  	
  4.06

  
	
  “FCC Implementation Milestone”

  	
   

  	
  5.03

  
	
  “ICO License Modification Order”

  	
   

  	
  5.03

  
	
  “incur”

  	
   

  	
  5.09

  
	
  “Legal Defeasance”

  	
   

  	
  9.02

  
	
  “Legend”

  	
   

  	
  2.13

  
	
  “new Indebtedness”

  	
   

  	
  5.09

  
	
  “Offer Amount”

  	
   

  	
  3.02

  
	
  “Offer Period”

  	
   

  	
  3.02

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Default”

  	
   

  	
  7.01

  
	
  “Permitted Debt”

  	
   

  	
  5.09

  
	
  “Purchase Date”

  	
   

  	
  3.02

  



 


14

















 


	
  Term

  	
   

  	
  Defined

  in

  Section

  
	
   

  	
   

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  5.07

  



 


Section 1.03.                   Incorporation by Reference
of Trust Indenture Act.


 


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


 


The
following TIA terms used in this Indenture have the following meanings:


 


“indenture
securities” means the Notes and the Note Guarantees;


 


“indenture
security Holder” means a Holder of a Note;


 


“indenture
to be qualified” means this Indenture;


 


“indenture
trustee” or “institutional trustee”
means the Trustee; and


 


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


 


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


 


Section 1.04.                   Rules of Construction.


 


Unless
the context otherwise requires:


 


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


 


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


 


(c)                            “or” is not
exclusive;


 


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


 


(e)                            provisions apply
to successive events and transactions; and


 


(f)                              references to
sections of or rules under the TIA, the Securities Act or the Exchange Act
shall be deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time.


 


15

















 


ARTICLE 2.

THE NOTES


 


Section 2.01.                         Form and
Dating.


 


The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.


 


The
terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture and the Company, the Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.


 


Section 2.02.                         Execution and
Authentication.


 


Two
Officers shall sign the Notes for the Company by manual or facsimile signature.


 


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


 


A
Note shall not be valid until authenticated by the manual signature of the
Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.


 


The
Trustee shall, upon a written order of the Company signed by two Officers (an “Authentication Order”) accompanied by an Officers’ Certificate,
authenticate Notes for original issue up to the aggregate principal amount of
$650.0 million plus any Additional Notes permitted to be issued in lieu of cash
interest payments on the Initial Notes as permitted by Section 5.09 hereof
and paragraph “1. Interest” in the Form of Note. The aggregate principal
amount of Notes outstanding at any time may not exceed such amount except
as provided in Section 2.07 hereof.


 


The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.


 


Section 2.03.                         Registrar, Paying
Agent and Conversion Agent.


 


The
Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange (“Registrar”),
an office or agency where Notes may be presented for payment (“Paying Agent”), and an office or agency where the Notes may be
presented for conversion (“Conversion Agent”).
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or
more additional paying agents and conversion agents. The term “Registrar”
includes any co-registrar, the term “Paying Agent” includes any additional
paying agent, and the term 


 


16

















 


“Conversion Agent” includes any additional conversion agent. The
Company may change any Paying Agent, Registrar or Conversion Agent without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act
as Paying Agent or Registrar.


 


The
Company initially appoints the Trustee to act as the Registrar, Paying Agent
and Conversion Agent.


 


Section 2.04.                         Paying Agent to
Hold Money in Trust.


 


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


 


Section 2.05.                         Holder Lists.


 


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


 


Section 2.06.                         Transfer and
Exchange.


 


(a) 
Subject to compliance with any applicable additional requirements contained in Section 2.13,
when a Note is presented to a Registrar with a request to register a transfer
thereof or to exchange such Note for an equal principal amount of Notes of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested; provided, however,
that every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by an assignment form and,
if applicable, an appropriately completed certificate of transfer in the form attached
as Exhibit B hereto, and in form satisfactory to the Registrar duly
executed by the Holder thereof or its attorney duly authorized in writing. To
permit registration of transfers and exchanges, upon surrender of any Note for
registration of transfer or exchange at an office or agency maintained pursuant
to Section 2.3, the Company shall execute and the Trustee shall authenticate
Notes of a like 


 


17

















 


aggregate principal amount at the Registrar’s request. Any exchange or
transfer shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto other than any tax or other governmental charge
payable upon any exchange or transfer pursuant to Section 2.10, 2.13(a),
3.2, 5.10, 5.15 and 10.05.


 


(b) 
The Company shall not be required (A) to issue, to register the transfer
of or to exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for repurchase under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for repurchase in
whole or in part, except the unpurchased portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date set forth on the face of
such Note.


 


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


 


(d) 
Any Registrar appointed pursuant to Section 2.3 hereof shall provide to
the Trustee such information as the Trustee may reasonably require in connection
with the delivery by such Registrar of Notes upon transfer or exchange of
Notes.


 


(e) 
Each Holder of a Note agrees to indemnify the Company and the Trustee against
any liability that may result from the transfer, exchange or assignment by
such Holder of its Note in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.


 


(f) 
The Trustee shall have no obligation or duty to monitor, determine or inquire
as to compliance with any restrictions on transfer imposed under this Indenture
or under applicable law with respect to any transfer of any interest in any
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.


 


(g) 
Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note for the purpose
of receiving payment of principal of and interest on such Notes and for all
other purposes, and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.


 


(h) 
All certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.


 


(i) 
Notwithstanding anything in this Indenture or the Notes to the contrary, prior
to an initial public offering of the Common Stock of the Company, so long as no
Default or Event of Default has occurred or is continuing, Holders of the Notes
shall be required to obtain the prior written consent of the Company (which
consent shall not be unreasonably withheld, conditioned


 


18

















 


or delayed), prior to the
sale, disposition or other transfer of any Note or any rights associated with
any Note, in whole or in part, to any Person other than to an Affiliate of a
Holder, another Holder, or to Jefferies & Co. or UBS Securities LLC
(who shall become Holders of the Notes for purposes of this Indenture upon such
purchase); provided that, so long as no Default or
Event of Default has occurred and is continuing, the Company shall have the
right, exercisable in its sole discretion, to restrict and expressly prohibit
any sale, disposition or other transfer of any Note from any Holder to any
competitor of the Company in the mobile satellite wireless telecommunications
industry (or any Subsidiary or other entity controlled by such competitor); and
the Holders of all Notes shall be deemed to have consented to the foregoing
restriction on sale, disposition or transfer.


 


Section 2.07.                         Replacement
Notes.


 


If
any mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee’s
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note
is replaced. The Company may charge for its expenses in replacing a Note.


 


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


 


Section 2.08.                         Outstanding
Notes.


 


The
Notes outstanding at any time are all the Notes authenticated by the Trustee,
except for those canceled by it, those converted pursuant to Article 4, those
delivered to it for cancellation, and those described in this Section as
not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company
holds the Note.


 


If
a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide
purchaser.


 


If
the principal amount of any Note is considered paid under Section 5.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.


 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a repurchase date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.


 


19

















 


Section 2.09.                         Treasury Notes.


 


In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.


 


Section 2.10.                         Temporary
Notes.


 


Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.


 


Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture.


 


Section 2.11.                         Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar, Paying Agent and Conversion Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange, payment or
conversion. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement, cancellation or
conversion and shall dispose of canceled Notes (subject to the record retention
requirement of the Exchange Act). The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation, or that any Holder has converted pursuant to Article 4
hereof.


 


Section 2.12.                         Defaulted
Interest.


 


If
the Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful and in
accordance with the provisions of the Collateral Trust Agreement, if applicable,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 5.01 hereof. 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. The Company shall fix or cause to be
fixed each such special record date and payment date, provided
that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall mail or cause
to be mailed to Holders a notice that states the special record date, the
related payment date and the amount of such interest to be paid.


 


20

















 


Section 2.13.                         Legend;
Additional Transfer and Exchange Requirements.


 


(a)                                  If Notes are
issued upon the transfer, exchange or replacement of Notes subject to
restrictions on transfer and bearing the legends set forth on the forms of
Notes attached hereto as Exhibit A (collectively, the “Legend”), or if a request is made to remove the Legend on a
Note, (i) the Notes so issued shall bear the Legend, or (ii) the
Legend shall not be removed, as the case may be, unless in the case of
clause (ii) there is delivered to the Company and the Registrar such
satisfactory evidence, which shall include an Opinion of Counsel if requested
by the Company or such Registrar, as may be reasonably required by the
Company and the Registrar, that neither the Legend nor the restrictions on
transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A, Rule 144 or Regulation S under the
Securities Act or that such Notes are not “restricted” within the meaning of Rule 144
under the Securities Act; provided that
no such evidence need be supplied in connection with the sale of such Note
pursuant to a registration statement that is effective at the time of such sale.
Upon (1) provision of such satisfactory evidence if requested, or (2) notification
by the Company to the Trustee and Registrar of the sale of such Note pursuant
to a registration statement that is effective at the time of such sale, the
Trustee, at the written direction of the Company, shall authenticate and
deliver a Note that does not bear the Legend. If the Legend is removed from the
face of a Note and the Note is subsequently held by an Affiliate of the
Company, the Legend shall be reinstated.


 


(b)                                 No transfer of
a Note to any Person shall be effective under this Indenture or the Notes
unless and until such Note has been registered in the name of such Person.


 


(c)                                  Subject to the
succeeding paragraph, every Note shall be subject to the restrictions on
transfer provided in the Legend. Whenever any restricted Note is presented or
surrendered for registration of transfer or for exchange for a Note registered
in a name other than that of the Holder, such Note must be accompanied by a certificate
of transfer in the form attached as Exhibit B hereto, dated the date
of such surrender and signed by the Holder of such Note, as to compliance with any
applicable restrictions on transfer. The Registrar shall not be required to
accept for such registration of transfer or exchange any Note not so
accompanied by a properly completed certificate.


 


(d)                                 The
restrictions imposed by the Legend upon the transferability of any Note shall
cease and terminate when such Note has been sold pursuant to an effective
registration statement under the Securities Act or transferred in compliance
with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision). Any Note as to which such restrictions on transfer shall
have expired in accordance with their terms or shall have terminated may, upon
a surrender of such Note for exchange to the Registrar in accordance with the
provisions of this Section 2.13 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested by the Company
or the Registrar, an Opinion of Counsel reasonably acceptable to the Company
and addressed to the Company in form acceptable to the Company, to the
effect that the transfer of such Note has been made in compliance with Rule 144
or such successor provision), be exchanged for a new Note, of like tenor and
aggregate principal amount, which shall not bear the restrictive Legend. The
Company shall inform the Trustee of the effective date of any registration
statement registering the Notes 


 


21

















 


under the Securities Act. The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.


 


(e)                                  No transfer of
a Note to any Person shall be effective under this Indenture or the Notes if
such transfer would, in the reasonable judgment of the Company, require the
Company or any of its Subsidiaries to become subject to the reporting
requirements under the Exchange Act.


 


As
used in the preceding Subsections 2.13(c) and (d), the term “transfer”
encompasses any sale, pledge, transfer, hypothecation or other disposition of
any Note.


 


Section 2.14.                   CUSIP
Numbers.


 


The
Company in issuing the Notes may use one or more “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption or purchase as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption or purchase and that reliance may be placed
only on the other identification numbers printed on the Notes, and any such
redemption or purchase 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.


 


ARTICLE 3.

REDEMPTION AND PREPAYMENT


 


Section 3.01.                   Redemption.


 


The
Notes are not redeemable at the option of the Company or any Holder prior to
their Stated Maturity. The Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


Section 3.02.                   Offer to Purchase by Application
of Excess Proceeds.


 


In
the event that, pursuant to Section 5.10 hereof, the Company shall be
required to commence an offer to all Holders of Notes and to all holders of
other secured Indebtedness that is pari passu in
right of payment and as to security interests with the Notes and that contains provisions similar to those set forth in this Indenture
with respect to offers to purchase or redeem with the proceeds of sales of
assets to purchase the maximum principal amount of Notes and such other pari passu secured Indebtedness that may be purchased
out of the Excess Proceeds (an “Excess Proceeds Offer”),
it shall follow the procedures specified below.


 


The
Excess Proceeds Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the “Offer Period”).
As promptly as practicable and no later than three Business Days after the
termination of the Offer Period (the “Purchase Date”),
the Company shall 


 


22

















 


purchase the principal amount of Notes required to be purchased
pursuant to Section 5.10 hereof (the “Offer Amount”)
or, if less than the Offer Amount has been tendered, all Notes tendered in response
to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made
in the same manner as interest payments are made.


 


If
the Purchase Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
record date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Excess Proceeds Offer.


 


Upon
the commencement of an Excess Proceeds Offer, the Company shall send, by first class mail,
a notice to the Trustee and to each of the Holders, with a copy to the Trustee.
The notice shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Excess Proceeds Offer. The Excess
Proceeds Offer shall be made to all Holders. The notice, which shall govern the
terms of the Excess Proceeds Offer, shall state:


 


(a)                            that the Excess
Proceeds Offer is being made pursuant to this Section 3.02 and Section 5.10
hereof and the length of time the Excess Proceeds Offer shall remain open;


 


(b)                           the Offer
Amount, the purchase price and the Purchase Date;


 


(c)                            that any Note
not tendered or accepted for payment shall continue to accrue interest;


 


(d)                           that, unless
the Company defaults in making such payment, any Note accepted for payment
pursuant to the Excess Proceeds Offer shall cease to accrue interest after the
Purchase Date;


 


(e)                            that Holders
electing to have a Note purchased pursuant to an Excess Proceeds Offer may elect
to have Notes purchased in integral multiples of $1,000 only;


 


(f)                              that Holders
electing to have a Note purchased pursuant to any Excess Proceeds Offer shall
be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, or transfer by
book-entry transfer, to the Company, a depositary, if appointed by the Company,
or a Paying Agent at the address specified in the notice no later than the
expiration of the Offer Period prior to the Purchase Date;


 


(g)                           that Holders
shall be entitled to withdraw their election if the Company, the depositary or
the Paying Agent, as the case may be, receives, not later than the
expiration of the Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;


 


(h)                           that, if the aggregate
principal amount of Notes surrendered by Holders exceeds the Offer Amount, the
Company shall select the Notes to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by the Company
so that only Notes in denominations of $1,000, or integral multiples thereof,
shall be purchased); and


 


23

















 


(i)                               that Holders
whose Notes were purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).


 


On
or before the Purchase Date, the Company shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Excess Proceeds Offer, or if less than the Offer Amount has been tendered,
all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.02. If the
aggregate principal amount of Notes and other pari passu
secured Indebtedness tendered into such Excess Proceeds Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu secured Indebtedness to be purchased on a pro rata basis. The Company, the Depositary or the
Paying Agent, as the case may be, shall promptly (but in any case not
later than three Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce the results of the Excess
Proceeds Offer on the Purchase Date.


 


The
Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act, and any other securities laws and regulations thereunder to the
extent such laws or regulations are applicable in connection with the
repurchase of the Notes pursuant to any Excess Proceeds Offer.


 


ARTICLE 4.

CONVERSION


 


Section 4.01.                   Conversion Privilege.


 


(a)                            Conversion
at the Option of the Holder. (1) Subject to the
further provisions of this Article 4 and paragraph 9 in the Form of Note,
a Holder of a Note may convert such Note (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into such number (rounded
to the nearest whole number) of fully paid and nonassessable shares of Class A
Common Stock of the Company as is determined by dividing the principal amount
thereof, plus, if such conversion occurs following payment of the fourth
semi-annual interest payment, accrued and unpaid interest to the Conversion
Date, by the Conversion Price in effect at the time of such conversion; provided, however, that if such Note is presented for
purchase pursuant to Section 3.02 or Section 5.15, such conversion
right shall terminate at the date such Note is purchased pursuant to an Express
Proceeds Offer or a Change of Control Offer, as the case may be, for such
Note or such earlier date as the Holder presents such Note for purchase (unless
the Company shall default in making the Excess Proceeds Offer payment or the Change
of Control purchase price payment, as the case may be, when due, in which
case the conversion 


 


24

















 


right shall terminate at the
close of business on the date such Default is cured and such Note is purchased).


 


(2) 
Subject to the further provisions of this Article 4 and paragraph 9 in the
terms of the Form of Note, in the event the Company (i) reclassifies
or changes its Class A Common Stock (other than changes resulting from a
subdivision or combination) or (ii) consolidates or combines with or
merges into any Person or sells or conveys to another Person all or
substantially all of its property and assets, and the holders of the Company’s Class A
Common Stock receive stock, other securities or other property or assets
(including cash or any combination thereof) with respect to or in exchange for
their Class A Common Stock, the Holders may convert their Notes into
the consideration they would have received if they had converted their Notes
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance (the “Conversion Securities”).


 


(b)                                 Automatic
Conversion into the Company’s Class A Common Stock. Subject to the
further provisions of this Article 4 and paragraph 9 in the terms of the Form of
Note, each Note then outstanding shall automatically be converted into shares
of the Company’s Class A Common Stock (or Conversion Securities, if
applicable), at the Conversion Price then in effect upon any of the following:


 


(1)  the written
consent of Holders owning two-thirds in principal amount of the outstanding
Notes (including any Additional Notes);


 


(2)  consummation of a
Qualifying Public Offering if the Company’s Class A Common Stock (or
Conversion Securities, if applicable) to be issued to the Holders (w) would not
be “restricted securities” (as defined in Rule 144) or is otherwise freely
transferable without restriction pursuant to an effective shelf registration
statement under the Securities Act and (x) is listed on a national securities
exchange or the Nasdaq National Market; and


 


(3)  consummation of a
Qualifying Private Offering or Qualifying Sale if (y) the Company has offered
to repurchase each outstanding Note at a repurchase price at least equal to the
Multiple times the principal amount thereof, plus accrued and unpaid interest
and (z) the Company’s Class A Common Stock (or Conversion Securities, if
applicable) to be issued to Holders (A) would not be “restricted
securities” (as defined in Rule 144) or is otherwise freely transferable
without restriction pursuant to an effective shelf registration statement under
the Securities Act and (B) is listed on a national securities exchange or
the Nasdaq National Market.


 


Notwithstanding
anything in this Indenture to the contrary, to the extent that the Company is
otherwise obligated to make a Change of Control Offer pursuant to Section 5.15
hereof following a Qualifying Private Offering or a Qualifying Sale, the
Company may, at its option, combine such Change of Control Offer with the offer
contemplated by clause (3) in the immediately preceding paragraph, in
which case the applicable repurchase price shall be the higher of the
repurchase price required by the Change of Control Offer and the repurchase
price required by such preceding clause (3).


 


25

















 


(c)                                  Additional
Automatic Conversion. Subject to the further provisions of this Article 4
and paragraph 9 in the terms of the Form of Note, each Note then
outstanding shall automatically be converted into Conversion Securities at the
Conversion Price then in effect if:


 


(1) the Notes are then
convertible only into such Conversion Securities (or a combination of
Conversion Securities and cash); and


 


(2) such Conversion
Securities:


 


(i) 
would not be “restricted securities” (as defined in Rule 144) or are
otherwise freely transferable without restriction pursuant to an effective shelf
registration statement under the Securities Act,


 


(ii) 
are listed on a national securities exchange or the Nasdaq National Market,


 


(iii) have
a public float of at least $300.0 million (excluding securities held by
Affiliates of the issuer of such Conversion Securities) and


 


(iv) for
the preceding twenty consecutive Trading Days on the principal national securities
exchange or the Nasdaq National Market on which such Conversion Securities
trade, have had


 


(A) an
average per-security closing sale price that, when multiplied by the number of
such Conversion Securities and added to the amount of cash, if any, receivable
upon such conversion (excluding any such cash in respect of accrued and unpaid
interest), would equal the then-effective Multiple times the principal amount
(including converted interest, if any) of such Note; and


 


(B) a
daily trading volume for each such Trading Day which, when multiplied by the
closing sale price for such Trading Day, equals at least $13.0 million.


 


(d)                                 The provisions of
this Indenture that apply to the conversion of all of a Note also apply to the conversion
of a portion of a Note.


 


(e)                                  A Note in
respect of which a Holder has delivered an “Option of Holder to Elect Purchase”
form exercising the option of such Holder to require the Company to
purchase such Note pursuant to an Excess Proceeds Offer or a Change of Control Offer
may be converted only if such form is withdrawn by a written notice
of withdrawal delivered to a Paying Agent no later than the expiration of the
Offer Period in accordance with Section 3.02 or Section 5.15, as
applicable.


 


(f)                                    If a Note is
converted on or after a record date for an interest payment but prior to the
corresponding interest payment date, the Holder will be required to pay the
Company, at the time it surrenders such Note for conversion, the amount of
interest on such Notes it will receive on the interest payment date
corresponding to the period commencing on such conversion date and ending on
such interest payment date. Notwithstanding the foregoing, if a 


 


26

















 


Note is converted prior to
payment of the fourth semi-annual interest payment, such Holder shall be
entitled to receive, in addition to the Company’s Class A Common Stock (or
other securities or assets as provided for in this Section 4.01) issuable
upon such conversion, a cash payment equal to the entire remaining Escrowed
Interest applicable to such Note.


 


(g)                                 A Holder of
Notes is not entitled to any rights of a holder of Class A Common Stock
until such Holder has converted its Notes to Class A Common Stock, and
only to the extent such Notes are deemed to have been converted into Class A
Common Stock pursuant to this Article 4.


 


Section 4.02.                   Conversion
Procedure.


 


To
convert a Note, a Holder must (a) complete and manually sign the
conversion notice on the back of the Note and deliver such notice to a
Conversion Agent, (b) surrender the Note to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by a Registrar or a
Conversion Agent, and (d) pay any transfer or similar tax, if required. The
date on which the Holder satisfies all of those requirements is the “Conversion Date”. As soon as practicable after the
Conversion Date, the Company shall deliver to the Holder through a Conversion
Agent a certificate for the number of whole shares of Class A Common Stock
(or Conversion Securities, if applicable) issuable upon the conversion.


 


The
person in whose name the Class A Common Stock certificate is registered
shall be deemed to be a stockholder of record on the Conversion Date; provided, however, that no surrender of a Note on any date
when the stock transfer books of the Company shall be closed shall be effective
to constitute the person or persons entitled to receive the shares of Class A
Common Stock (or Conversion Securities, as applicable) upon such conversion as
the record holder or holders of such shares of Class A Common Stock (or
Conversion Securities, as applicable) on such date, but such surrender shall be
effective to constitute the person or persons entitled to receive such shares
of Class A Common Stock (or Conversion Securities, as applicable) as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding Business Day on which such stock transfer books are open; provided, further, that such conversion shall be at the Conversion
Price in effect on the Conversion Date as if the stock transfer books of the
Company had not been closed. Upon conversion of a Note, such person shall no
longer be a Holder of such Note. No payment or adjustment will be made for
dividends or distributions on shares of Class A Common Stock (or
Conversion Securities, as applicable) issued upon conversion of a Note.


 


Upon
surrender of a Note that is converted in part, the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder, a new Note equal in
principal amount to the unconverted portion of the Note surrendered.


 


Section 4.03.                   Intentionally Omitted.


 


Section 4.04.                   Taxes
on Conversion.


 


If
a Holder converts a Note, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on the issue of shares of Class A Common Stock (or
Conversion Securities, as applicable) upon such conversion. However, the Holder
shall pay any such tax 


 


27

















 


which is due because the Holder requests the securities to be issued in
a name other than the Holder’s name. Nothing herein shall preclude any tax
withholding required by law or regulation.


 


Section 4.05.                   Company to Provide Stock.


 


The
Company shall, prior to issuance of any Notes hereunder, and from time to time
as may be necessary, reserve, out of its authorized but unissued Class A
Common Stock (or Conversion Securities, as applicable), a sufficient number of
shares of Class A Common Stock (or Conversion Securities, as applicable)
to permit the conversion of all outstanding Notes into shares of Class A
Common Stock (or Conversion Securities, as applicable).


 


All
shares of Class A Common Stock (or Conversion Securities, as applicable) delivered
upon conversion of the Notes shall be newly issued shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.


 


The
Company will endeavor promptly to comply with all federal and state securities
laws regulating the offer and delivery of shares of Class A Common Stock (or
Conversion Securities, as applicable) upon conversion of Notes, if any, and
will list or cause to have quoted such shares of Class A Common Stock (or
Conversion Securities, as applicable) on each national securities exchange or
on The Nasdaq National Market or other over-the-counter market or such other
market on which the Class A Common Stock (or Conversion Securities, as
applicable) is then listed or quoted; provided, however,
that if rules of such automated quotation system or exchange permit the
Company to defer the listing of such Class A Common Stock (or Conversion
Securities, as applicable) until the first conversion of the Notes into Class A
Common Stock (or Conversion Securities, as applicable) in accordance with the
provisions of this Indenture, the Company covenants to list such Class A
Common Stock (or Conversion Securities, as applicable) issuable upon conversion
of the Notes in accordance with the requirements of such automated quotation
system or exchange at such time.


 


Section 4.06.                   Adjustment of Conversion
Price.


 


The
Conversion Price shall be adjusted from time to time by the Company as follows:


 


(1)                                  In case the Company shall (A) pay a
dividend on its Class A Common Stock in shares of Class A Common
Stock, (B) make a distribution on its Class A Common Stock in shares
of Class A Common Stock, (C) subdivide its outstanding Class A
Common Stock into a greater number of shares, or (D) combine its
outstanding Class A Common Stock into a smaller number of shares, the Conversion
Price in effect immediately prior thereto shall be adjusted so that the Holder
of any Note thereafter surrendered for conversion shall be entitled to receive
that number of shares of Class A Common Stock which it would have owned
had such Note been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection (1) shall become
effective immediately after the record date in the case of a dividend or distribution
and shall become effective immediately after the effective date in the case of
subdivision or combination.


 


28

















 


(2)                                  In case the Company shall distribute rights,
options or warrants to all or substantially all holders of its Class A
Common Stock entitling them (for a period of not more than 60 days after such
issuance) to subscribe for or purchase shares of Class A Common Stock (or
securities convertible into or exercisable or exchangeable for Class A
Common Stock) at a price per share (or having a conversion, exercise or
exchange price per share) less than the Current Market Price per share of Class A
Common Stock (as determined in accordance with subsection (7) of this
Section 4.06(a)) on the record date for the determination of stockholders
entitled to receive such rights, options or warrants (or if no record date is
fixed, the Business Day immediately prior to the date of announcement of such
issuance) (treating the conversion, exercise or exchange price per share of the
securities convertible into or exercisable or exchangeable for Class A
Common Stock as equal to (x) the sum of (i) the price for a unit of the
security convertible into or exercisable or exchangeable for Class A
Common Stock and (ii) any additional consideration initially payable upon
the conversion of such security into or exercise or exchange of such security
for Class A Common Stock divided by (y) the number of shares of Class A
Common Stock initially underlying such security), the Conversion Price in
effect immediately prior thereto shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to such record date by a fraction of which:


 


(A)                              the numerator shall be the number of shares
of Class A Common Stock outstanding on the close of business on such
record date (or if no record date is fixed, the date immediately prior to the
date of announcement of such issuance), plus the number of shares which the
aggregate offering price of the total number of shares of Class A Common
Stock so offered (or the aggregate conversion, exercise or exchange price of
the securities so offered, which shall be determined by multiplying the number
of shares of Class A Common Stock issuable upon conversion, exercise or
exchange of such securities by the applicable conversion, exercise or exchange
price per share of Class A Common Stock pursuant to the terms of such
securities) would purchase at the Current Market Price per share (as defined in
subsection (7) of this Section 4.06(a)) of Class A Common
Stock on such record date; and


 


(B)                                the denominator shall be the number of shares
of Class A Common Stock outstanding on the close of business on such
record date with respect to such distribution (or if no record date is fixed,
the date immediately prior to the date of announcement of such issuance), plus
the number of additional shares of Class A Common Stock offered (or into
which the securities so offered are convertible, exchangeable or exercisable).


 


Such adjustment shall be made successively
whenever any such rights, options or warrants are issued, and shall become
effective immediately after such record date. If at the end of the period
during which such rights, options or warrants are exercisable not all rights,
option or warrants shall have been exercised, the adjusted Conversion Price
shall be immediately readjusted to what it would have been based upon the
number of additional shares of Class A Common Stock actually issued (or
the number of shares of Class A Common Stock issuable upon conversion of
convertible securities actually issued).


 


29

















 


(3)                                  (i) In case the Company shall distribute
to all or substantially all holders of its Class A Common Stock any shares
of capital stock of the Company (other than Class A Common Stock),
evidences of indebtedness or other non-cash assets (including securities of any
person other than the Company but excluding (A) dividends or distributions
paid exclusively in cash or (B) dividends or distributions referred to in
subsection (1) of this Section 4.06(a)), or shall distribute to
all or substantially all holders of its Class A Common Stock rights or
warrants to subscribe for or purchase any of its securities (excluding those
rights and warrants referred to in subsection (2) of this Section 4.06(a))
and also excluding the distribution of rights to all holders of Class A
Common Stock pursuant to a Rights Plan (as defined below) adopted before the
date of this Indenture), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
current Conversion Price by a fraction of which:


 


(A)                              the numerator shall be Current Market Price
per share (as defined in subsection (7) of this Section 4.06(a))
of the Class A Common Stock on the record date mentioned below less the
fair market value on such record date (as determined by the Board of Directors,
whose determination shall be conclusive evidence of such fair market value and
which shall be evidenced by an Officers’ Certificate delivered to the Trustee)
of the portion of the capital stock, evidences of indebtedness or other
non-cash assets so distributed or of such rights, options or warrants
applicable to one share of Class A Common Stock (determined on the basis
of the number of shares of Class A Common Stock outstanding on the record
date); and


 


(B)                                the denominator shall be the Current Market
Price per share (as defined in subsection (7) of this Section 4.06(a))
of the Class A Common Stock on such record date.


 


Such adjustment shall be made successively
whenever any such distribution is made and shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such distribution.


 


(ii)                                  In the event the then fair market value (as
so determined) of the portion of the capital stock, evidences of indebtedness
or other non-cash assets so distributed or of such rights or warrants
applicable to one share of Class A Common Stock is equal to or greater
than the Current Market Price per share of the Class A Common Stock on
such record date, in lieu of the foregoing adjustment, adequate provision shall
be made prior to the time the foregoing adjustment could otherwise be made in a
writing delivered to the Trustee and the Holders so that each Holder of a Note
shall have the right to receive upon conversion the amount of capital stock,
evidences of indebtedness or other non-cash assets so distributed or of such
rights or warrants such Holder would have received had such holder converted
each Note on such record date. In the event that such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion
Price which 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 4.06(a)(3) 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 of the Class A Common Stock.


 


30

















 


Notwithstanding the foregoing, if the
securities distributed by the Company to all or substantially all holders of
its Class A Common Stock consist of capital stock of, or similar equity
interests in, a Subsidiary or other business unit, the Conversion Price shall
be decreased so that the same shall be equal to the price determined by
multiplying the Conversion Price in effect on the record date with respect to
such distribution by a fraction:


 


(A)                              the numerator of which shall be the average
Closing Price of one share of Class A Common Stock over the Spinoff
Valuation Period (as defined below), such adjustment to become effective
immediately prior to the opening of business on the fifteenth Trading Day after
the date on which “ex-dividend trading” commences; and


 


(B)                                the denominator of which shall be the sum of
(x) the average Closing Price of one share of Class A Common Stock over
the ten consecutive Trading Day period (the “Spinoff Valuation Period”)
commencing on and including the fifth Trading Day after the date on which “ex-dividend
trading” commences on the Class A Common Stock on the Nasdaq National
Market or such other national or regional exchange or market on which the Class A
Common Stock is then listed or quoted and (y) the average Closing Price over
the Spinoff Valuation Period of the portion of the securities so distributed
applicable to one share of Class A Common Stock.


 


In lieu of the foregoing, the Company may at
the time of the public announcement of such distribution elect in a writing
provided to the Trustee and the Holders to reserve the pro rata
portion of such Notes so that each Holder of securities shall have the right to
receive upon conversion the amount of such shares of capital stock or similar
equity interests of such Subsidiary or business unit that such Holder of Notes
would have received if such Holder of Notes had converted such Notes on the
record date with respect to such distribution.


 


(iii)                               With respect to any rights (the “Rights”) that may be issued or distributed pursuant to
any rights plan of the Company (any Rights that may be issued pursuant to
any rights plan being referred to as, a “Rights Plan”),
upon conversion of the Notes into Class A Common Stock, to the extent that
such Rights Plan is in effect upon such conversion, the holders of Notes will
receive, in addition to the Class A Common Stock, the Rights described
therein (whether or not the Rights have separated from the Class A Common
Stock at the time of conversion), subject to the limitations set forth in any
such Rights Plan. If the Rights Plan provides that upon separation of rights
under such plan from the Class A Common Stock that the Holders would not
be entitled to receive any such rights in respect of the Class A Common
Stock issuable upon conversion of the Notes, the Conversion Price will be
adjusted as provided in this Section 4.06(a) (with such separation
deemed to be the distribution of such rights), subject to readjustment in the
event of the expiration, termination or redemption of the rights. Any
distribution of rights or warrants pursuant to a Rights Plan complying with the
requirements set forth in the immediately preceding sentence of this paragraph
shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a)(3).


 


(iv)                              Rights, options or warrants (other than
rights issued pursuant to a Rights Plan) distributed by the Company to all or
substantially all holders of Class A Common Stock entitling 


 


31

















 


the holders thereof to subscribe for or
purchase shares of the Company’s Capital Stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (a “Trigger Event”):  (i) are deemed to be transferred with
such shares of Class A Common Stock; (ii) are not exercisable; and (iii) are
also issued in respect of future issuances of Class A Common Stock
(including issuances of Class A Common Stock upon conversion of the
Notes), shall be deemed not to have been distributed for purposes of this Section 4.06
(and no adjustment to the Conversion Price under this Section 4.06 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 Price shall be made under
this Section 4.06(a)(3). If any such right, option or warrant, including
any such existing rights, options or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such
rights, options 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, options or
warrants without exercise by any of the holders thereof). In addition, in the
event of any distribution (or deemed distribution) of rights, options 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
Price under this Section 4.06 was made, (1) in the case of any such
rights, options or warrants which shall all have been redeemed, purchased by
the Company or repurchased without exercise by any holders thereof, the Conversion
Price shall be readjusted upon such final redemption, purchase by the Company
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 Class A
Common Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all or substantially all holders of Class A
Common Stock as of the date of such redemption or repurchase, and (2) in
the case of such rights, options or warrants which shall have expired or been
terminated without exercise by any holders thereof, the Conversion Price shall
be readjusted as if such rights and warrants had not been issued.


 


(4)                                  In case the Company shall, by dividend or
otherwise, at any time distribute (a “Triggering Distribution”)
to all or substantially all holders of its Class A Common Stock cash, the Conversion
Price shall be decreased so that the same shall equal the price determined by
multiplying such Conversion Price in effect immediately prior to the Business
Day immediately preceding the day on which such Triggering Distribution is
declared (a “Determination Date”) by a
fraction of which:


 


(A)                              the numerator shall be the Current Market
Price per share of the Class A Common Stock (as determined in accordance
with subsection (7) of this Section 4.06(a)) on the
Determination Date less the sum of the Triggering Distribution applicable to
one share of Class A Common Stock (determined on the basis of the number
of shares of Class A Common Stock outstanding on the Determination Date);
and


 


32

















 


(B)                                the denominator shall be such Current Market
Price per share of the Class A Common Stock (as determined in accordance
with subsection (7) of this Section 4.06(a)) on the
Determination Date.


 


Such decrease to become effective immediately
prior to the opening of business on the day following the date on which the
Triggering Distribution is paid.


 


(5)                                  In case the Company or any of its
Subsidiaries shall purchase any shares of the Class A Common Stock by
means of tender offer, then immediately prior to the opening of business on the
day after the last date (the “Expiration Date”)
tenders could have been made pursuant to such tender offer (as it may be
amended) (the last time at which such tenders could have been made on the
Expiration Date is hereinafter sometimes called the “Expiration
Time”), the Conversion Price shall be decreased so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the Expiration Date by a fraction
of which:


 


(A)                              the numerator shall be the product of the
number of shares of Class A Common Stock outstanding (including Purchased
Shares but excluding any shares held in the treasury of the Company)
immediately prior to the Expiration Time multiplied by the Current Market Price
per share of the Class A Common Stock (as determined in accordance with
subsection (7) of this Section 4.06(a)) on the Trading Day next
succeeding the Expiration Date; and


 


(B)                                the denominator shall be the sum of (x) the
aggregate consideration (determined as aforesaid) payable to stockholders based
on the acceptance (up to any maximum specified in the terms of the tender
offer) of all shares validly tendered 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 Class A Common Stock outstanding (less any
Purchased Shares and excluding any shares held in the treasury of the Company)
immediately prior to the Expiration Time and the Current Market Price per share
of Class A Common Stock (as determined in accordance with subsection (7) of
this Section 4.06(a)) on the Trading Day next succeeding the Expiration
Date.


 


For purposes of this Section 4.06(a)(5),
the aggregate consideration in any such tender offer shall equal the sum of the
aggregate amount of cash consideration and the aggregate fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers’ Certificate
delivered to the Trustee and the Conversion Agent) of any other consideration
payable in such tender offer. Such decrease will become effective immediately
prior to the opening of business on the day following the Expiration Date. In
the event that the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable law from
effecting any or all such purchases or any or all such purchases are rescinded,
the Conversion Price shall again be adjusted to be the Conversion Price which
would have been in effect based upon the number of shares actually purchased. If
the application of this Section 4.06(a)(5)(B) to any tender offer
would result in an increase in the Conversion Price, no adjustment shall be
made for 


 


33

















 


such tender offer under this Section 4.06(a)(5)(B).
For purposes of this Section 4.06(a)(5), the term “tender offer” shall
mean and include both tender offers and exchange offers, all references to “purchases”
of shares in tender offers (and all similar references) shall mean and include
both the purchase of shares in tender offers and the acquisition of shares
pursuant to exchange offers, and all references to “tendered shares” (and all
similar references) shall mean and include shares tendered in both tender
offers and exchange offers.


 


(6)  If, on the second
anniversary of the date of this Indenture, a Qualifying Public Offering has not
yet occurred, the then-effective Conversion Price shall automatically be
decreased so that, immediately after giving effect to such decrease, Holders of
the then-outstanding Notes will, in the aggregate, be entitled to convert such
Notes into a number of shares of Class A Common Stock equal to the sum of (a) the
aggregate number of shares of Class A Common Stock into which such Notes
were convertible immediately prior to such decrease, plus (b) a number of
shares of Class A Common Stock equal to 2.0% of the then-fully diluted
number of outstanding shares of Common Stock. For purposes of this clause (6),
the then-fully diluted number of outstanding shares of Common Stock shall equal
(i) the aggregate number of shares of Common Stock then outstanding, plus (ii) the
aggregate number of shares of Class A Common Stock into which the
then-outstanding Notes are convertible immediately prior to giving effect to
the adjustment set forth in this clause (6), plus (iii) the aggregate
number of shares of Common Stock into which all other options, warrants and
other securities convertible into or exercisable or exchangeable for shares of
Common Stock may be converted, exercised or exchanged.


 


(7)  For the purpose of
any computation under subsections (2) and (3) of this Section 4.06(a),
the current market price (the “Current Market Price”)
per share of Class A Common Stock on any date shall be deemed to be the
average of the daily closing prices for the 10 consecutive Trading Days
commencing 11 Trading Days before (A) the Determination Date or the
Expiration Date, as the case may be, with respect to distributions or
tender offers under subsection (3) of this Section 4.06(a) or
(B) the record date with respect to distributions, issuances or other
events requiring such computation under subsection (3) or (4) of
this Section 4.06(a). The closing price (the “Closing
Price”) for each day shall be the last reported sales price or, in
case no such reported sale takes place on such date, the average of the
reported closing bid and asked prices in either case on the Nasdaq National
Market or, if the Class A Common Stock is not listed or admitted to
trading on the Nasdaq National Market, on the principal national securities
exchange on which the Class A Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on the Nasdaq National Market or any
national securities exchange, the last reported sales price of the Class A
Common Stock as quoted on Nasdaq or, in case no reported sales takes place, the
average of the closing bid and asked prices as quoted on Nasdaq or any
comparable system or, if the Class A Common Stock is not quoted on Nasdaq
or any comparable system, the closing sales price or, in case no reported sale
takes place, the average of the closing bid and asked prices, as furnished by
any two members of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose. If no such prices
are available, the Current Market Price per share shall be the fair value of a share
of Class A Common Stock as reasonably determined by the Board of Directors
(which shall be evidenced by an Officers’ Certificate delivered to the
Trustee), in consultation 


 


34

















 


with a financial advisor the Company
determines in good faith is reasonably proficient in valuing equity interests.


 


(8)  In any case in
which this Section 4.06 shall require that an adjustment be made following
a record date or a Determination Date or Expiration Date, as the case may be,
established for purposes of this Section 4.06, the Company may elect
to defer (but only until five Business Days following the filing by the Company
with the Trustee of the certificate described in Section 4.6) issuing to
the Holder of any Note converted after such record date or Determination Date
or Expiration Date the shares of Class A Common Stock and other capital
stock of the Company issuable upon such conversion over and above the shares of
Class A Common Stock and other capital stock of the Company issuable upon
such conversion only on the basis of the Conversion Price prior to adjustment;
and, in lieu of the shares the issuance of which is so deferred, the Company
shall issue or cause its transfer agents to issue due bills or other appropriate
evidence prepared by the Company of the right to receive such shares. If any
distribution in respect of which an adjustment to the Conversion Price is
required to be made as of the record date or Determination Date or Expiration
Date therefor is not thereafter made or paid by the Company for any reason, the
Conversion Price shall be readjusted to the Conversion Price which would then
be in effect if such record date had not been fixed or such effective date or
Determination Date or Expiration Date had not occurred.


 


For purposes of this Section 4.06, “record
date” shall mean, with respect to any dividend, distribution or other
transaction or event in which the holders of Class A Common Stock have the
right to receive any cash, securities or other property or in which the Class A
Common Stock (or other applicable security) is exchanged or converted into any
combination of cash, securities or other property, the date fixed for
determination of stockholders entitled to receive such cash, security or other
property (whether or not such date is fixed by the Board of Directors or by
statute, contract or otherwise).


 


Section 4.07.                         No
Adjustment.


 


No
adjustment need be made for (a) issuances of Class A Common Stock
upon conversion of any Class B Common Stock or pursuant to a Company plan
for reinvestment of dividends or interest or (b) a change in the par value
or a change to no par value of the Class A Common Stock.


 


Section 4.08.                         Adjustment
for Tax Purposes.


 


The
Company shall be entitled to make such decreases in the Conversion Price, in
addition to those required by Section 4.06, as it in its discretion shall
determine to be advisable in order that any stock dividends, subdivisions of
shares, distributions of rights to purchase stock or securities or distributions
of securities convertible into or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable.


 


Section 4.09.                         Notice
of Conversion Price Adjustment.


 


Whenever
the Conversion Price or conversion privilege is adjusted, the Company shall
promptly mail to Noteholders a notice of the adjustment and file with the
Trustee an Officers’ 


 


35

















 


Certificate briefly stating the facts requiring the adjustment and the
manner of computing it. Unless and until the Trustee shall receive an Officers’
Certificate setting forth an adjustment of the Conversion Price, the Trustee may assume
without inquiry that the Conversion Price has not been adjusted and that the
last Conversion Price of which it has knowledge remains in effect.


 


Section 4.10.                   Notice of Certain Transactions.


 


In the event that:


 


(1)                                  the Company takes any action which would
require an adjustment in the Conversion Price;


 


(2)                                  the Company consolidates or merges with, or
transfers all or substantially all of its property and assets to, another
corporation and shareholders of the Company must approve the transaction; or


 


(3)                                  there is a dissolution or liquidation of the
Company;


 


the Company shall mail to Holders and file
with the Trustee a notice stating the proposed record or effective date, as the
case may be. The Company shall mail the notice at least ten Business Days before
such date. Failure to mail such notice or any defect therein shall not affect
the validity of any transaction referred to in clause (1), (2) or (3) of
this Section 4.10.


 


Section 4.11.                   Effect of Reclassification, Consolidation,
Merger or Sale on Conversion Privilege.


 


If
any of the following shall occur, namely: 
(a) any reclassification or change of shares of Class A Common
Stock issuable upon conversion of the Notes (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination, or any other change for which an
adjustment is provided in Section 4.06); (b) any consolidation or
merger or combination to which the Company is a party other than a merger in
which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of Class A Common Stock;
or (c) any sale or conveyance as an entirety or substantially as an
entirety of the property and assets of the Company, directly or indirectly, to
any person, then the Company, or such successor, purchasing or transferee
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, combination, consolidation, merger, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Note then outstanding shall have the right to
convert such Note into the kind and amount of shares of stock and other securities
and property (including cash) receivable upon such reclassification, change,
combination, consolidation, merger, sale or conveyance by a holder of the
number of shares of Class A Common Stock deliverable upon conversion of
such Note immediately prior to such reclassification, change, combination,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion
Price provided for in this Article 4. If, in the case of any such
consolidation, merger, combination, sale or conveyance, the stock or other
securities and property (including cash) 


 


36

















 


receivable thereupon by a holder of Class A Common Stock include
shares of stock or other securities and property of a person other than the
successor, purchasing or transferee corporation, as the case may be, in
such consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other person and shall
contain such additional provisions to protect the interests of the Holders of
the Notes as the Board of Directors shall reasonably consider necessary by reason
of the foregoing. The provisions of this Section 4.11 shall similarly
apply to successive reclassifications, changes, combinations, consolidations,
mergers, sales or conveyances.


 


In
the event the Company shall execute a supplemental indenture pursuant to this Section 4.11,
the Company shall promptly file with the Trustee (x) an Officers’ Certificate
briefly stating the reasons therefor, the kind or amount of shares of stock or
other securities or property (including cash) receivable by Holders of the
Notes upon the conversion of their Notes after any such reclassification,
change, combination, consolidation, merger, sale or conveyance, any adjustment
to be made with respect thereto and that all conditions precedent have been
complied with and (y) an Opinion of Counsel that all conditions precedent have
been complied with, and shall promptly mail notice thereof to all Holders.


 


Section 4.12.                         Trustee’s
Disclaimer.


 


The
Trustee shall have no duty to determine when an adjustment under this Article 4
should be made, how it should be made or what such adjustment should be, but may accept
as conclusive evidence of that fact or the correctness of any such adjustment,
and shall be protected in relying upon, an Officers’ Certificate including the
Officers’ Certificate with respect thereto which the Company is obligated to
file with the Trustee pursuant to Section 4.9. The Trustee makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Notes, and the Trustee shall not be responsible for the
Company’s failure to comply with any provisions of this Article 4.


 


The
Trustee shall not be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture executed pursuant to Section 4.11,
but may accept as conclusive evidence of the correctness thereof, and
shall be fully protected in relying upon, the Officers’ Certificate with
respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 4.11.


 


ARTICLE 5.

COVENANTS


 


Section 5.01.                         Payment of
Notes.


 


The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes. Principal,
premium, if any, and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.


 


37

















 


The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to 1% per
annum in excess of the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.


 


Section 5.02.                   Maintenance of Office or
Agency.


 


The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of
the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the
Company 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 of the Trustee.


 


The
Company may also from time to time designate one or more other 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; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, The City of New York, for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.


 


The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.03.


 


Section 5.03.                   Reports.


 


(a)                            Whether or not
required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company shall furnish to the Holders of Notes or cause the
Trustee to furnish to the Holders and will post on the Company’s website for
public availability, within the time periods specified in the SEC’s rules and
regulations, all quarterly and annual consolidated financial statements that
would be required to be filed with the SEC on Forms 10-Q, 10-K and 8-K if the
Company were required to file such reports. All such financial statements will
be prepared in all material respects in accordance with SEC Regulation S-X and
will be accompanied by:  (i) a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” in
substantially the form that would be required if filed with the SEC with a
Form 10-Q or 10-K, as the case may be; (ii) a certification by
the Company’s chief financial officer that no Default has occurred and is
continuing under this Indenture; and (iii) in the case of annual financial
statements, an audit report thereon by the Company’s independent public
accountants.


 


(b)                           For so long as
any Notes remain outstanding, the Company and the Guarantors shall


 


38

















 


(1)  subject to Section 5.03(e) below,
post on the Company’s website for public availability all material information
about the Company and its Subsidiaries, or about Parent, that the Company has
provided to any Holder after the date of this Indenture (other than a Holder
who after the date of this Indenture has entered into a confidentiality or
non-disclosure agreement with the Company); provided, however,
that the Company and the Guarantors shall not be obligated to post information
on the Company’s website solely because such information has been disclosed to
a member of the Company’s Board of Directors pursuant to Section 5.22 of
this Indenture; and


 


(2)  furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


(c)                                  In addition, in
the event that, on or prior to June 30, 2006, Parent has not begun to file
the reports with the SEC that Parent would be required to file if it were
subject to the reporting requirements of section 13 or section 15(d) of
the Exchange Act, the annual interest rate
applicable to the Notes shall increase by 2.0% until such time as Parent has
begun to file such reports.


 


(d)                                 In addition, at
least once each fiscal quarter, the Company shall deliver to the Trustee and to
the Holders, and post on the Company’s website for public availability, an
Officers’ Certificate which shall state, assuming the following is true and
accurate, that to the best of the Company’s knowledge, the Company and its
Subsidiaries are in compliance with all applicable FCC Implementation Milestones and
all FCC rules, regulations and published policies applicable to their
MSS/ATC FCC License, except to the extent that a waiver or extension has been
requested, or as would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its Subsidiaries taken as
a whole.


 


(e)                                  Notwithstanding
this Section 5.03, the Company, Parent or any Guarantor shall not be
required to publicly disclose any information to the extent that it is subject
to a confidentiality, non-disclosure or other similar agreement prohibiting
such disclosure; provided, however, that the
Company and the Guarantors shall use commercially reasonable efforts not to
enter into any such confidentiality agreements that would prevent its
compliance with the other provisions of this Section 5.03. Additionally,
notwithstanding anything in this Section 5.03 to the contrary, the
Company, Parent and the Guarantors shall not be obligated to publicly disclose
(or disclose in a manner reasonably likely to lead to public disclosure
pursuant to Section 5.03(b) or otherwise) any confidential,
non-public information relating to the FCC Licenses and FCC Implementation
Milestones.


 


(f)                                    As used in this
Section 5.03, (x) “FCC Implementation
Milestones” means those milestone requirements and deadlines set
forth in paragraph 38 of the ordering clauses of the ICO License Modification
Order, and as the requirements may be revised by the FCC from time to time
and (y) “ICO License Modification Order” means
the memorandum opinion and order issued by the FCC on May 24, 2005, as
amended on June 9, 2005, that approved the modification of the MSS/ATC FCC
License.


 


39

















 


Section 5.04.                   Compliance Certificate.


 


(a)                            The Company and
each Guarantor (to the extent that such Guarantor is so required under the TIA)
shall deliver to the Trustee, within 90 days after the end of each fiscal year,
an Officers’ Certificate, one of the signatories of which is the Company’s
Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer, stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company and each obligor under
the Notes and this Indenture has kept, observed, performed and fulfilled its obligations
under this Indenture, the Note Guarantee, the Collateral Trust Agreement and
the Collateral Documents, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the Company and each
such obligor has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture, the Notes, the Note Guarantees, the Collateral
Trust Agreement and the Collateral Documents and is not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture, the Notes, the Note Guarantees, the Collateral Trust Agreement
and the Collateral Documents (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company or such obligor is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what action the
Company or such obligor is taking or proposes to take with respect thereto.


 


(b)                           So long as not
contrary to the then current recommendations of the American Institute of Certified
Public Accountants, the year-end financial statements delivered pursuant to Section 5.03(a) above
shall be accompanied by a written statement of the Company’s independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Article 5 or Article 6
hereof or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.


 


(c)                            The Company
shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of any Event of Default, an Officers’
Certificate specifying such Event of Default and what action the Company is
taking or proposes to take with respect thereto.


 


Section 5.05.                   Taxes.


 


The
Company shall pay, and shall cause each of its Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect to the
Holders of the Notes.


 


40

















 


Section 5.06.                   Stay, Extension and Usury Laws.


 


The
Company and each of the Guarantors 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 wherever enacted, now or at any time hereafter in force, that may affect
the covenants or the performance of this Indenture; and the Company and each of
the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.


 


Section 5.07.                         Restricted
Payments.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:  (i) declare or pay any
dividend or make any other payment or distribution on account of its Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Company or any Subsidiary of the Company)
or to the direct or indirect holders of its Equity Interests in their capacity
as such, other than dividends or distributions payable (a) in Equity
Interests (other than Disqualified Stock) of the Company) (b) to the Company
or any Subsidiary of the Company, or (c) in the case of dividends or
distributions payable by any Subsidiary of the Company, pro rata
to the holders of such Subsidiary’s Equity Interests; (ii) purchase,
redeem or otherwise acquire or retire for value (including without limitation,
in connection with any merger or consolidation involving the Company) any
Equity Interests of the Company or any direct or indirect parent of the
Company; (iii) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any Indebtedness of
the Company or any of its Subsidiaries that is contractually subordinated to
the Notes or any Note Guarantee (excluding any intercompany Indebtedness
between or among the Company and any of its Subsidiaries), except a payment of
interest or principal at Stated Maturity; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as “Restricted
Payments”), except as provided in the following paragraph.


 


So
long as no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof, the foregoing provisions shall not
prohibit (i) the making of any Restricted Payment in exchange for, or out
of the net cash proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of, Equity Interests of the Company (other than
Disqualified Stock) or from the substantially concurrent contribution of common
equity capital to the Company; (ii) the redemption, repurchase, defeasance
or other acquisition or retirement for value of Indebtedness of the Company or
its Subsidiaries that is contractually subordinated or subordinated with
respect to security interests to the Notes or any Note Guarantee with the net
cash proceeds from a substantially concurrent incurrence of Permitted
Refinancing Indebtedness; (iii) the repurchase of Equity Interests of the
Company deemed to occur upon the exercise of stock options to the extent such
Equity Interests represent a portion of the exercise price of those stock
options; and (iv) the making of any
Restricted Payment from the Company to Parent to extinguish intercompany
receivables between Parent, on the one hand, and 


 


41

















 


the Company or any of its Subsidiaries, on the other hand, as
contemplated on the date of the Indenture by Section 5.1(c)(ii) of
the Collateral Trust Agreement.


 


The
amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Subsidiary, as the
case may be, pursuant to the Restricted Payment. The fair market value of
any non-cash Restricted Payment shall be determined by the Board of Directors
whose resolution with respect thereto shall be delivered to the Trustee, such
determination to be based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national standing if such fair market
value exceeds $5.0 million. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers’ Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this Section 5.07 were computed,
together with a copy of any fairness opinion or appraisal required by this
Indenture.


 


Section 5.08.                         Dividend and
Other Payment Restrictions Affecting Subsidiaries.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise permit, cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any
Subsidiary to (a)(i) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Subsidiaries or with respect to any
other interest or participation in, or measured by, its profits or (ii) pay
any indebtedness owed to the Company or any of its Subsidiaries, (b) make
loans or advances to the Company or any of its Subsidiaries or (c) sell,
lease or transfer any of its properties or assets to the Company or any of its
Subsidiaries, except for such encumbrances or restrictions existing under or by
reasons of (i) this Indenture, the Notes and the Note Guarantees; (ii) applicable
law rule, regulation or order; (iii) customary non-assignment provisions
in contracts and licenses entered into in the ordinary course of business; (iv) any
agreement for the sale or other disposition of a Subsidiary that restricts
distributions by that Subsidiary pending the sale or other disposition; (v) Liens
permitted to be incurred under the provisions of Section 5.12 hereof that
limit the right of the debtor to dispose of the assets subject to such Liens; (vii) provisions
limiting the disposition or distribution of assets or property in joint venture
agreements, asset sale agreements, sale-leaseback agreements, stock sale
agreements and other similar agreements entered into with the approval of the
Company’s Board of Directors, which limitation is applicable only to the assets
that are the subject of such agreements; and (viii) restrictions on cash
or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business.


 


Section 5.09.                         Incurrence of
Indebtedness and Issuance of Preferred Stock.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to
(collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company shall not issue any Disqualified
Stock and shall not permit any of its Subsidiaries to issue any shares of
preferred stock.


 


The
provisions of the first paragraph of this Section 5.09 shall not prohibit
the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):


 


42

















 


(i)                                     the incurrence by the Company, and the
Guarantee thereof by the Guarantors, of additional Indebtedness and letters of
credit under the Working Capital Facility in an aggregate principal amount at
any one time outstanding under this clause (i) (with letters of
credit being deemed to have a principal amount equal to the maximum potential
liability of the Company thereunder) not to exceed $40.0 million, less the
aggregate amount of all Net Proceeds of Asset Sales applied by the Company to
repay any Indebtedness under the Working Capital Facility and effect a
corresponding permanent commitment reduction thereunder pursuant to Section 5.10
hereof;


 


(ii)                                  the incurrence by the Company, and the
Guarantee thereof by the Guarantors, of (a) Indebtedness represented by
the Initial Notes on the date of the Indenture in an aggregate principal amount
not to exceed $650 million, and (b) any Additional Notes issued as interest
on such Initial Notes pursuant to the provisions described in Paragraph 1
of the Form of Note and (c) Permitted Refinancing Indebtedness in
respect of any of the foregoing clauses (a) and (b);


 


(iii)                               the incurrence by the Company or any of its
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace, defease or
discharge any Indebtedness (other than intercompany Indebtedness) that was
permitted by this Indenture to be incurred pursuant to this clause (iii) or
clause (ix) (subject to the right of first offer provisions thereunder) of
this paragraph;


 


(iv)                              the incurrence by the Company or any of its
Subsidiaries of intercompany Indebtedness between or among the Company and any
of its Subsidiaries; provided, however,
that (a) such Indebtedness is expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Notes and the Note
Guarantees and (b)(A) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person other
than the Company or a Subsidiary thereof or (B) any sale or other transfer
of any such Indebtedness to a Person that is not either the Company or a
Subsidiary thereof shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company or such Subsidiary, as the case may be,
that was not permitted by this clause (iv);


 


(v)                                 the issuance by any of the Company’s
Subsidiaries to the Company or to any of its Subsidiaries of shares of
preferred stock; provided, however, that any (a) subsequent
issuance or transfer of Equity Interests that results in any such preferred
stock being held by a Person other than the Company or a Subsidiary of the
Company, or (b) sale or other transfer of any such preferred stock to a
Person that is not either the Company or a Subsidiary of the Company, will be
deemed, in each case, to constitute an issuance of such preferred stock that
was not permitted by this clause (v);


 


(vi)                              the incurrence by the Company or any of its
Subsidiaries of Hedging Obligations in the ordinary course of business (other
than for speculative purposes);


 


43

















 


(vii)                           the incurrence by the Company or any of its
Subsidiaries of Indebtedness in respect of workers’ compensation claims,
self-insurance obligations, bankers’ acceptances, performance and surety bonds
in the ordinary course of business;


 


(viii)                        the incurrence by the Company or any of its
Subsidiaries of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds, so long as such Indebtedness is covered
within five business days; and


 


(ix)                                so long as no Default has occurred and is
continuing and the Company has complied with the right of first offer
provisions set forth in the next succeeding paragraph, the incurrence by the
Company, and the Guarantee thereof by the Guarantors, of additional Indebtedness
in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness (subject to the
right of first offer provision hereunder) incurred to renew, refund, refinance
or replace, defease or discharge any Indebtedness incurred pursuant to this clause (ix),
not to exceed $200.0 million, provided that (a) such
Indebtedness, and the Guarantees thereof, must be expressly subordinated to the
prior payment in full in cash of all Obligations with respect to the Notes and the
Note Guarantees; (b) such Indebtedness must (1) mature no earlier than
91 days after the maturity of the Notes, (2) bear cash interest (or any
similar payments), if at all, in an amount not to exceed 7.5% per annum and (3) prohibit
the payment of cash interest (and any similar payments) during any period in
which the Company has exercised its option to pay interest on the Notes in the form of
Additional Notes, or if the Company has Defaulted in the payment of interest on
the Notes; and (c) a portion of the proceeds of any issuance of such
Indebtedness must be applied by the Company to create an escrow account to fund
at least the first two years of cash interest (and any similar payment) payable
on such Indebtedness.


 


Prior
to any issuance by the Company of any Indebtedness pursuant to clause (ix) of
the definition of Permitted Debt (the “new Indebtedness”),
the Company shall first offer to issue and sell the new Indebtedness to each
Holder in accordance with the following provisions:


 


(1) The Company shall
deliver a written notice (the “clause (1) debt
notice”) to the Trustee and the Holders, which notice shall state:


 


(a) the Company’s bona fide intention to issue the new Indebtedness;


 


(b) the amount of the
new Indebtedness to be issued by the Company; and


 


(c) the price, interest
rate and a summary of the material terms upon which the Company proposes to
issue the new Indebtedness.


 


(2) The Company shall
negotiate in good faith with the Holders of the Notes to issue and sell to such
Holders the Indebtedness indicated in the clause (1) debt notice. Within
30 days after receipt of the clause (1) debt notice, each Holder may deliver
to the Company a notice (each, a “clause (2) debt
notice”) pursuant to which such Holder irrevocably elects to
purchase, at the price and on the terms negotiated pursuant to the preceding
sentence, all or a specified amount of the new Indebtedness proposed to be
issued according to the clause (1) debt notice. In 


 


44

















 


connection with any negotiation pursuant to
the first sentence of this clause (2), Holders of a plurality of the Notes
shall be entitled to control such negotiations on behalf of the Holders; provided, however, that
no Holder shall be prohibited from making any bona fide
offer to the Company pursuant to this clause (2).


 


(3) If, within 30 days
after receipt of the clause (i) notice, Holders elect to purchase at
least 100% of the new Indebtedness proposed to be issued in the clause (1) debt
notice, then, on a date selected by the Company not less than five nor more
than 20 days following the expiration date for delivery of the clause (2) debt
notices, the Company shall issue, and the Holders so electing shall purchase,
the new Indebtedness, provided that
if Holders have elected to purchase more than 100% of the new Indebtedness
proposed to be issued, the Company shall issue the new Indebtedness in
accordance with the following procedures:


 


(a) each Holder who
elected to purchase an amount of the new Indebtedness not greater than its Pro
Rata Amount of the new Indebtedness (collectively, the “clause (a) debt
holders”) shall be allocated the amount of the new Indebtedness that
it elected to purchase;


 


(b) each Holder who
elected to purchase an amount of the new Indebtedness greater than its Pro Rata
Amount of the new Indebtedness (collectively, the “clause (b) debt
holders”) shall initially be allocated an amount of the new
Indebtedness equal to the lesser of (i) the amount of the new Indebtedness
that such clause (b) debt holder elected to purchase and (ii) the
aggregate amount of the new Indebtedness not allocated to clause (a) debt
holders, multiplied by a fraction, the numerator of which is the aggregate
principal amount of the Notes held by such clause (b) debt holder and
the denominator of which is the aggregate principal amount of the Notes held by
all clause (b) debt holders;


 


(c) each clause (b) debt
holder who elected to purchase an amount of the new Indebtedness greater than
the amount it was allocated pursuant to clause (b) (collectively, the
“clause (c) debt holders”)
shall be allocated additional amounts of the new Indebtedness in successive
allocation rounds pursuant to this clause (c) where, in each such
allocation round (each, a “clause (c) debt allocation
round”), such clause (c) debt holder shall be allocated an
additional amount of the new Indebtedness equal to the lesser of (i) an
amount of the new Indebtedness that, when added to the amount of the new
Indebtedness that such clause (c) debt holder was allocated pursuant
to clause (b) above or pursuant to previous clause (c) debt
allocation rounds, would not exceed the total amount of the new Indebtedness
that such clause (c) debt holder elected to purchase, and (ii) the
aggregate amount of the new Indebtedness not yet allocated pursuant to clause (a),
clause (b) or prior clause (c) debt allocation rounds,
multiplied by a fraction, the numerator of which is the aggregate principal
amount of the Notes held by such clause (c) debt holder and the
denominator of which is the aggregate principal amount of the Notes held by all
clause (c) debt holders receiving additional allocations in such clause (c) debt
allocation round.


 


(4) If Holders elect to
purchase less than 100% of the new Indebtedness proposed to be issued in the clause (1) debt
notice, then the Company may, during the 90 day period following the expiration
date for delivery of the clause (2) debt notices, issue and sell the
new Indebtedness on terms no less favorable to the Company than the last
proposal made by Holders of the Notes to the Company pursuant to clause (2) above;
provided, however, that if the Holders
have elected 


 


45

















 


to purchase at least $100.0 million of the
new Indebtedness, then, on a date selected by the Company not less than five
nor more than 20 days following the expiration date for delivery of the clause (2) debt
notices, the Company shall issue, and the Holders so electing shall purchase,
such amount of the new Indebtedness, in which case the Company may only
issue and sell the remaining amount of the new Indebtedness pursuant to this clause (4).


 


Except with respect to the
payment of interest on the Notes in the form of Additional Notes, for purposes
of determining compliance with this Section 5.09, the accrual of interest,
the accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with
the same terms, and the reclassification of preferred stock as Indebtedness due
to a change in accounting principles shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock under this Section 5.09.


 


The amount of any
Indebtedness outstanding as of any date shall be:


 


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


 


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


 


(3) in respect of
Indebtedness of another Person secured by a Lien on the assets of the specified
Person, the lesser of (a) the Fair Market Value of such assets at the date
of determination; and (b) the amount of the Indebtedness of the other
Person.


 


Upon any replacement or
refinancing of any Working Capital Facility or any Indebtedness permitted to be
incurred pursuant to clause (ii) of the definition of “Permitted Debt”,
or any portion thereof, with a lender that does not become a party to the
Collateral Trust Agreement, the Trustee shall enter into an intercreditor or
collateral trust agreement with such lender with terms that are not in any
respect more adverse to the Holders of Notes than those contained in the
Collateral Trust Agreement.


 


For
purposes of determining compliance with this Section 5.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (ix) above,
the Company shall, in its sole discretion, classify such item of Indebtedness
in any manner that complies with this Section 5.09 and such item of
Indebtedness shall be treated as having been incurred pursuant to only one of
such clauses. Accrual of interest shall not be deemed to be an incurrence of
Indebtedness for purposes of this Section 5.09.


 


Section 5.10.                         Asset Sales and
Events of Loss.


 


The
Company shall not, and shall not permit any of its Subsidiaries to:


 


(i) sell,
lease, convey or otherwise dispose of any assets or rights other than the sale,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole; or


 


(ii) notwithstanding
the foregoing clause (i) to the contrary, lease or otherwise
contractually transfer the right to use all or substantially all of the assets
of the 


 


46

















 


Company
and its Subsidiaries taken as a whole to one or more strategic partners in
connection with a bona fide strategic partnership
for the purpose of providing wireless telecommunications services consistent
with Section 5.13 hereof; or


 


(iii) issue
Equity Interests in any of the Company’s Subsidiaries or sell Equity Interests
in any of its Subsidiaries


 


(each of the foregoing, an “Asset Sale”),
unless:


 


(x)
the Company (or the Subsidiary, as the case may be) receives consideration
at the time of such Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of; and


 


(y)
at least 85% of the consideration received therefor by the Company or such
Subsidiary is in the form of cash; provided, however, that the amount of


 


(A) any
liabilities (as shown on the Company’s most recent consolidated balance sheet
or in the notes thereto), of the Company or any Subsidiary (other than contingent
liabilities or liabilities that are by their terms subordinated in right of
payment or as to security interests to the Notes or any Note Guarantee) that
are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Company or such Subsidiary from further
liability,


 


(B) any
securities, notes or other obligations received by the Company or any such
Subsidiary from such transferee that are contemporaneously, subject to ordinary
settlement periods, converted by the Company or such Subsidiary into cash (to
the extent of the cash received in that conversion), and


 


(C) any
stock or assets received of the Company or any Subsidiary used to acquire (1) all
or substantially all of the assets of, or any Capital Stock of, another
Permitted Business if, after giving effect to any such acquisition of Capital
Stock, the Permitted Business is or becomes a Subsidiary of the Company and a
Guarantor or (2) other assets that are not classified as current assets
under GAAP and that are used or useful in a Permitted Business,


 


in
each case shall be deemed to be cash for purposes of this provision.


 


Notwithstanding the preceding, none of the following items shall be
deemed to be an Asset Sale:


 


(i) any
single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $1.0 million;


 


(ii) the
sale or lease of products, services or accounts receivable by the Company or
any Subsidiary in the ordinary course of business and any sale or other 


 


47

















 


disposition
of damaged, worn-out or obsolete assets by the Company or any Subsidiary in the
ordinary course of business;


 


(iii) the
sale or other disposition by the Company or any Subsidiary of cash or Cash
Equivalents;


 


(iv) a
transfer of assets by the Company to a Subsidiary or by a Subsidiary of the Company
or to another Subsidiary;


 


(v) an
issuance of Equity Interests by a Subsidiary to the Company or to another
Subsidiary of the Company; and


 


(vi) 
any Restricted Payment or Permitted Investment that is permitted by Section 5.07
hereof.


 


Within 365 days after any Asset Sale, the Company (or such Subsidiary) may apply
the Net Proceeds from such Asset Sale, at its option, either (a) to repay
Indebtedness and other Obligations under a Working Capital Facility and to
correspondingly reduce commitments with respect thereto; (b) to acquire
all or substantially all of the assets of, or any Capital Stock of, another
Permitted Business if, after giving effect to any such acquisition of Capital
Stock, the Permitted Business is or becomes a Subsidiary of the Company and a
Guarantor; (c) to make capital expenditures in a Permitted Business; or (d) to
acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business.


 


In addition, within 365 days after the receipt of any Net Proceeds from
an Event of Loss, the Company (or the applicable Subsidiary, as the case may be)
may apply such Net Proceeds: (1) to repay Indebtedness and other
Obligations under the Working Capital Facility and to correspondingly reduce
commitments with respect thereto; (2) to acquire all or substantially all
of the assets of, or any Capital Stock of, another Permitted Business, if,
after giving effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Subsidiary of the Company and a Guarantor; (3) to
make capital expenditures in a Permitted Business; or (4)  to acquire
other assets that are not classified as current assets under GAAP and that are
used or useful in a Permitted Business. Notwithstanding the foregoing, the
Company or a Subsidiary shall be deemed to have applied Net Proceeds from an
Event of Loss within such 365-day period if, within such 365-day period, it has
entered into a binding commitment or agreement to invest such Net Proceeds and
continues to use all commercially reasonable efforts to so apply such Net
Proceeds as soon as practicable thereafter, and that upon any abandonment or
termination of such commitment or agreement after such 365-day period, the Net
Proceeds not applied will constitute Excess Proceeds.


 


Pending the final application of any Net Proceeds from an Asset Sale or
Event of Loss, the Company may temporarily reduce Indebtedness incurred
under a Working Capital Facility or invest such Net Proceeds in cash or Cash
Equivalents.


 


Any Net Proceeds from such Asset Sale or Event of Loss that are not
applied or invested as provided above in this Section 5.10 will be deemed
to constitute “Excess Proceeds”. Within five
days of each date on which the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall commence an Excess Proceeds Offer pursuant to Section 3.02
hereof 


 


48

















 


to all Holders and all holders of other secured Indebtedness that is pari passu in right of payment and as to security interests with
the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets, to purchase the maximum
principal amount of Notes and such other pari passu secured
Indebtedness that may be purchased out of the Excess Proceeds, at an offer
price (except as provided in the next succeeding paragraph) in cash in an
amount equal to 100% of the principal amount thereof plus (i) a pro rata portion of the Escrowed Interest and (ii) accrued
and unpaid interest thereon, if any, to the date of purchase of the Notes in
such Excess Proceeds Offer, in accordance with the procedures set forth in Section 3.02
hereof. To the extent that the aggregate amount of Notes tendered pursuant to
an Excess Proceeds Offer is less than the Excess Proceeds, the Company (or such
Subsidiary) may use such remaining Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and other pari passu secured Indebtedness
tendered into such Excess Proceeds Offer exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes and such other pari passu
secured Indebtedness to be purchased on a pro rata
basis. Upon completion of such Excess Proceeds Offer, the amount of Excess
Proceeds will be deemed to be reset at zero. Any Excess Proceeds Offer shall be
made in compliance with any applicable provisions of the Collateral Trust
Agreement.


 


Notwithstanding
the foregoing, in the event that the Company or any of its Subsidiaries
receives any payments in excess of $100.0 million in connection with any
transaction or series of related transactions described in clause (ii) of
the definition of “Asset Sales” above, the Company shall be permitted to retain
an aggregate amount of such payments equal to (x) $950.0 million, minus (y) the amount of funded capital (including the
proceeds of the Notes) received through the date of such Asset Sale by the
Company and its Subsidiaries, and shall apply any excess to make an Excess
Proceeds Offer as described above within 10 days following the receipt of such
payments; provided, however,
that the offer price in any such Excess Proceeds Offer shall be equal to 107.5%
of the principal amount, plus a pro rata
portion of the Escrowed Interest, plus accrued and unpaid interest to the date
of purchase, and shall be payable in cash.


 


Section 5.11.                         Transactions
with Affiliates.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any contract, agreement, understanding, loan, advance,
transaction or guarantee with, or for the benefit of, any Affiliate of the
Company (each of the foregoing, an “Affiliate Transaction”),
unless (a) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Subsidiary
with an unrelated Person, and (b) the Company delivers to the Trustee (1) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $1.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with clause (a) above
and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the Company; (2) with
respect to any Affiliate Transaction or series of related Affiliate Transactions,
involving aggregate consideration in excess of $5.0 million, an opinion as to
the fairness to the Company or such Subsidiary of such Affiliate 


 


49

















 


Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing; and (3) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, the
consent of Holders of at least a majority of the outstanding Notes, which
consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (i) any employment agreement,
employee benefit plan, officer or director indemnification agreement or any similar
arrangement entered into by the Company or any of its Subsidiaries in the
ordinary course of business and payments made pursuant thereto, (ii) transactions
between or among the Company and/or its Subsidiaries, (iii) Restricted
Payments other than Permitted Investments that do not violate Section 5.07
of this Indenture, (iv) transactions with a Person that is an Affiliate of
the Company solely because the Company owns, directly or through a Subsidiary,
an Equity Interest in, or controls, such Person; (v) payment of reasonable
directors’ fees to Persons who are not otherwise Affiliates of the Company; and
(vi) loans or advances to employees in the ordinary course of business not
to exceed $1.0 million in the aggregate at any one time outstanding, in each
case shall not be deemed Affiliate Transactions.


 


Section 5.12.                         Liens.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly create, incur, assume or suffer to exist any Lien of any kind on any
asset now owned or hereafter acquired, except Permitted Liens.


 


Section 5.13.                         Line of
Business.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, engage in
any business other than Permitted Businesses, except to such extent as would
not be material to the Company and its Subsidiaries taken as a whole.


 


In
addition, all FCC Licenses now owned or hereafter acquired shall be held by the
Company in a License Subsidiary; and no License Subsidiary shall (1) engage
in any business activity other than holding and acquiring FCC Licenses, (2) issue
any preferred stock or incur or suffer to exist any Indebtedness or other
liabilities, other than its Note Guarantee (including, without limitation, by
way of merger, consolidation or other business combination transaction) or (3) transfer,
lease, convey, license, sublicense or otherwise dispose of any FCC License to
any Person other than another License Subsidiary that complies with the
requirements of this covenant; provided, however,
that a License Subsidiary may enter into spectrum agreements and other
agreements relating to the MSS/ATC FCC Licenses if and only to the extent that (a) the
Company is also a party to such agreements; (b) the counterparty under
each such agreement agrees to waive unconditionally any and all claims for
liability against such License Subsidiary and agrees not to seek any damages or
other legal or equitable relief against such License Subsidiary, and (c) the
counterparty and the Company agree that any such claims or request for damages
or other legal or equitable relief may be brought solely against, and
shall be fully Guaranteed by, the Company. Any and all existing FCC Licenses
and any FCC License hereinafter acquired shall be held in a License Subsidiary.


 


50

















 


Section 5.14.                         Corporate
Existence.


 


Subject
to Article 6 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence
of any of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders of the Notes.


 


Section 5.15.                         Offer to
Repurchase Upon Change of Control.


 


(a)                            Upon the
occurrence of a Change of Control, the Company shall make an offer (a “Change of Control Offer”) to each Holder to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of each
Holder’s Notes at a purchase price in cash equal to 107.5% of the aggregate
principal amount thereof plus a pro rata
portion of the Escrowed Interest, plus accrued and unpaid interest thereon, if
any, to the date of purchase, subject to the right of Holders on the relevant
record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”). Within 10 days following any
Change of Control, the Company shall mail a notice to each Holder describing
the transaction or transactions that constitute the Change of Control and stating:  (1) that the Change of Control Offer is
being made pursuant to this Section 5.15 and that all Notes tendered will
be accepted for payment; (2) the purchase price and the purchase date,
which shall be no earlier than 30 days and no later than 60 days from the date
such notice is mailed (the “Change of Control Payment
Date”); (3) that any Note not tendered will continue to accrue
interest; (4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date; (5) that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer will be required to surrender
the Notes, with the form entitled “Option of Holder to Elect Purchase” on
the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the second Business
Day preceding the Change of Control Payment Date; (6) that Holders will be
entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company shall comply with
the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes in
connection with a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with any provisions of this Indenture,
including this Section 5.15, the Company shall comply with the 


 


51

















 


applicable securities laws
and regulations and shall not be deemed to have breached any obligations under
this Indenture, including this Section 5.15, by virtue of such compliance.


 


(b)                           On the Change
of Control Payment Date, the Company shall, to the extent lawful, (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (2) deposit with the Paying Agent an amount equal
to the Change of Control Payment in respect of all Notes or portions thereof so
tendered and (3) deliver or cause to be delivered to the Trustee the Notes
so accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to each Holder of Notes so tendered payment in
an amount equal to the Change of Control Payment for the Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered by such Holder, if any; provided
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce, and mail a notice to
each Holder setting forth, the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.


 


(c)                            Notwithstanding
anything to the contrary in this Section 5.15, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 5.15
and Section 3.02 hereof and all other provisions of this Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.


 


(d)                                 The provisions
of this Section 5.15 shall be applicable upon a Change of Control whether
or not any other provisions of the Indenture are applicable as well.


 


Section 5.16.                         Qualifying
Event.


 


In
the event that a Qualifying Event has not occurred on or prior to the third
anniversary of the date of this Indenture, then, until a Qualifying Event has
occurred: (i) the annual interest rate applicable to the Notes shall
increase by 1.5%, and by an additional 1.5% each 30 days thereafter, to a
maximum annual interest rate of 13.5%; and (ii) all payments of interest
on the Notes shall be made in cash and not in Additional Notes.


 


Section 5.17.                         Maintenance of
Insurance.


 


The
Company shall, and shall cause each of its Subsidiaries to, maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in
the same or similar businesses; provided that,
in any event, the Company shall, and shall cause each of its Subsidiaries
to:  (i) prior to the launch of any
satellite, obtain, with financially sound and reputable insurance companies,
satellite launch insurance for full replacement cost of such satellite; and (ii) prior
to the expiration of any in-orbit coverage provided by such satellite launch
insurance, obtain, with financially sound and reputable insurance companies,
in-orbit insurance for full replacement cost of such satellite.


 


52

















 


Section 5.18.                         Payments for
Consent.


 


Neither
the Company nor any of its Subsidiaries shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to or for the benefit of any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of the Indenture or the Notes unless such consideration is offered
to be paid or is paid to all Holders of the Notes that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.


 


Section 5.19.                         Additional Note
Guarantees.


 


If
the Company or any of its Subsidiaries shall acquire or create another
Subsidiary after the date of this Indenture, then the Company shall (i) cause
such newly acquired or created Subsidiary to execute, concurrently with its
acquisition or creation, a Note Guarantee in the form of a supplemental Indenture,
(ii) cause that newly acquired or created Subsidiary to, concurrently with
its acquisition or creation, execute an instrument of joinder to the Collateral
Trust Agreement, pledge all of its assets, including any After-Acquired
Property, subject to Permitted Liens, as Collateral thereunder, and use its
reasonable best efforts to perfect as promptly as reasonably practical, in
accordance with the Collateral Trust Agreement and other Collateral Documents, the
security interests granted by it under the Collateral Trust Agreement and the
other Collateral Documents and (iii) cause to be delivered an Opinion of
Counsel, in accordance with the terms of this Indenture, to the Trustee and the
Collateral Agent, as to such supplemental Indenture and the validity and
perfection of the security interests granted pursuant to clause (iii) above,
in each case as promptly as reasonably practicable, but in any event within 10 Business
Days of the date on which the Subsidiary was created or acquired.


 


Section 5.20.                         Additional Interest.


 


If
at any time Additional Interest becomes payable by the Company pursuant to the
Registration Rights Agreement, the Company shall promptly deliver to the
Trustee a certificate to that effect and stating (i) the amount of such
Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable pursuant to the terms of the Registration Rights
Agreement. Unless and until a Corporate Trust Officer receives such a
certificate, the Trustee may assume without inquiry that no Additional
Interest under the Registration Rights Agreement is payable. If the Company has
paid Additional Interest directly to the Persons entitled to such Additional
Interest, the Company shall deliver to the Trustee a certificate setting forth
the particulars of such payment.


 


The
failure by the Company to deliver such certificates shall not relieve the
Company in any respect of its obligation to pay such Additional Interest when
due and owing.


 


Section 5.21.                         Right of First Offer
on Sale of Equity Interests.


 


The
Company shall not issue or sell any
Equity Interests unless it has first offered to issue and sell to the Holders a
portion of such Equity Interests (which term, for purposes of this Section 5.21
only, shall include debt securities convertible into or exercisable or
exchangeable for Equity Interests) equal to (x) the aggregate number of shares
of Class A Common Stock (or Conversion Securities, as applicable) then
held by Holders, plus the aggregate number of 


 


53

















 


additional shares of Class A Common
Stock (or Conversion Securities, if applicable) then issuable upon conversion
of all outstanding Notes, divided
by (y) the aggregate number of fully diluted shares of the Company’s Common
Stock (or Conversion Securities, if applicable) then outstanding (including all
shares of Class A Common Stock (or Conversion Securities, as applicable) issuable
upon conversion of the then outstanding Notes) (the result of (x) divided by (y) being the “subject portion”), in accordance with the
following provisions:


 


(1)  The Company shall deliver a written
notice (the “clause (1) equity
notice”) to the Trustee and the Holders, which notice shall state:


 


(a)  the Company’s bona fide intention to issue the Equity
Interests;


 


(b)  the amount of Equity Interests to
be issued by the Company and the amount of the subject portion; and


 


(c)  the price and a summary of the
material terms upon which it proposes to issue such Equity Interests.


 


(2)  The Company shall negotiate in good faith
with the Holders to issue and sell to such Holders the subject portion of the
Equity Interests indicated in the clause (1) equity notice. Within 30
days after receipt of the clause (1) equity notice, each Holder may deliver
a notice (each, a “clause (2) equity
notice”) pursuant to which it irrevocably elects to purchase, at the
price and on the terms negotiated pursuant to the preceding sentence, all or a
specified amount of the subject portion of the Equity Interests proposed to be
issued in the clause (1) equity notice. In connection with any
negotiation pursuant to the first sentence of this clause (2), Holders of
a plurality of the Notes shall be entitled to control such negotiations on
behalf of Holders of the Notes; provided,
however, that no Holder shall be prohibited from making any bona fide offer to the Company pursuant to
this clause (2).


 


(3)  On a date selected by the Company not
less than five nor more than 20 days following the expiration date for delivery
of the clause (2) equity notices, the Company shall issue, and the
Holders electing to purchase any of the subject portion of the Equity
Interests shall purchase, such Equity Interests, provided that if Holders have elected to purchase more than
100% of the subject portion of the Equity Interests proposed to be issued, the
Company shall issue such Equity Interests in accordance with the following
procedures:


 


(a)  each Holder who elected to
purchase an amount of the subject portion of the Equity Interests not greater
than its Pro Rata Amount of such subject portion (collectively, the “clause (a) equity holders”)
shall be allocated the amount of the Equity Interests that it elected to
purchase;


 


(b)  each Holder who elected to
purchase an amount of the subject portion of the Equity Interests greater than
its Pro Rata Amount of such subject portion (collectively, the “clause (b) equity holders”)
shall initially be allocated an amount of the Equity Interests equal to the
lesser of (i) the amount of the Equity Interests that such clause (b) equity
holder elected to purchase, and (ii) the aggregate amount of the subject
portion of the Equity Interests not allocated to clause (a) equity
holders, multiplied by a fraction, the numerator of which is the aggregate
principal amount of the Notes held by such clause (b) equity holder
and the 


 


54

















 


denominator of which is the aggregate
principal amount of the Notes held by all clause (b) equity holders;


 


(c) each clause (b) equity
holder who elected to purchase an amount of the subject portion of the Equity
Interests greater than the amount it was allocated pursuant to clause (b) (collectively,
the “clause (c) equity holders”)
shall be allocated additional amounts of such subject portion in successive
allocation rounds pursuant to this clause (c) where, in each such
allocation round (each, a “clause (c) equity
allocation round”), such clause (c) equity holder shall be
allocated an additional amount of the subject portion of the Equity Interests
equal to the lesser of (i) an amount of the Equity Interests that, when
added to the amount of such Equity Interests that such clause (c) equity
holder was allocated pursuant to clause (b) above or pursuant to
previous clause (c) equity allocation rounds, would not exceed the
total amount of the Equity Interests that such clause (c) equity
holder elected to purchase, and (ii) the aggregate amount of the subject
portion of the Equity Interests not yet allocated pursuant to clause (a), clause (b) or
prior clause (c) equity allocation rounds, multiplied by a fraction,
the numerator of which is the aggregate principal amount of the Notes held by
such clause (c) equity holder and the denominator of which is the aggregate
principal amount of the Notes held by all clause (c) equity holders
receiving additional allocations in such clause (c) equity allocation
round.


 


(4)  The Company may, during the
120-day period following the expiration date for delivery of the clause (2) equity
notices, issue and sell the aggregate amount of Equity Interests indicated in
the clause (1) equity notice, less the portion of such Equity
Interests sold or to be sold to Holders pursuant to clause (3) above,
on terms not materially less favorable to the Company than the last proposal
made by Holders to the Company pursuant to clause (2) above.


 


The foregoing right of first offer will not apply
to: (1) any issuance of the Company’s Class A Common Stock upon
conversion of any Notes, (2) any issuance of Equity Interests upon
conversion, exercise or exchange of any convertible, exercisable or
exchangeable security if the Company has issued such convertible, exercisable
or exchangeable security in accordance with the foregoing provisions; (3) any
issuance of Equity Interests in connection with the issuance of Indebtedness
pursuant to clause (ix) of the definition of Permitted Debt in Section 5.09
of this Indenture; provided that
the Company has complied with the right of first offer provisions related
thereto; (4) any issuance of options or warrants in the ordinary course of
business to officers, directors or employees of the Company or its Subsidiaries
to purchase shares of the Company’s Common Stock, and the issuance of any such
shares upon exercise of any such options; provided,
however, that the aggregate
amount of the Company’s Common Stock issuable upon exercise of such options and
warrants shall not exceed 10% of the Company’s fully diluted Common Stock; (5) any
issuance of options or warrants in the ordinary course of business to
consultants, vendors and others with whom the Company has a bona fide business relationship to
purchase shares of the Company’s Common Stock, and the issuance of any such
shares upon exercise of any such options; provided,
however, that the aggregate
amount of the Company’s Common Stock issuable upon exercise of such options and
warrants shall not exceed 5% of the Company’s fully diluted common stock; and (6) any
underwritten public offering of common stock.


 


55

















 


Section 5.22.                         Appointment of Director.


 


Concurrently
with the issuance of the Notes, the
Company shall have taken all action necessary or appropriate to increase
the size of the Company’s Board of Directors by one director and to elect to
fill such additional board seat by an individual selected by Holders of a
majority of the Notes; provided that unless
a Default or Event of Default has occurred and is continuing, such individual
shall not be a Holder of Notes or an Affiliate of a Holder of Notes.


 


Section 5.23.                         Issuance or
Sale of Subsidiary Stock.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, sell any
Capital Stock of a Subsidiary of the Company, except to the Company or to
another wholly owned Subsidiary of the Company, unless the Company and its
Subsidiaries sell 100% of the Capital Stock of the subject Subsidiary that they
own in accordance with Section 5.10 of this Indenture. In addition, no
Subsidiary of the Company shall issue any Capital Stock, other than to the
Company or another Subsidiary of the Company.


 


Section 5.24.                         Issuance of Class B
Common Stock.


 


ICO
shall not issue, sell or permit the transfer of any shares of its Class B
Common Stock, other than any such shares issued, sold or transferred to Parent.


 


ARTICLE 6.

SUCCESSORS


 


Section 6.01.                         Merger,
Consolidation, or Sale of Assets.


 


The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, consolidate or merge with or into another Person (whether or not
the Company or such Subsidiary is the surviving corporation), or sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Subsidiaries taken as a whole,
including their FCC Licenses, in one or more related transactions, to any other
Person, unless (i) either the Company or such Subsidiary is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than the Company or such Subsidiary) or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States, any
state thereof or the District of Columbia, (ii) the Person formed by or
surviving any such consolidation or merger (if other than the Company or such
Subsidiary) or the Person to which such sale, assignment, transfer, conveyance
or other disposition shall have been made assumes all the obligations of the
Company or such Subsidiary under the Notes or such Subsidiary’s Note Guarantee,
as the case may be, and this Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, (iii) immediately
after such transaction, no Default or Event of Default exists, (iv) the
Company and its Subsidiaries are in full compliance with all applicable FCC
milestones and all other FCC rules, regulations and published policies
applicable to them with respect to their MSS/ATC FCC License, except to the
extent waived by the FCC or as would not, individually or in the aggregate,
have a material adverse effect on the condition 


 


56

















 


(financial or otherwise), results of operations, business or prospects
of the Company and its Subsidiaries taken as a whole; (v) the Collateral contained
in the Person formed by or surviving any such consolidation or merger (if other
than the Company or such Subsidiary) or transferred to the Person to which such
sale, assignment, transfer, conveyance or other disposition has been made (1) continues
to constitute Collateral under this Indenture and the Collateral Trust
Agreement or other Collateral Documents and (2) is subject to a
first-priority Lien, subject to Permitted Liens, in favor of the Trustee for
the benefit of the Holders of the Notes; and (vi) to the extent that the
assets of the Person formed by or surviving any such consolidation or merger
(if other than the Company or such Subsidiary) or to which such sale,
assignment, transfer, conveyance or other disposition has been made are assets
of the type which would constitute Collateral under this Indenture and the
Collateral Trust Agreement or other Collateral Documents, such Person shall
have taken such action as may be reasonably necessary to cause such
property and assets to be made subject to the Lien of the Collateral Trust
Agreement or other Collateral Documents in the manner and to the extent
required in this Indenture. In addition, the Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, lease all or
substantially all of the properties or assets, of the Company and its
Subsidiaries taken as a whole, in one or more related transactions, to any
other Person.


 


The foregoing paragraph in this Section 6.01 shall not apply to (i) a
merger of the Company with an Affiliate with no material assets, liabilities or
operations solely for the purpose of reincorporating the Company in another
jurisdiction; (ii) any
consolidation or merger, or any sale, assignment, transfer, conveyance, lease
or other disposition of assets between or among the Company and its
Subsidiaries; or (iii) any transaction that constitutes an Asset Sale
pursuant to clause (ii) of the definition thereof.


 


Section 6.02.                         Successor Corporation
Substituted.


 


Upon
any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company or any of its Subsidiaries in accordance with Section 6.01
hereof, the successor corporation formed by such consolidation or into or with
which the Company or such Subsidiary is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the “Company,” or to a “Subsidiary”
or “Guarantor” shall refer instead to the successor corporation and not to the
Company or such Subsidiary or Guarantor, as the case may be), and may exercise
every right and power of the Company or such Subsidiary or Guarantor under this
Indenture with the same effect as if such successor Person had been named as
the Company or a Subsidiary or Guarantor herein; provided,
however, that the predecessor Person shall not be relieved from the
obligation to pay the principal of and interest on the Notes, except in the
case of a sale of all or substantially all assets that meets the requirements
of Section 6.01 hereof.


 


57

















 


ARTICLE 7.

DEFAULTS AND REMEDIES


 


Section 7.01.                         Events of
Default.


 


An
“Event of Default” occurs if:


 


(a)                            the Company
defaults in the payment when due of interest on the Notes and such default
continues for a period of 30 days;


 


(b)                           the Company
defaults in the payment when due of principal of or premium, if any, on the
Notes when the same becomes due and payable at maturity, upon redemption
(including in connection with an offer to purchase) or otherwise;


 


(c)                            the Company or
any of its Subsidiaries fails to comply with any of the provisions of Section 5.07,
5.09, 5.10, 5.15, 5.22 or 6.01 hereof;


 


(d)                           the Company or
any Guarantor fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture, the Notes, the
Note Guarantees or the Collateral Documents for 30 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes (including Additional Notes, if any) then outstanding
voting as a single class;


 


(e)                            a default
occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of this
Indenture, which default (i) is caused by a failure to pay principal of,
or interest or premium, if any, on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or (ii) results in the acceleration
of such Indebtedness prior to its express maturity and, in each case, the
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $10.0 million or more;


 


(f)                                    a final
judgment or final judgments for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any of its Subsidiaries
and such judgment or judgments remain undischarged, unpaid or unstayed for a
period (during which execution shall not be effectively stayed) of 60 days, provided that the aggregate of all such undischarged
judgments exceeds $10.0 million;


 


(g)                                 a revocation,
cancellation or relinquishment of any of the Company’s or its Subsidiaries’
MSS/ATC FCC Licenses, which action is not subject to further appeal at the FCC;


 


(h)                                 except as
otherwise permitted by this Indenture, any Note Guarantee is held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to
be in full force and effect, or any Guarantor, or any Person acting on behalf
of any Guarantor, denies or disaffirms its obligations under its Note Guarantee;


 


58

















 


(i)                                     except as
otherwise permitted by this Indenture, the Collateral Trust Agreement, any
Collateral Document is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect; provided that it shall not be an Event of Default under this
clause (i) if the sole result is that any Lien purported to be
granted on any Collateral, individually or in the aggregate, having a Fair
Market Value of not more than $25.0 million, ceases to be an enforceable and
perfected first priority Lien, subject only to Permitted Liens;


 


(j)                                     except as
otherwise permitted by this Indenture, any Lien purported to be granted under
the Collateral Trust Agreement or any Collateral Document on any Collateral
having a Fair Market Value, individually or in the aggregate, in excess of
$25.0 million is held in any judicial proceeding not to be an enforceable and
perfected first priority Lien or ceases for any reason to be in full force and
effect, subject only to Permitted Liens;


 


(k)                                  the Company or
any of its Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary, pursuant to or within the
meaning of Bankruptcy Law:


 


(i)                                     commences a voluntary case,


 


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


 


(iii)                               consents to the appointment of a custodian,
receiver, trustee, assignee, liquidator or similar official under Bankruptcy
Law of it or for all or substantially all of its property,


 


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


 


(v)                                 generally is not paying its debts as they
become due; or


 


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


 


(i)                                     is for relief against the Company or any of
its Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case;


 


(ii)                                  appoints a custodian, receiver, trustee,
assignee, liquidator or similar official under Bankruptcy Law of the Company or
any of its Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary, or for all or substantially
all of the property of the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary; or


 


(iii)                               orders the liquidation of the Company or any
of its Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary;


 


59

















 


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


 


Section 7.02.                         Acceleration.


 


If
any Event of Default (other than an Event of Default specified in clause (k)
or (l) of Section 7.01 hereof with respect to the Company, any Significant
Subsidiary or any group of Significant Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes plus any remaining Escrowed
Interest to be due and payable immediately. Upon any such declaration, the
Notes plus any remaining Escrowed Interest shall become due and payable
immediately. Notwithstanding the foregoing, if an Event of Default specified in
clause (k) or (l) of Section 7.01 hereof occurs with respect to the
Company, any of its Significant Subsidiaries or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary, all outstanding
Notes plus any remaining Escrowed Interest shall be due and payable immediately
without further action or notice.


 


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


 


Section 7.03.                         Other Remedies.


 


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


 


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


 


Section 7.04.                         Waiver of Past
Defaults.


 


Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (provided,
however, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related Payment Default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.


 


60

















 


Section 7.05.                         Control by
Majority.


 


Holders
of a majority in principal amount of the then outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or the Collateral Trust Agreement that the Trustee
determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability.


 


Section 7.06.                         Limitation on
Suits.


 


Except
to enforce the right to receive payment of principal of, or premium, if any, or
interest on, the Notes, a Holder of a Note may pursue a remedy with
respect to this Indenture or the Notes only if:


 


(a)                                  the Holder of a
Note gives to the Trustee written notice of a continuing Event of Default;


 


(b)                                 the Holders of
at least 25% in principal amount of the then outstanding Notes (including any
Additional Notes) make a written request to the Trustee to pursue the remedy;


 


(c)                                  such Holder of
a Note or Holders of Notes offer and, if requested, provide to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss, liability or
expense;


 


(d)                                 the Trustee
does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and


 


(e)                                  during such
60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.


 


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


 


Section 7.07.                         Rights of
Holders of Notes to Receive Payment.


 


Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and interest on such Note, on or
after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder; provided that a
Holder shall not have the right to institute any such suit for the enforcement
of payment if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, under applicable law, result in the surrender,
impairment, waiver or loss of the Lien of the Indenture upon any property
subject to such Lien.


 


61

















 


Section 7.08.                         Collection Suit
by Trustee.


 


If
an Event of Default specified in Section 7.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company and the
Subsidiaries for the whole amount of principal of, premium, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


Section 7.09.                         Trustee May File
Proofs of Claim.


 


The
Trustee is authorized 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 (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes and the Note Guarantees, including
the Guarantors), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 8.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 8.07
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 7.10.                         Priorities.


 


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


 


First:                   to the Trustee, its agents
and attorneys for amounts due under Section 8.07 hereof, including payment
of all compensation, expense and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection;


 


Second:     to Holders of Notes for
amounts due and unpaid on the Notes for principal, premium, if any, and
interest, ratably, without preference or priority of any 


 


62

















 


kind,
according to the amounts due and payable on the Notes for principal, premium,
if any and interest, respectively; and


 


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


 


The
Trustee may fix a record date and payment date for any payment to Holders
of Notes pursuant to this Section 7.10.


 


Section 7.11.                         Undertaking for
Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
of a Note pursuant to Section 7.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.


 


ARTICLE 8.

TRUSTEE


 


Section 8.01.                         Duties of
Trustee.


 


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


 


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


 


(i)                                     the duties of the Trustee shall be determined
solely by the express provisions of this Indenture, the Collateral Trust
Agreement and the Collateral Documents, and the Trustee need perform only
those duties that are specifically set forth in this Indenture, the Collateral
Trust Agreement and the Collateral Documents, and no others, and no implied
covenants or obligations shall be read into this Indenture, the Collateral
Trust Agreement and the Collateral Documents, against the Trustee; and


 


(ii)                                  in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture,
the Collateral Trust Agreement and the Collateral Documents. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture, the Collateral Trust
Agreement and the Collateral Documents.


 


63

















 


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


 


(i)                                     this paragraph does not limit the effect of
paragraph (b) of this Section 8.01(c);


 


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


 


(iii)                               the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05 hereof.


 


(d)                                 Whether or not
therein expressly so provided, every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (a), (b), and (c) of
this Section 8.01(c).


 


(e)                                  No provision of
this Indenture shall require the Trustee to expend or risk its own funds or
incur any liability. The Trustee shall be under no obligation to exercise any
of its rights and powers under this Indenture at the request of any Holder,
unless such Holder shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.


 


(f)                                    The Trustee
shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.


 


Section 8.02.                         Rights of
Trustee.


 


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


 


(b)                                 Before the
Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.


 


(c)                                  The Trustee may act
through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.


 


(d)                                 The Trustee
shall not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it
by this Indenture.


 


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(e)                                  Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company or a Guarantor shall be sufficient if
signed by an Officer of the Company or such Guarantor.


 


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


 


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


 


(h)                                 The rights,
privileges, 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.


 


(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 the Indenture, which Officers’ Certificate may be
signed by any person authorized to sign an Officers’ Certificate, including any
person specified as to authorized in any such certificate previously delivered
and not suspended.


 


Section 8.03.                         Individual
Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights
and duties. The Trustee is also subject to Sections 8.10 and 8.11 hereof.


 


Section 8.04.                         Trustee’s
Disclaimer.


 


The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company’s use of the proceeds from the Notes or any money
paid to the Company or upon the Company’s direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.


 


Section 8.05.                         Notice of
Defaults.


 


If
a Default or Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default
or Event of Default within 90 


 


65

















 


days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, premium, if any, or interest on any Note,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.


 


Section 8.06.                         Reports by
Trustee to Holders of the Notes.


 


Within
60 days after each July 15 beginning with the July 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA § 313(a) (but if no event
described in TIA § 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA § 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA § 313(c).


 


A
copy of each report at the time of its mailing to the Holders of Notes shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.


 


Section 8.07.                         Compensation
and Indemnity.


 


The
Company shall pay to the Trustee from time to time compensation for its
acceptance of this Indenture and services hereunder as shall be agreed in
writing by the Company and the Trustee. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


The
Company shall indemnify the Trustee against any and all losses, liabilities,
damages, claims or expenses incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company
(including this Section 8.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence, willful misconduct or bad faith. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.


 


The
obligations of the Company under this Section 8.07 shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.


 


To
secure the Company’s payment obligations in this Section, the Trustee shall
have a Lien prior to the Notes on all money or property held or collected by
the Trustee, except that 


 


66






 













 


held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 7.01(k)
or (l) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under any Bankruptcy Law.


 


The Trustee shall comply
with the provisions of TIA § 313(b)(2) to the extent applicable.


 


Section 8.08.                         Replacement of
Trustee.


 


A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee’s acceptance of appointment and taking of office as provided
in this Section.


 


The Trustee may resign in
writing at any time and be discharged from the trust hereby created by so
notifying the Company. The Holders of a majority in principal amount of the
then outstanding Notes may remove the Trustee by so notifying the Trustee and
the Company in writing. The Company may remove the Trustee if:


 


(a)           the Trustee
fails to comply with Section 8.10 hereof;


 


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


 


(c)           a custodian,
receiver, trustee, assignee, liquidator or similar official under Bankruptcy
Law or public officer takes charge of the Trustee or its property; or


 


(d)           the Trustee
becomes incapable of acting.


 


If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the
Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount
of the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.


 


If a successor Trustee does
not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company, or the Holders of at least 10% in
principal amount of the then outstanding Notes may petition any court of
competent jurisdiction, at the expense of the Company, for the appointment of a
successor Trustee.


 


If the Trustee, after
written request by any Holder who has been a Holder for at least six months,
fails to comply with Section 8.10, such Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.


 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Thereupon, the resignation or removal of the retiring Trustee
shall 


 


67

















 


become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 8.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 8.08, the Company’s obligations under Section 8.07 hereof shall
continue for the benefit of the retiring Trustee.


 


Section 8.09.                         Successor
Trustee by Merger, etc.


 


If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee; provided, that
such successor corporation shall otherwise be eligible and qualified under this
Article Eight.


 


Section 8.10.                         Eligibility;
Disqualification.


 


There shall at all times be
a Trustee hereunder that is a corporation organized and doing business under
the laws of the United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power, that is subject
to supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition.


 


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


 


Section 8.11.                         Preferential
Collection of Claims Against Company.


 


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


 


ARTICLE
9.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 9.01.                         Option to
Effect Legal Defeasance or Covenant Defeasance.


 


The Company may, at the
option of its Board of Directors evidenced by a resolution set forth in an
Officers’ Certificate, at any time, elect to have either Section 9.02 or 9.03
hereof be applied to all outstanding Notes and all obligations of the
Guarantors discharged with respect to the Note Guarantees upon compliance with
the conditions set forth below in this Article Nine.


 


Section 9.02.                         Legal
Defeasance and Discharge.


 


Upon the Company’s exercise
under Section 9.01 hereof of the option applicable to this Section 9.02, the
Company shall, subject to the satisfaction of the conditions set forth in
Section 9.04 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Notes and all obligations of the Guarantors
discharged with respect to the Note 


 


68

















 


Guarantees on the date the
conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and the Note Guarantees and cured all
existing Events of Default, which Notes and Note Guarantees shall thereafter be
deemed to be “outstanding” only for the purposes of Section 9.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes, the Note Guarantees, the
Collateral Documents and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:  (a)
the rights of Holders of outstanding Notes to receive solely from the trust
fund described in Section 9.04 hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due, (b) the Company’s and Guarantors’ obligations
with respect to such Notes and Note Guarantees under Article 2 and Section 5.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company’s and the Guarantors’ obligations in connection
therewith, (d) this Article Nine, and (e) the rights of Holders of outstanding
Notes to convert such Notes as provided by Article 4 hereof. Subject to
compliance with this Article Nine, the Company may exercise its option under
this Section 9.02 notwithstanding the prior exercise of its option under
Section 9.03 hereof.


 


Section 9.03.                         Covenant
Defeasance.


 


Upon the Company’s exercise
under Section 9.01 hereof of the option applicable to this Section 9.03, the
Company and the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 9.04 hereof, be released from its obligations under the covenants
contained in Sections 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13, 5.15, 5.16,
5.17, 5.18, 5.19, 5.20, 5.21, 5.22 and 5.23 hereof and Section 6.01 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 9.04 are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 7.01 hereof, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In addition, upon
the Company’s exercise under Section 9.01 hereof of the option applicable to this
Section 9.03 hereof, subject to the satisfaction of the conditions set forth in
Section 9.04 hereof, Sections 7.01(c) through 7.01(j) hereof shall not
constitute Events of Default.


 


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Section 9.04.                         Conditions to
Legal or Covenant Defeasance.


 


The following shall be the
conditions to the application of either Section 9.02 or 9.03 hereof to the
outstanding Notes:


 


In order to exercise either
Legal Defeasance or Covenant Defeasance:


 


(a)           the Company
must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders, cash in United States dollars, non-callable Government Securities, or
a combination thereof, in such amounts as will be sufficient, in the opinion of
a nationally recognized investment bank, appraisal firm or firm of independent
public accountants, to pay the principal of, premium, if any, and interest on
the outstanding Notes on the stated date for payment thereof;


 


(b)           in the case of
an election under Section 9.02 hereof, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;


 


(c)           in the case of an
election under Section 9.03 hereof, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;


 


(d)           no Default or
Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the incurrence
of Indebtedness all or a portion of the proceeds of which will be used to
defease the Notes pursuant to this Article Nine concurrently with such
incurrence) or insofar as Sections 7.01(k) or 7.01(l) hereof is concerned, at
any time in the period ending on the 91st day after the date of deposit;


 


(e)           such Legal
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any material agreement or instrument (other than
this Indenture) to which the Company or any Guarantor is a party or by which
the Company or any Guarantor is bound;


 


(f)            the Company
shall have delivered to the Trustee an Opinion of Counsel (which may be subject
to customary exceptions) to the effect that on the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally;


 


(g)           the Company
shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
over any 


 


70

















 


other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company; and


 


(h)           the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.


 


Section 9.05.                         Deposited Money
and Government Securities to be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 9.06
hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 9.05, the “Trustee”) pursuant to
Section 9.04 hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.


 


The Company and Guarantors shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 9.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.


 


Anything in this Article Nine
to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in Section 9.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 9.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 9.06.                         Repayment to
Company.


 


Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 


 


71

















 


days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.


 


Section 9.07.                         Reinstatement.


 


If the Trustee or Paying
Agent is unable to apply any United States dollars or non-callable Government
Securities in accordance with Section 9.02 or 9.03 hereof, as the case may be,
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s and the Guarantors’ obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 9.02 or 9.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 9.02 or 9.03
hereof, as the case may be; provided, however,
that, if the Company or any Guarantor makes any payment of principal of,
premium, if any, or interest on 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.


 


ARTICLE
10.

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 10.01.                  Without Consent
of Holders of Notes.


 


Notwithstanding Section 10.02
of this Indenture, the Company, the Guarantors and the Trustee may amend or supplement
this Indenture, the Note Guarantees or the Notes without the consent of any
Holder of a Note:


 


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


 


(b)           to provide for
uncertificated Notes in addition to or in place of certificated Notes or to
alter the provisions of Article 2 hereof (including the related definitions) in
a manner that does not materially adversely affect any Holder;


 


(c)           to provide for
the assumption of the Company’s or a Guarantor’s obligations to the Holders of
the Notes under the Indenture, the Notes and the Note Guarantee by a successor
to the Company or a Guarantor pursuant to Article 6 or Article 12 hereof;


 


(d)           to make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not adversely affect the legal rights hereunder or
under, the Notes, the Note Guarantees, the Collateral Trust Agreement and the
Collateral Documents of any Holder of the Note;


 


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


 


(f)            to provide for
the issuance of Additional Notes in accordance with the limitations set forth
in this Indenture as of the date hereof; or


 


72

















 


(g)           to allow any Guarantor
to execute a supplemental indenture and/or a Note Guarantee with respect to the
Notes.


 


In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent under this Indenture, Notes owned by the Company,
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, shall be considered as
though not outstanding; provided, however, that no Holder shall be deemed to be directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company solely by reason of ownership of such Notes. A change
in a defined term used in this Section shall be deemed to be a change to this
Section.


 


Upon the request of the
Company accompanied by a resolution of its Board of Directors authorizing the
execution of any such amended or supplemental Indenture, and upon receipt by
the Trustee of the documents described in Section 8.02 hereof, the Trustee
shall join with the Company and the Guarantors in the execution of any amended
or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.


 


Section 10.02.                  With Consent of
Holders of Notes.


 


Except as provided below in
this Section 10.02, the Company and the Trustee may amend or supplement this
Indenture (including Sections 3.02, 5.10 and 5.15 hereof), the Note Guarantees,
the Notes, the Collateral Trust Agreement and any Collateral Document with the
consent of the Holders of at least a majority in principal amount of the Notes
(including Additional Notes, if any) then outstanding voting as a single class
(including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 7.04 and 7.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on
the Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture, the Note
Guarantees, the Notes, the Collateral Trust Agreement and any Collateral
Document may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including Additional Notes, if
any) voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes).


 


Upon the request of the
Company accompanied by a resolution of its Board of Directors authorizing the
execution of any such amended or supplemental Indenture, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 8.02 hereof, the Trustee shall join with the Company in
the execution of such amended or supplemental Indenture, the Notes, Note
Guarantees, Collateral Trust Agreement or Collateral Document unless such
amended or supplemental Indenture directly 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
amended or supplemental Indenture.


 


73

















 


It shall not be necessary
for the consent of the Holders of Notes under this Section 10.02 to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.


 


After an amendment,
supplement or waiver under this Section becomes effective, the Company shall
mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental Indenture, Notes, Note
Guarantees, Collateral Trust Agreement or Collateral Document or waiver. Subject
to Sections 7.04 and 7.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes (including Additional Notes, if any) then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes, the
Note Guarantees, the Collateral Trust Agreement or any Collateral Document. However,
without the consent of each Holder affected, an amendment or waiver under this
Section 10.02 may not (with respect to any Notes held by a non-consenting
Holder):


 


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


 


(b)           reduce the
principal of or change the fixed maturity of any Note or alter or waive any of
the provisions with respect to the redemption of the Notes except as provided
above with respect to Sections 3.02, 5.10 and 5.15 hereof;


 


(c)           reduce the rate
of or change the time for payment of interest, including default interest, on
any Note;


 


(d)           waive a Default
or Event of Default in the payment of principal of or premium, if any, or
interest on the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including Additional Notes, if any) and a waiver of the
payment default that resulted from such acceleration);


 


(e)           make any Note
payable in money other than that stated in the Notes;


 


(f)            make any change
in the provisions of this Indenture relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of principal or interest or
premium, if any, on the Notes;


 


(g)           make any change
in Section 7.04 or 7.07 hereof or in the foregoing amendment and waiver
provisions;


 


(h)           release any Pledged
Collateral from the Liens of the Collateral Trust Agreement and/or the
Collateral Documents, except as contemplated by the Collateral Trust Agreement
and/or the Collateral Documents;


 


(i)            adversely
affect the conversion rights of the Holders of the Notes set forth in Article 4
hereof; or


 


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(j)            release any
Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture.


 


Section 10.03.                  Compliance with
Trust Indenture Act.


 


Every amendment or supplement
to this Indenture, the Notes, the Note Guarantees, the Collateral Trust
Agreement or any Collateral Document shall be set forth in an amended or
supplemental Indenture that complies with the TIA as then in effect.


 


Section 10.04.                  Revocation and
Effect of Consents.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder of
a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note. However,
any such Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.


 


Section 10.05.                  Notation on or
Exchange of Notes.


 


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


 


Failure to make the
appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.


 


Section 10.06.                  Trustee to Sign
Amendments, etc.


 


The Trustee shall sign any
amended or supplemental Indenture, Note, Note Guarantee, Collateral Trust
Agreement or Collateral Document authorized pursuant to this Article Ten if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company and Guarantors may not
sign an amendment or supplemental Indenture until the Board of Directors or
Guarantor, as applicable, approves it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section 8.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 14.04 hereof, an Officer’s Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.


 


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ARTICLE
11.

COLLATERAL AND SECURITY


 


Section 11.01.                  Collateral
Documents.


 


The due and punctual payment
of the principal of and interest, if any, on the Notes when and as the same
shall be due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest (to the extent permitted by law), if any, on the
Notes and performance of all other obligations of the Company to the Holders of
Notes or the Trustee under this Indenture and the Notes, according to the terms
hereunder or thereunder, shall be secured as provided in the Collateral
Documents. Each Holder of Notes, by its acceptance thereof, consents and agrees
to the terms of the Collateral Documents (including, without limitation, the
provisions providing for foreclosure and release of Pledged Collateral) as the
same may be in effect or may be amended from time to time in accordance with
its terms and authorizes and directs each of the Collateral Agent and the
Trustee, as the case may be, to enter into the Collateral Documents and to perform
its obligations and exercise its rights thereunder in accordance therewith. The
Company shall deliver to the Trustee copies of all documents delivered to the
Collateral Agent pursuant to the any Collateral Document, and shall do or cause
to be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of any Collateral Document, to assure and confirm to
the Trustee and the Collateral Agent the security interest in the Pledged
Collateral contemplated hereby, by any Collateral Document or any part thereof,
as from time to time constituted, so as to render the same available for the
security and benefit of this Indenture, the Notes and the Note Guarantees
secured hereby, according to the intent and purposes herein expressed. The
Company shall take, or shall cause its Subsidiaries to take, upon request of
the Trustee or the Collateral Agent, any and all actions reasonably required to
cause the Collateral Documents to create and maintain, as security for the
Obligations of the Company hereunder, a valid and enforceable perfected first
priority Lien in and on all the Pledged Collateral, in favor of the Collateral
Agent and the Trustee, as the case may be, for the benefit of the Holders of
Notes and other Indebtedness subject to the Collateral Trust Agreement superior
to and prior to the rights of all third Persons and subject to no other Liens other
than Permitted Liens.


 


The Company and the
Guarantors shall pledge as additional Collateral all After-Acquired Property, subject
to Permitted Liens. The Company and the Guarantors shall also use all
commercially reasonable efforts to ensure that any material contract or
agreement relating to After-Acquired Property will not contain provisions that
would impair or prevent the creation of a security interest therein or result
in such contract or After-Acquired Property being excluded from the Collateral.


 


Section 11.02.                  Recording
and Opinions.


 


(a)           The Company shall furnish to the Collateral
Agent and the Trustee contemporaneously with the execution and delivery of this
Indenture and promptly after the execution and delivery of any other instrument
of further assurance or amendment an Opinion of Counsel (i) stating that
in the opinion of such counsel the Collateral Documents are effective to create
a Lien in the collateral described therein to the extent that the Company has
rights in or the power to transfer such collateral and creation of a Lien in
such collateral is governed by Article 9 


 


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of
the UCC; and (ii) stating that in the opinion of such counsel, all action has
been taken with respect to the filing of financing statements as is necessary
to perfect the Lien in that portion of the collateral (x) in which the Company
has rights or the power to transfer, (y) the creation and perfection of a Lien
which is governed by Article 9 of the UCC and (z) in which a Lien can be
perfected by filing a financing statement under the UCC.


 


(b)           The Company shall furnish to the Collateral
Agent and the Trustee on August 15 of each year beginning with August 15, 2006,
an Opinion of Counsel, dated as of such date, (i) stating that the Collateral
Documents have not been terminated or revoked by the Company, and remain in
full force and effect; and (ii) stating that all action has been taken with
respect to the filing of financing statements, continuation statements and
other registrations and recordings as is necessary for the Lien in that portion
of the collateral subject to the Collateral Documents (x) in which the Company
has rights or the power to transfer, (y) the creation and perfection of a Lien
which is governed by Article 9 of the UCC, and (z) in which a Lien can be
perfected by filing a financing statement under the UCC, to continue to be
perfected.


 


(c)           The Company shall otherwise comply with the
provisions of TIA §314(b).


 


Section 11.03.                  Release
of Collateral.


 


(a)           Subject to subsections (b), (c) and (d) of
this Section 11.03, Pledged Collateral shall automatically be released from the
Lien and security interest created by the Collateral Documents at any time or
from time to time in accordance with the provisions of the Collateral Documents
or as provided hereby. In addition, upon the request of the Company pursuant to
an Officers’ Certificate certifying that all conditions precedent hereunder
have been met and stating whether or not such release is in connection with an
Asset Sale and (at the sole cost and expense of the Company and without any recourse,
representation or warranty) the Trustee or the Collateral Agent, as the case
may be, shall release Pledged Collateral that is sold, conveyed or disposed of
in compliance with the provisions of this Indenture; provided,
that if such sale, conveyance or disposition constitutes an Asset Sale, the
Company shall apply the Net Proceeds in accordance with Section 5.10 hereof. Upon
receipt of such Officers’ Certificate the Collateral Agent shall, at the sole
cost and expense of the Company and without recourse, representation or
warranty, execute, deliver or acknowledge any necessary or proper instruments
of termination, satisfaction or release to evidence the release of any Pledged
Collateral permitted to be released pursuant to this Indenture or the Collateral
Documents.


 


(b)           No Pledged Collateral shall be released from
the Liens and security interest created by the Collateral Documents pursuant to
the provisions of the Collateral Documents unless there shall have been delivered
to the Collateral Agent the Officers’ Certificate required by this Section 11.03.


 


(c)           At any time when a Default or Event of
Default shall have occurred and be continuing and the maturity of the Notes
shall have been accelerated (whether by declaration or otherwise) and the
Trustee shall have delivered a notice of acceleration to the Collateral Agent,
no release of Pledged Collateral pursuant to the provisions of the Collateral
Documents shall be effective as against the Holders of Notes.


 


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(d)           The release of any Pledged Collateral from
the terms of this Indenture and the Collateral Documents shall not be deemed to
impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Pledged Collateral is released pursuant to the
terms hereof. To the extent applicable, the Company shall cause TIA
§ 313(b), relating to reports, and TIA § 314(d), relating to the
release of property or securities from the Lien and security interest of the Collateral
Documents and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Collateral
Documents, to be complied with. Any certificate or opinion required by TIA
§ 314(d) may be made by an Officer of the Company except in cases where TIA
§ 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee and the Collateral Agent in
the exercise of reasonable care.


 


Section 11.04.                  Certificates
of the Company.


 


The Company shall furnish to
the Trustee and the Collateral Agent, prior to each proposed release of Pledged
Collateral pursuant to any Collateral Document, (i) all documents required by
TIA §314(d) and (ii) an Opinion of Counsel, which may be rendered by internal
counsel to the Company, to the effect that such accompanying documents
constitute all documents required by TIA §314(d). The Trustee may, to the
extent permitted by Sections 8.01 and 8.02 hereof, accept as conclusive
evidence of compliance with the foregoing provisions the appropriate statements
contained in such documents and such Opinion of Counsel.


 


Section 11.05.                  Certificates
of the Trustee.


 


In the event that the
Company wishes to release Pledged Collateral in accordance with the Collateral
Documents and has delivered the certificates and documents required by the Collateral
Documents and Sections 11.03 and 11.04 hereof, the Trustee shall determine
whether it has received all documentation required by TIA § 314(d) in
connection with such release and, based on such determination and the Opinion
of Counsel delivered pursuant to Section 11.04, shall deliver a certificate to
the Collateral Agent setting forth such determination.


 


Section 11.06.                  Authorization
of Actions to Be Taken by the Trustee Under the Collateral Documents.


 


Subject to the provisions of
Section 8.01 and 8.02 hereof, the Trustee may, in its sole discretion and
without the consent of the Holders of Notes, on behalf of the Holders of Notes,
take, or direct the Collateral Agent to take, all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of the Collateral
Documents and (b) collect and receive any and all amounts payable in respect of
the Obligations of the Company hereunder. The Trustee and the Collateral Agent shall
each have power to institute and maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Pledged Collateral by any acts
that may be unlawful or in violation of the Collateral Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders of Notes in
the Pledged Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if 


 


78

















 


the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders of Notes
or of the Trustee).


 


Section 11.07.                  Authorization
of Receipt of Funds by the Trustee Under the Pledge Agreement.


 


The Trustee is authorized to
receive any funds for the benefit of the Holders of Notes distributed under the
Collateral Documents, and to make further distributions of such funds to the
Holders of Notes according to the provisions of this Indenture.


 


Section 11.08.                  Termination
of Security Interest.


 


Upon the payment in full of
all Obligations of the Company under this Indenture and the Notes, or upon
Legal Defeasance, the Trustee shall, at the request and sole cost and expense
of the Company, deliver a certificate to the Collateral Agent stating that such
Obligations have been paid in full, and instruct the Collateral Agent to
release the Liens pursuant to this Indenture and the Pledge Agreement.


 


ARTICLE
12.

NOTE GUARANTEES


 


Section 12.01.                  Guarantee.


 


Subject to this Article 12,
each of the Guarantors hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that: 
(a) the principal of and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption, repurchase or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately,
whether or not such failure to pay has become an Event of Default which could
cause acceleration pursuant to Article 7 hereof. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.


 


The Guarantors hereby agree
that their obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Guarantor hereby waives and relinquishes diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the 


 


79

















 


Company, protest, notice and
all demands whatsoever and covenant that this Note Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.


 


If any Holder or the Trustee
is required by any court or otherwise to return to the Company, the Guarantors
or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to
the Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.


 


Each Guarantor agrees that
it shall not be entitled to any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between
the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 7 hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event
of any declaration of acceleration of such obligations as provided in Article 7
hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of this Note Guarantee.
The Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.


 


Section 12.02.                  Limitation on Guarantor
Liability.


 


Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of
all such parties that the Note Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to any Note Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will, after
giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 12, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.


 


Section 12.03.                  Continuing
Guarantee.


 


Each Guarantor hereby agrees
that its Note Guarantee set forth in Section 12.01 shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.


 


If an Officer whose signature
is on this Indenture no longer holds that office at the time the Trustee
authenticates the Note, the Note Guarantee shall be valid nevertheless.


 


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The delivery of any Note by
the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.


 


Section 12.04.                  Releases Following
Sale of Assets.


 


In the event of a sale or
other disposition of all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all the capital
stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) the Company or a Subsidiary of the
Company, then such Guarantor (in the event of a sale or other disposition, by
way of merger, consolidation or otherwise, of all of the capital stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such Guarantor) shall
automatically be released and relieved of any obligations under its Note
Guarantee; provided, however, that such sale or
other disposition (including by way of merger, consolidation or otherwise)
shall be made in compliance with the provisions of this Indenture applicable
thereto, including Article Six hereof. Upon delivery by the Company to the
Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect
that such sale or other disposition was made by the Company in accordance with
the provisions of this Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.


 


Any Guarantor not released
from its obligations under its Note Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under this Indenture as provided in this Article Twelve.


 


ARTICLE
13.

SATISFACTION AND DISCHARGE


 


Section 13.01.                  Satisfaction
and Discharge.


 


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


 


(1)                                  either:


 


(a)                                  all Notes that
have been authenticated (except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered to
the Trustee for cancellation; or


 


(b)                                 all Notes that
have not been delivered to the Trustee for cancellation will become due and
payable within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the Trustee for



 


81

















 


cancellation
for principal, premium, if any, and accrued interest to the date of maturity;


 


(2)                                  no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit (other than a Default or Event of Default resulting from
the borrowing of funds to be applied to such deposit) and such deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;


 


(3)                                  the Company or any Guarantor has paid or
caused to be paid all sums payable by it under this Indenture, the Notes and
the Note Guarantees; and


 


(4)                                  the Company has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited money
toward the payment of the Notes at maturity.


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the provisions of Section 13.02 and Section 9.06 shall survive.


 


Section 13.02.                  Application of Trust
Money.


 


Subject to the provisions of
Section 9.06, all money deposited with the Trustee pursuant to Section 13.01
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.


 


If the Trustee or Paying
Agent is unable to apply any money or Government Securities in accordance with
Section 13.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s and any Guarantor’s obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.01; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of 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 or Government Securities held by the
Trustee or Paying Agent.


 


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ARTICLE
14.

MISCELLANEOUS


 


Section 14.01.                  Trust Indenture
Act Controls.


 


If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA
§318(c), the imposed duties shall control.


 


Section 14.02.                  Notices.


 


Any notice or communication
by the Company, any Guarantor or the Trustee to the others is duly given if in
writing and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others’ address:


 


If to the Company and/or any Guarantor:



ICO North America, Inc.

3468 Mt. Diablo Blvd., Suite B-115

Lafayette, CA  94549

Fax: (925) 962-9611

Attention: Craig Jorgens, President


 


With a copy (which shall not constitute notice) to:


 


Davis Wright & Tremaine LLP

2600 Century Square

1501 Fourth Avenue

Seattle, WA  98101

Fax: (206) 628-7699

Attention:  Julie Weston


 


If to the Trustee:

The Bank of New York

101 Barclay Street

New York, N.Y. 10286

Fax:  (212) 815-5707

Attention:  Corporate Trust Administration


 


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


 


All notices and
communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.


 


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Any notice or communication
to a Holder shall be mailed by first class mail, certified or registered,
return receipt requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the Registrar. Any notice
or communication shall also be so mailed to any Person described in TIA
§ 313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.


 


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


 


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


 


Section 14.03.                  Communication
by Holders of Notes with Other Holders of Notes.


 


Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights
under this Indenture or the Notes. The Company, the Guarantors, the Trustee,
the Registrar and anyone else shall have the protection of TIA § 312(c).


 


Section 14.04.                  Certificate and
Opinion as to Conditions Precedent.


 


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


 


(a)         an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 14.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been satisfied; and


 


(b)         an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 14.05 hereof) stating that,
in the opinion of such counsel, all such conditions precedent and covenants
have been satisfied.


 


Section 14.05.                  Statements
Required in Certificate or Opinion.


 


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


 


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


 


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


 


(c)         a statement
that, in the opinion of such Person, he or she 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 satisfied; and


 


84

















 


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


 


Section 14.06.                  Rules by
Trustee and Agents.


 


The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.


 


Section 14.07.                  No Personal
Liability of Directors, Officers, Employees and Stockholders.


 


No past, present or future
director, officer, employee, incorporator or stockholder of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company
or such Guarantor under the Notes, the Note Guarantees, this Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.


 


Section 14.08.                  Governing Law.


 


THE INTERNAL LAW OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section 14.09.                  No Adverse
Interpretation of Other Agreements.


 


This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or
its Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.


 


Section 14.10.                  Successors.


 


All agreements of the
Company in this Indenture and the Notes shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors. All agreements of
each Guarantor in this Indenture shall bind its successors, except as otherwise
provided by Section 12.04.


 


Section 14.11.                  Severability.


 


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


 


85

















 


Section 14.12.                  Counterpart
Originals.


 


The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.


 


Section 14.13.                  Table of
Contents, Headings, etc.


 


The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.


 


[Signatures on following page]


 


86

















 


SIGNATURES


 


Dated as of August 15, 2005


 


	
   

  	
  ICO North America, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig N. Jorgens

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Satellite Services GP

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Satellite Management LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Services Limited

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Satellite Services Limited

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ICO Global Communications
  Canada, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D Schmitt

  	
   

  
	
   

  	
   

  	
  Name: Dennis Schmitt

  	
   

  
	
   

  	
   

  	
  Title: CFO

  	
   

  



 


87

















 


	
   

  	
  The Bank of New York, as
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stacey B. Poindexter

  	
   

  
	
   

  	
   

  	
  Name: STACEY B. POINDEXTER

  	
   

  
	
   

  	
   

  	
  Title: ASSISTANT VICE
  PRESIDENT

  	
   

  



 


88

















 


EXHIBIT A


 


[Face of Note]


 


 


7.5% Senior Secured Notes due 2009


 


	
  No.       

  	
   

  	
  $                        

  



 


ICO North America, Inc.


 


	
  promises
  to pay to

  	
   

  
	
   

  
	
  or
  registered assigns,

  
	
   

  
	
  the
  principal sum of

  	
   

  
			



 


Dollars on August 15, 2009.


 


Interest Payment Dates:  February 15 and August 15


 


Record Dates:  February 1 and August 1


 


Issue Date: August 15, 2005


 

















 


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


 


Dated:  August 15, 2005


 


 


	
   

  	
  ICO North America, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 


This is one of the Notes
referred to

in the within-mentioned Indenture:




	
  The Bank of New York,

  	
   

  
	
  as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  	
   

  



 

















 


[Back of Note]


 


7.5% Senior Secured Notes due 2009


 


THIS NOTE, THE NOTE GUARANTEE AND THE SHARES OF CLASS A COMMON
STOCK OF ICO NORTH AMERICA, INC. ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE, THE NOTE GUARANTEE, THE
SHARES OF CLASS A COMMON STOCK OR OTHER SECURITIES ISSUABLE UPON
CONVERSION OF THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS NOTE IS
HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.


 


THE
HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH ICO NORTH AMERICA, INC. OR ANY AFFILIATE
OF ICO NORTH AMERICA, INC. WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF
SUCH NOTE) ONLY (A) TO ICO NORTH AMERICA, INC. OR ANY PARENT OR SUBSIDIARY
THEREOF, (B)  TO A PERSON IT REASONABLY BELIEVES IS AN INSTITUTIONAL “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL “ACCREDITED
INVESTOR” TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 501(a)(1), (2), (3) OR (7), (C) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO ICO NORTH AMERICA, INC.’S AND
THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER DULY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.


 


ADDITIONAL
TRANSFER RESTRICTIONS ARE SET FORTH IN THE INDENTURE.


 


THE HOLDER OF THIS NOTE IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH
THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.


 


FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), THIS NOTE IS ISSUED
WITH ORIGINAL ISSUE DISCOUNT. THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE 


 

















 


HOLDER OF THIS NOTE, UPON WRITTEN REQUEST, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE PRICE, THE ISSUE DATE AND THE YIELD TO MATURITY. ANY SUCH
WRITTEN REQUEST SHOULD BE SENT TO CRAIG JORGENS, PRESIDENT, AT THE FOLLOWING
ADDRESS: ICO NORTH AMERICA, INC., 3468 DIABLO BLVD., SUITE B-115, LAFAYETTE, CA
94549.


 


Capitalized terms used herein shall have the
meanings assigned to them in the Indenture referred to below unless otherwise
indicated.


 


1. INTEREST. ICO North America, Inc., a Delaware
corporation (the “Company”), promises to pay interest on the principal amount
of this Note at 7.5% per annum from August 15, 2005 until maturity, and shall
pay any Additional Interest payable pursuant to the Indenture, this Note and Section 2.1(e)
of the Registration Rights Agreement referred to in the Indenture.


 


The Company will pay interest semi-annually in arrears on February 15
and August 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an “Interest Payment Date”). Interest on this
Note will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further,
that the first Interest Payment Date shall be February 15, 2006; and provided, further, that on any Interest Payment Date after
the fourth Interest Payment Date, if no Default or Event of Default has occurred
and is continuing, the Company may elect to make payments of interest on the
Notes in Additional Notes having an aggregate principal amount equal to the
amount of interest payable on such Interest Payment Date; provided,
further, however, that if the Company elects to make any interest
payment in Additional Notes, the interest rate applicable to this Note for the
period to which such interest payment relates shall be 1% higher than the
interest rate otherwise payable hereon on such Interest Payment Date.


 


Notwithstanding the foregoing, in the event that a Qualifying Event has
not occurred on or prior to the third anniversary of the date of the Indenture,
all interest payments on the Notes shall be made in cash and not in Additional
Notes and the interest rate on the Notes shall be increased as provided in
Section 5.16 of the Indenture. In addition, in the event that, on or prior to
June 30, 2006, Parent has not begun to file the reports with the SEC that
Parent would be required to file if it were subject to the reporting
requirements of section 13 or section 15(d) of the Exchange Act, the annual
interest rate applicable to the Notes shall increase by 2.0% until such time as
Parent has begun to file such reports.


 


The Company has deposited the Escrowed Interest into an escrow account;
and payments from of the Escrowed Interest are subject to the terms of the
Escrow Agreement between the Company, the Trustee and the escrow agent and this
Indenture.


 


The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at a rate that is 1% per annum in excess
of the rate then in effect; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.


 


2. METHOD
OF PAYMENT. The Company will
pay interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on February 1 or August 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record 


 

















 


date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium, if any,
and interest at the office or agency of the Company maintained for such purpose
within or without The City and State of New York, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium on, all Notes the Holders of
which shall have provided wire transfer instructions to the Company or the
Paying Agent. Such payment shall be in such coin or currency of The United
States of America as at the time of payment is legal tender for payment of
public and private debts.


 


3. PAYING
AGENT, CONVERSION AGENT, AND REGISTRAR. Initially, The Bank of New York, a New York banking corporation, as the
Trustee under the Indenture, will act as Paying Agent, Conversion Agent and
Registrar. The Company may change any Paying Agent, Conversion Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.


 


4. INDENTURE
AND PLEDGE AGREEMENT. The
Company issued the Notes under an Indenture dated as of August 15, 2005 (“Indenture”)
between the Company, the Guarantors named therein and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb) (the “Trust Indenture Act”). The Notes are subject
to all such terms, and Holders are referred to the Indenture and to the Trust
Indenture Act for a statement of such terms. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Initial Notes
are secured obligations of the Company limited to $650.0 million in aggregate
principal amount. The Notes are secured as provided in the Collateral Documents
referred to in the Indenture.


 


5. OPTIONAL
REDEMPTION.


 


The Notes are not redeemable at the option of
the Company or any Holder.


 


6. MANDATORY
REDEMPTION.


 


Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with
respect to the Notes.


 


7. REPURCHASE
AT OPTION OF HOLDER.


 


(a)  If there is a Change of Control, the Company
shall be required to make an offer (a “Change of Control Offer”) to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of each
Holder’s Notes at a purchase price equal to 107.5% of the aggregate principal
amount thereof plus a pro rata portion of any remaining Escrowed Interest and accrued
and unpaid interest thereon, if any, to the date of purchase, subject to the
right of Holders on the relevant record date to receive interest due on the
relevant interest payment date (the “Change of Control Payment”). Within 10
days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and setting forth the procedures governing the Change of Control Offer
as required by the Indenture.


 


(b)  If the Company or a Subsidiary consummates
any Asset Sales, or in an Event of Loss, within five days of each date on which
the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company shall
commence an offer to all Holders of Notes (as “Excess Proceeds Offer”) pursuant
to 


 

















 


Section 3.02 of the Indenture to purchase the
maximum principal amount of Notes (including any Additional Notes), plus such other
pari passu secured Indebtedness as
provided by the Indenture, that may be purchased out of the Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest thereon, if any, to the date fixed for
the closing of such offer in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes (including any
Additional Notes) and other pari passu
secured Indebtedness tendered pursuant to an Excess Proceeds Offer is less than
the Excess Proceeds, the Company (or such Subsidiary) may use remaining Excess
Proceeds for any purpose not otherwise prohibited by the Indenture. If the
aggregate principal amount of Notes and other pari passu
secured Indebtedness surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Holders of Notes that are the subject
of an offer to purchase will receive an Excess Proceeds Offer from the Company
prior to any related purchase date and may elect to have such Notes purchased
by completing the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes.


 


8. NOTICE
OF REPURCHASE. Notice of repurchase
will be mailed at least 30 days but not more than 60 days before the repurchase
date to each Holder whose Notes are to be repurchased at its registered address.
Notes in denominations larger than $1,000 may be repurchased in part but only
in whole multiples of $1,000, unless all of the Notes held by a Holder are to
be repurchased. On and after the repurchase date interest ceases to accrue on
Notes or portions thereof called for repurchase.


 


9. CONVERSION. A Holder of a Note may convert such Note
(or any portion thereof equal to $1,000 or any integral multiple of $1,000 in
excess thereof), and subject to certain conditions the Notes will automatically
convert, into shares of the Company’s Class A Common Stock, subject to the
conditions set forth in Section 4.01 of the Indenture. The initial Conversion
Price is $4.25 per share of the Company’s Class A Common Stock and is
subject to adjustment as provided in the Indenture.


 


To convert a Note, a Holder must (a) complete
and manually sign the conversion notice set forth below and deliver such notice
to a Conversion Agent, (b) surrender the Note to a Conversion Agent, (c)
furnish appropriate endorsements and transfer documents if required by a
Registrar or a Conversion Agent, and (d) pay any transfer or similar tax, if
required. A Holder may convert a portion of a Note equal to $1,000 or any
integral multiple thereof.


 


A Note in respect of which a Holder had
delivered an “Option of Holder to Elect Purchase” form exercising the option of
such Holder to require the Company to purchase such Note pursuant to an Excess
Proceeds Offer or a Change of Control Offer may be converted only if such form is
withdrawn in accordance with the terms of the Indenture.


 


10. DENOMINATIONS,
TRANSFER, EXCHANGE. The
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
repurchase, except for the unpurchased portion of any Note being repurchased in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be repurchased.


 


Notwithstanding anything in
the Indenture or this Note to the contrary, prior to an initial public offering
of any Common Stock of the Company, so long as no Default or Event of Default
has occurred or is continuing, the Holder hereof shall be required to obtain
the prior written consent of the Company 


 

















 


(which consent shall not be unreasonably
withheld, conditioned or delayed), prior to the sale, disposition or other
transfer of this Note, or any rights associated with any Note, in whole or in
part, to any Person other than to an Affiliate of a Holder, another Holder, or
to Jefferies & Co. or UBS Securities LLC (who shall become a Holder hereof
upon such purchase); provided that,
so long as no Default or Event of Default has occurred and is continuing, the
Company shall have the right, exercisable in its sole discretion, to restrict
and expressly prohibit any sale, disposition or other transfer of this Note
from any Holder to any competitor of the Company in the mobile satellite
wireless telecommunications industry (or any Subsidiary or other entity
controlled by such competitor); and the Holder hereof shall be deemed to have
consented to the foregoing restriction on sale, disposition or transfer.


 


11. PERSONS
DEEMED OWNERS. The Holder of
a Note may be treated as its owner for all purposes.


 


12. AMENDMENT,
SUPPLEMENT AND WAIVER. Subject
to certain exceptions, the Indenture, the Notes and the Collateral Documents
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes and Additional
Notes, if any, voting as a single class, and any existing default or compliance
with any provision of the Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes
and Additional Notes, if any, voting as a single class. Without the consent of
any Holder of a Note, the Indenture, the Notes and the Collateral Documents may
be amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes or to alter the provisions of Article 2 of the Indenture in a manner that
does not adversely affect any Holder, to provide for the assumption of the
Company’s or a Guarantor’s obligations to Holders of the Notes in case of a merger
or consolidation, to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the
legal rights under the Indenture, the Notes, the Note Guarantees, the
Collateral Trust Agreement and the Collateral Documents of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, to provide for
the Issuance of Additional Notes in accordance with the limitations set forth
in the Indenture or to allow any Guarantor to execute a supplemental indenture
and/or a Note Guarantee with respect to a Note.


 


13. DEFAULTS
AND REMEDIES. Events of
Default include:  (i) default for 30 days
in the payment when due of interest on the Notes; (ii) default in payment when
due of principal of or premium, if any, on the Notes when the same becomes due
and payable at maturity, upon redemption (including in connection with an offer
to purchase) or otherwise, (iii) failure by the Company to comply with Section 5.07,
5.09, 5.10, 5.15, 5.22 or 6.01 of the Indenture; (iv) failure by the Company
for 30 days after notice to the Company by the Trustee or the Holders of at
least 25% in principal amount of the Notes (including Additional Notes, if any)
then outstanding voting as a single class to comply with certain other
agreements in the Indenture, the Notes, the Note Guarantees or the Collateral
Documents; (v) default under certain other agreements relating to Indebtedness
of the Company which default results in the acceleration of such Indebtedness
prior to its express maturity or is caused by the failure to pay principal of,
or interest or premium, if any, on, such Indebtedness prior to the expiration
of the grace period provided in such Indebtedness on the date of such default;
(vi) certain final judgments for the payment of money that remain undischarged,
unpaid or unstayed for a period of 60 days; (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Material Subsidiaries; (viii)
the revocation, cancellation or relinquishment of any of the Company’s or its
Subsidiaries’ MSS/ATC FCC Licenses, which action is not subject to further
appeal at the FCC; and (ix) except as otherwise permitted by the
Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and
effect, or any Guarantor, or any Person acting on behalf of any Guarantor,
denies or disaffirms its obligations under its Note Guarantee; (x) except as
otherwise 


 

















 


permitted by the Indenture, the Collateral Trust Agreement or any Collateral
Document is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect; provided that it shall not be an Event of
Default under this clause (x) if the sole result is that any Lien
purported to be granted on any Collateral (as defined in the Collateral Trust
Agreement), individually or in the aggregate, having a Fair Market Value of not
more than $25.0 million, ceases to be an enforceable and perfected first
priority Lien, subject only to Permitted Liens; and (xi) except as otherwise
permitted by the Indenture, any Lien purported to be granted under the
Collateral Trust Agreement or any Collateral Document on any Collateral having
a Fair Market Value, individually or in the aggregate, in excess of $25.0
million is held in any judicial proceeding not to be an enforceable and
perfected first priority Lien or ceases for any reason to be in full force and
effect, subject only to Permitted Liens. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes and any remaining Escrowed Interest to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes plus any
remaining Escrowed Interest will become due and payable without further action
or notice. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the Company
is required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.


 


14. UNCLAIMED MONEY. If money for the
payment of principal or interest, if any, remains unclaimed for two years, the
Trustee or Paying Agent shall pay the money back to the Company
at its written request, subject to applicable unclaimed property laws. After
that, Holders entitled to money must look to the Company for payment as general
creditors unless applicable abandoned property law designates another person.


 


15. TRUSTEE
DEALINGS WITH COMPANY. The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.


 


16. NO
RECOURSE AGAINST OTHERS. A
director, officer, employee, incorporator or stockholder, of the Company or any
of the Guarantors, as such, shall not have any liability for any obligations of
the Company or such Guarantor under the Notes, the Note Guarantees or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.


 


17. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


18. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 

















 


19. CUSIP
NUMBERS. Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes and
the Trustee may use CUSIP numbers in notices of redemption or repurchase as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


20. GOVERNING LAW. THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
NOTE, THE NOTE GUARANTEES AND THE INDENTURE, WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISIDICTION WOULD BE REQUIRED THEREBY.


 


The Company will furnish to any Holder upon
written request and without charge a copy of the Indenture, the Registration
Rights Agreement, the Escrow Agreement, the Collateral Trust Agreement and any
Collateral Document. Requests may be made to:


 


ICO
North America, Inc.


3468
Mt. Diablo Blvd., Suite B-115

Lafayette, CA  94549


Attention:  Chief Financial Officer


 

















 


ASSIGNMENT FORM


 


To assign this Note, fill in
the form below:


 


	
  (I)
  or (we) assign and transfer this Note to:

  	
   

  
	
  (Insert assignee’s legal
  name)

  
	
   

  
	
   

  
	
  (Insert
  assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print
  or type assignee’s name, address and zip code)

  
	
   

  
	
  and
  irrevocably appoint

  	
   

  
	
  to
  transfer this Note on the books of the Company. The agent may substitute
  another to act for him.

  
			



 


	
  Date: 

  	
   

  	
   

  
	
   

  
	
  Your Signature:

  	
   

  	
   

  
	
  (Sign exactly as your name appears on the face of this

  Note)

  
	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
							



 






*              Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 

















 


CONVERSION NOTICE


 


To convert this Note into Class A
Common Stock of the Company, check the box:  o


 


To convert only part of this
Note, state the principal amount to be converted (must be $1,000 or an integral
multiple of $1,000):  $                                                              .


 


If you want the stock
certificate made out in another person’s name, fill in the form below:


 


	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  



 


 


	
   

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the

  
	
   

  	
   

  	
  other side of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
  *Signature guaranteed by:

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
							



 






*                                         The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs:  (i) the Securities Transfer Agent Medallion
Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP);
(iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other
guaranty program acceptable to the Trustee.


 

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have
this Note purchased by the Company pursuant to Section 5.10 or 5.15 of the Indenture,
check the appropriate box below:


 


o  Section 5.10                     o  Section 5.15


 


If you want to elect to have
only part of the Note purchased by the Company pursuant to Section 5.10 or
Section 5.15 of the Indenture, state the amount you elect to have purchased:


 




	
  $

  	
   

  






 


	
  Date:

  	
   

  	
   

  



 


	
  Your Signature:

  	
   

  	
   

  
	
  (Sign exactly as your name appears on the face of this

  Note)

  
	
   

  
	
  Tax Identification No.:

  	
   

  	
   

  
	
   

  
	
  Signature Guarantee*: 

  	
   

  	
   

  
							



 






*              Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).